Is my confidential info protected?

2016-11-09 06:01
Nanette Janse van Rensburg

Nanette Janse van Rensburg

Multimedia   ·   User Galleries   ·   News in Pictures Send us your pictures  ·  Send us your stories


I have an appointment with an attorney to obtain legal advice on my business and its structuring. I will have to share certain confidential information regarding my business with him. Does this fall under the protection of attorney-client privilege?


It is important to understand that confidentiality and attorney-client or legal professional privilege are two different concepts providing different protection.

The ambit of confidentiality is much wider than legal professional privilege and may arise from a contractual or fiduciary relationship between an attorney and client.

Accordingly, even though information has to be confidential in order to be privileged, confidentiality on its own does not necessarily entitle one to claim privilege. An attorney may agree that he will keep all information shared by a client confidential, but our law does not necessarily afford the protection of privilege to all of the communications between an attorney and client.

The right to protect the communications belongs to the client and only he or she may expressly waive this right and it will even survive termination of the mandate between the attorney and the client or the death of the client.

Legal professional privilege may be raised by a party in court proceedings to resist disclosure of information as evidence. An agreement between an attorney and client that all communication will be kept confidential does not, for example, stop a court from requiring the disclosure of certain communications that are relevant to a matter forming the subject of litigation. In order to raise privilege during court proceedings, the following requirements in respect of the communications must be met:

  • The attorney must have acted in a professional capacity.
  • The client must have consulted with the attorney in confidence.
  • The communication must have been made for the purpose of obtaining legal advice.
  • The advice given must not facilitate the commission of a crime or fraud.

Confidentiality thus protects communications between attorneys and their clients from disclosure to third parties, but not in all instances against disclosure in court proceedings or where required to be disclosed by law.

On the other hand, legal professional privilege, limited to only specific types of qualifying communications, does afford protection against such disclosures.

So although communications regarding your business with your attorney will be confidential, it may not qualify for legal professional privilege, unless it can be seen not as business advice, but as legal advice provided to you.

– Nanette Janse van Rensburg, associate, Phatshoane Henney Attorneys

Join the conversation! encourages commentary submitted via MyNews24. Contributions of 200 words or more will be considered for publication.

We reserve editorial discretion to decide what will be published.
Read our comments policy for guidelines on contributions.

Inside News24

Watch: Investing in the future through child development

An investment of R32-million into 11 early childhood development centres is changing the future for children in the Northern Cape.

Traffic Alerts
There are new stories on the homepage. Click here to see them.


Create Profile

Creating your profile will enable you to submit photos and stories to get published on News24.

Please provide a username for your profile page:

This username must be unique, cannot be edited and will be used in the URL to your profile page across the entire network.


Location Settings

News24 allows you to edit the display of certain components based on a location. If you wish to personalise the page based on your preferences, please select a location for each component and click "Submit" in order for the changes to take affect.

Facebook Sign-In

Hi News addict,

Join the News24 Community to be involved in breaking the news.

Log in with Facebook to comment and personalise news, weather and listings.