The Continuing Duty of Solicitors to Protect Client Confidentiality under Section 126 of the Evidence Act 1950

LEGAL UPDATE / FIRM ARTICLE

ONCE PRIVILEGED, ALWAYS PRIVILEGED

Recently, our firm has had the opportunity to act in a matter involving issues concerning solicitor-client privilege and the disclosure and use of confidential communications by a former solicitor.

Given that the disputed documents had previously been disclosed and filed by the former solicitors and remain accessible as part of the public Court record, our firm considers it important to protect the interests and confidentiality of the client. Accordingly, the identities of the parties and other particulars which may identify the client or the underlying proceedings are deliberately omitted from this article.

The discussion below is therefore presented at a general level, with the relevant legal principles drawn from the Court’s decision, without reproducing or identifying confidential or privileged material.

A Recent Matter Handled by Our Firm

1. Privileged Between Solicitor And Client: A Duty That Survives The Retainer

Legal professional privilege is one of the important safeguards underpinning the solicitor-client relationship. A client must be able to communicate openly and candidly with his or her solicitor, knowing that confidential communications, documents and legal advice exchanged in the course of the retainer will not later be used against the client merely because the solicitor-client relationship has come to an end.

Section 126 of the Evidence Act 1950 expressly provides that an advocate shall not, without the client’s express consent, disclose communications made to the advocate in the course and for the purpose of the advocate’s employment, state the contents or condition of documents with which the advocate became acquainted in the course of professional employment, or disclose advice given by the advocate to the client. Importantly, the statutory explanation to section 126 states that the obligation continues after the employment has ceased.

The practical question becomes particularly important where a former solicitor seeks to commence or defend proceedings against a former client—for example, an action concerning unpaid legal fees—and wishes to rely on communications or documents obtained during the former retainer. The solicitor’s position as a litigant does not, by itself, extinguish the former client’s privilege.

The High Court’s decision in our client’s suit filed against the former solicitor provides a useful illustration. The decision reinforces that the duty of confidentiality is continuing, that legal professional privilege under section 126 is absolute unless waived by the privilege holder, and that a solicitor who wishes to rely on potentially privileged material must take appropriate steps before placing that material before the Court.

2. Brief Facts Of The Case

The Plaintiff had appointed the Defendant, a sole proprietor of a law firm, to act for and advise the Plaintiff in connection with earlier litigation. During the retainer, communications—including WhatsApp communications between the Defendant and the Plaintiff’s authorised representative—were exchanged in the course of the solicitor-client relationship.

The solicitor-client relationship subsequently ended following a dispute concerning legal fees. The former solicitor then commenced proceedings against the Plaintiff to recover alleged outstanding legal fees.

In the course of those proceedings, the former solicitor filed and relied upon WhatsApp communications which had originated from the earlier solicitor-client relationship. The communications were subsequently extracted from the Court record and circulated to third parties, resulting in further attempts to place the same communications before other Courts.

The Plaintiff maintained that the communications were privileged under section 126 of the Evidence Act 1950 and that no express consent had ever been given for their disclosure. The Plaintiff therefore commenced an Originating Summons seeking, among other reliefs, declarations that the communications were privileged and injunctive relief restraining their further disclosure, use, reproduction and distribution.

3. The Originating Summons: Declaration And Injunction

The Plaintiff’s Originating Summons sought a number of reliefs. For present purposes, two aspects are particularly significant.

1. A declaration that the identified WhatsApp communications exchanged during the relevant period were privileged documents protected under section 126 of the Evidence Act 1950.
2. An injunction restraining the Defendant from disclosing, using, reproducing, distributing or otherwise dealing with the privileged communications.

The application also sought consequential protective orders concerning the electronic Court records, including restrictions on access, downloading and display of the documents, as well as other consequential reliefs. The central issue, however, was whether the former solicitor could continue to use communications obtained during the former retainer without the former client’s express consent.

4. The Defendant’s Position: Privileged, But Within An Exception?

Significantly, the Defendant did not simply dispute the privileged character of the communications. The judgment records that the Defendant himself had admitted that the WhatsApp communications were privileged in nature. The Defendant nevertheless sought to justify their use by relying on the exceptions contained in section 126.

Section 126 contains limited exceptions, including communications made in furtherance of an illegal purpose and facts observed by an advocate in the course of employment showing that a crime or fraud had been committed since the commencement of the employment.

The Court was not persuaded by the Defendant’s attempt to invoke the statutory exception. The Court concluded that the Defendant’s reliance on the exception was unsustainable. The Court also found that the Defendant, the law firm and its representatives had failed to discharge the heavy burden of demonstrating that there was no real risk of misuse of the Plaintiff’s confidential and privileged information.

5. The High Court’s Findings

The High Court delivered its judgment on 5 July 2026 and allowed the Plaintiff’s application.

The Court’s reasoning may be distilled into several important findings:

• A solicitor-client relationship existed between the Plaintiff and the Defendant, and privileged and confidential information had been obtained during that representation.
• The communications in question were made during the period when the Defendant and his firm were acting as the Plaintiff’s solicitors and were therefore protected under section 126.
• The obligation of confidentiality continued notwithstanding the termination of the solicitor-client relationship.
• The Defendant had not obtained the Plaintiff’s express consent to disclose the communications.
• The Defendant’s attempt to rely on the statutory exception under section 126 was unsustainable.
• The Defendant and those acting through him had failed to take sufficient proactive steps to prevent further disclosure or misuse of the privileged material.
• Court intervention was warranted to prevent further disclosure, reproduction and distribution of the Plaintiff’s privileged communications.

6. The Law: Section 126 And The Principle Of ‘Once Privileged, Always Privileged’

Section 126 is not merely a rule concerning admissibility of evidence. It protects the confidentiality of communications and legal advice arising from the solicitor-client relationship. The statutory language is deliberately continuing: the advocate is not permitted to disclose the protected material without the client’s express consent, and the statutory explanation expressly states that the obligation continues after the employment has ceased.

6.1 Once privileged, always privileged

The High Court relied on the established principle that legal professional privilege is not lost merely because the confidential information has subsequently come into the possession of another person or has been disclosed without authority. The judgment refers to the common law maxim ‘once privileged, always privileged’ and adopts the position that the privilege remains until it is waived by the privilege holder.

This principle was traced through authorities including Dato’ Anthony See Teow Guan v See Teow Chuan & Anor [2009] 3 MLJ 14 and the authorities discussed therein. The Court held that legal professional privilege under section 126 is absolute and remains so until waived by the client.

6.2 The privilege is absolute and survives termination of the retainer

The effect is particularly important for former solicitors. The end of the retainer does not create a new freedom to disclose what was learned during the retainer. The Court expressly recognised that the duty of confidentiality owed by an advocate and solicitor to a former client is absolute and survives termination of the retainer.

The judgment also referred to the principle in Prince Jefri Bolkiah v KPMG [1999] 2 AC 222, namely that a solicitor’s duty extends beyond simply refraining from deliberate disclosure. The solicitor must take care to ensure that the former client is not exposed to the risk of careless, inadvertent or negligent disclosure of confidential information.

6.3 Waiver requires the client’s express consent

The privilege belongs to the client. Accordingly, the solicitor cannot unilaterally waive the client’s privilege simply because the solicitor considers disclosure useful or necessary for his or her own case.

TIn Malaysian Newsprint Industries Sdn Bhd v Bechtel International Inc & Anor [2016] 7 MLJevi 152, the Federal Court authority of Dato’ Anthony See Teow Guan was relied upon for the proposition that the privilege is absolute. Therefore, the waiver could not be treated as a selective or partial forensic device.

Accordingly, where a solicitor wishes to rely on material originating from a former retainer, the safer and principled course is to obtain the former client’s express consent or seek appropriate directions from the Court before disclosure.

6.4 Privilege should not be circumvented by selective disclosure or redaction

The important practical point is not that every privileged document can never be redacted. Rather, a solicitor should not unilaterally select portions of a privileged communication, remove or conceal other portions, and then place the remainder before the Court as though privilege had disappeared. Any issue of waiver, scope of disclosure, redaction or protective measures should be addressed expressly and, where necessary, by the Court.

The judgment is particularly instructive because the Defendant had opportunities to inform the relevant Court of the privileged status of the communications and to seek redaction or removal. The High Court noted that such proactive steps had not been taken, despite the Defendant having previously taken steps to seek redaction or removal on another occasion.

7. What Types Of Material May Attract Privilege?

The protection under section 126 is directed at communications, documents and legal advice exchanged or obtained in the course and for the purpose of the professional engagement. The following are practical examples relevant to day-to-day legal practice:

7.1 Legal advice, recommendations and solicitor-client communications

• Legal advice given by the solicitor to the client in relation to the client’s matter.
• Solicitor’s recommendations, opinions, strategy discussions and suggestions communicated to the client.
• Emails and WhatsApp messages containing or recording such legal advice and confidential instructions.
• Documents or information communicated by the client to the solicitor for the purpose of obtaining legal advice.

The High Court case involved WhatsApp communications between the former solicitor and the Plaintiff’s authorised representative. The Court found that these communications contained confidential and privileged information arising from the solicitor-client relationship.

7.2 Draft documents prepared on the client’s instructions

Draft documents can also attract legal professional privilege where they constitute an internal legal product prepared on the client’s instructions and intended to remain within the solicitor-client relationship until the client decides that the document is ready for disclosure.

In Malaysia Debt Ventures Berhad v Platinum Techsolve Sdn Bhd [2020] MLJU 1421, the Court of Appeal discussed the distinction between an internal legal product prepared on the client’s instructions and a document intended to be mutually agreed with and disclosed to a counterparty. The Court’s discussion recognises that a draft which remains with the solicitor or client, and has not been disclosed to the counterparty, may remain within the protective scope of legal professional privilege.

The important qualification is purpose. A document does not become privileged merely because a solicitor happened to prepare it. The question remains whether it is genuinely an internal legal product, prepared in the course and for the purpose of the solicitor’s professional employment, rather than a document intended from the outset to be shared with an opposing or contracting party.

8. What If A Former Solicitor Wants To Sue For Legal Fees?

A solicitor is entitled to pursue a legitimate claim for outstanding professional fees. However, the existence of that claim does not automatically permit the solicitor to disclose every communication or document obtained during the former retainer.

This is where the competing positions must be kept separate. The solicitor may have a legitimate personal interest in proving the retainer, work done, bills rendered, payments received and balance allegedly outstanding. That does not necessarily mean that privileged legal advice, confidential instructions, litigation strategy or solicitor-client communications may be placed before the Court.

Before relying on material from the former retainer, the solicitor should therefore conduct a privilege review and ask: Is this a communication made in the course and for the purpose of the retainer? Does it contain legal advice or confidential instructions? Has the client expressly waived privilege? Does a statutory exception genuinely apply? If there is any doubt, the issue should be raised with the former client and, where necessary, with the Court.

9. A Practical Warning: Do Not File First And Ask Questions Later

One of the strongest practical lessons from the decision is the importance of taking proactive protective steps before filing potentially privileged material.

Once a document is uploaded into an electronic Court filing system, it may become accessible to other parties and may subsequently be extracted, copied, relied upon or circulated. In the present case, the High Court found that the filing of the privileged communications in the electronic Court record resulted in further exposure to third parties.

Accordingly, where a solicitor believes that a document is relevant to a claim but potentially privileged, the solicitor should not simply upload the document into the Court’s electronic filing system and deal with privilege afterwards.

The solicitor needs to:-

1. Identify and segregate the potentially privileged material before filing.
2. Consider whether the former client has expressly waived privilege.
3. If consent is not available, consider whether an application or directions should first be sought from the Court.
4. Where appropriate, alert the Court and the other parties to the privilege issue before the document is placed on the public-facing Court record.
5. If redaction, sealing, restricted access or another protective mechanism is appropriate, seek the necessary order or direction rather than assuming that unilateral redaction resolves the privilege issue.

The High Court specifically criticised the failure to take proactive measures and observed that there was a continuing risk of further misuse where third parties were already in possession of the communications.

10. The Former Client Remains Entitled To Protection

The decision is a reminder that the solicitor’s professional responsibility does not end when the retainer ends. A former client remains entitled to expect that information entrusted to the solicitor in confidence will not later be used against the client simply because the solicitor and client have become adversaries.

This is particularly significant where the former solicitor becomes a litigant. The solicitor may then have two competing positions: first, as a litigant seeking to protect his or her own interests; and second, as a former legal adviser who remains under a continuing duty to preserve the former client’s confidentiality. The High Court recognised this tension and treated the continuing duty of confidentiality as a significant consideration.

11. Conclusion

The principle is straightforward but fundamental: privilege belongs to the client, not to the solicitor. A communication that is privileged does not become freely usable merely because the retainer has ended, because the solicitor later becomes a claimant, or because the material may appear useful to prove a case.

Section 126 of the Evidence Act 1950, read with the authorities considered by the High Court, protects the confidentiality of solicitor-client communications and preserves that protection after the retainer has ceased. Unless the client expressly waives the privilege, or a recognised statutory exception is established, the solicitor must continue to respect the privilege.

The practical message for advocates and solicitors is equally important: privilege should be addressed before filing, not after filing. Where potentially privileged material is relevant to proceedings, proactive steps should be taken to protect the former client’s interests and to obtain consent or appropriate directions before disclosure.

In short, the end of the retainer does not mark the end of the duty. Once privileged, always privileged.

Disclaimer

This article is published strictly for general information and educational purposes only and is not intended to constitute legal advice, a legal opinion, or a substitute for professional legal advice. The contents are provided for general informational purposes and should not be relied upon in respect of any particular facts, circumstances or legal matter without obtaining independent legal advice.

This article, including its contents, analysis and discussion, is strictly not to be used for the purpose of initiating, conducting, supporting or defending any legal proceedings, or for any other legal, commercial or professional purpose, without prior written consent from our firm. No part of this article should be reproduced, distributed, published, copied, adapted or relied upon without such consent.

For the avoidance of doubt, the omission of the parties’ names and other identifying particulars is intentional and is made to preserve the confidentiality and protect the interests of the client.

Prepared by Cheang Angel