There are two types of legal professional privilege recognized in Malaysia.

Legal advice privilege protects any communication made in the course of the professional employment of a lawyer by a client seeking legal advice.

Litigation privilege protects any communication between a client and legal professional advisers or a third party, created at the behest of the party to a litigation or their solicitor, if the dominant purpose of the communication was to obtain legal advice for use in litigation.

The Evidence Act confers protection upon such communications, documents and advice by rendering them inadmissible in any court or judicial proceedings. As such, whatever the circumstances in which disclosure of privileged communications is sought of a solicitor in the litigation process, they are bound to assert the privilege and resist such disclosure unless the client expressly waives that privilege. Furthermore, a document cannot be admitted as evidence if it is privileged, even if it is in the hands of the opposite party or if it has been wrongly released to the opposite side in discovery proceedings.

The only exceptions where disclosure or discovery of otherwise privileged communications is required in litigation are set out in the Evidence Act. These exceptions apply to the following:

• Any communication made in furtherance of any illegal purpose
• Any fact observed by any advocate in the course of their employment showing that crime or fraud has been committed since the commencement of their employment

It is also worth noting that the Evidence Act provides that where clients have offered to give witness evidence, they may be compelled to disclose any privileged communications as may appear necessary to the court to be known in order to explain any evidence that they have given.