Legal professional privilege — what do we make of it in jurisdiction Malta? Part 1

Abstract

Malta is a European Union and Commonwealth Member, and among the family of the “mixed” jurisdictions, being a Civil Law jurisdiction with extensive Common Law experience. This article will assess Legal Professional Privilege in the small island state. The historical, domestic and contemporary ECHR/EU sources, along with other areas such as the sometimes-blurred distinction or overlapping between professional secrecy, confidentiality and Privilege and the jurisprudential contribution of the Maltese Courts, are reviewed. The review addresses ethical standards including the recommendations of the Council of European Bars, joint and common-interest Privilege, whether Privilege on legal advice in a foreign jurisdiction can be upheld, the situation of internal counsel and the “Iniquity Exception.” The conclusion is that Malta does not distinguish between legal advice and litigation Privilege but acknowledges and applies one-unitary privilege to encompass both.