	Lex Mundi Global Attorney-Client Privilege Guide
	Jamaica
	(Latin America/Caribbean) Firm Myers, Fletcher & Gordon Contributors Gina Phillipps Black Sandra Minott-Phillips Updated 24 Mar 2020
Is the ACP recognized in your jurisdiction?	Yes
If the ACP is not recognized in your jurisdiction, are there rules of professional confidentiality or other rules that would enable a lawyer or a client to withhold attorney-client communications or work product prepared by counsel from disclosure...	N/A
Is a distinction made in applying the ACP or professional confidentiality rules in civil and criminal proceedings? May government authorities require disclosure of attorney-client communications and legal work product?	No. May government authorities require disclosure of attorney-client communications and legal work product? No. However, there is legislation that will impact the scope of the privilege. For example, the Proceeds of Crime Act. (See Question "What statutes or key court decisions articulate the crime-fraud exception in your jurisdiction?". below.)
In the corporate context, what test is applied to determine who within a corporation is considered the client for the purposes of the ACP? (e.g., in the U.S.: the Upjohn approach, control group test, etc.)	There is no established test.
Is in-house counsel expected to meet a higher burden than outside counsel in order to establish that privilege applies to in-house counsel’s communications?	No.
Civil Law Jurisdictions: May in-house counsel assert privilege or professional confidentiality?	Yes, if the particular work product falls within the parameters of information that is the subject of ACP.
Civil Law Jurisdictions: Is in-house counsel allowed to be active members of your jurisdiction’s bar?	Yes
Is the common interest doctrine recognized in your jurisdiction?	No.
How is the doctrine articulated in your jurisdiction?	N/A
Must a common interest agreement be in writing?	N/A
Is litigation funding permitted in your jurisdiction? Are there any professional rules in this respect?	Yes. Are there any professional rules in this respect? Not in respect of funding provided by persons/entities who are not attorneys-at-law. All attorneys-at-law must practice in accordance with the Canons of Professional Ethics and other applicable Rules and Regulations.
Have the courts in your jurisdiction addressed whether communications with litigation funders may be protected by the ACP or the work-product protection	No.
Is the crime-fraud exception recognized in your jurisdiction?	Yes.
What statutes or key court decisions articulate the crime-fraud exception in your jurisdiction?	The Proceeds of Crime Act and Regulations. (See the case of The Jamaican Bar Association v The Attorney General and The General Legal Council [2017] JMFC Full 02, where the Court ruled in favor of the implementation of the Proceeds of Crime Act, and its Regulations and Guidance, which impose obligations on attorneys to report to agents of the State on matters concerning their clients’ confidential information. The Court found that privilege does not protect communications to an attorney done in furtherance of a crime or fraud. This decision is subject to appeal on other grounds.)
Is there a statute or rule that protects information obtained or prepared in anticipation of litigation from disclosure in legal proceedings? (In the U.S.: What state rule is your jurisdiction’s analog to FRCP 26(b)(3)?)	Litigation privilege, which is included in legal professional privilege, is a common law principle of confidentiality that has been acknowledged as a fundamental human right, and that is codified in the Canons of Professional Ethics which the Legal Profession Act requires all attorneys-at-law to observe.
What are the elements of the protection in your jurisdiction?	Generally, ACP applies when: an actual or potential client communicates with a lawyer regarding legal advice; the lawyer is acting in a professional capacity (rather than, for example, as a friend); and the client intended the communications to be private and acted accordingly. Information protected by litigation privilege does not have to be disclosed. However, rule 28.16 of the Civil Procedure Rules state that privileged information, where the disclosing party inadvertently allowed it to be inspected by the other side, may be used by that other side with the permission of the court or the agreement of the party disclosing the document.
Does your jurisdiction recognize an accountant-client privilege?	No.
Does your jurisdiction recognize a mediation privilege?	Yes.
Does your jurisdiction recognize a settlement negotiation privilege?	N/A

Lex Mundi Global Attorney-Client Privilege Guide

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Is the ACP recognized in your jurisdiction?

Yes

If the ACP is not recognized in your jurisdiction, are there rules of professional confidentiality or other rules that would enable a lawyer or a client to withhold attorney-client communications or work product prepared by counsel from disclosure...

N/A

Is a distinction made in applying the ACP or professional confidentiality rules in civil and criminal proceedings? May government authorities require disclosure of attorney-client communications and legal work product?

No. May government authorities require disclosure of attorney-client communications and legal work product? No. However, there is legislation that will impact the scope of the privilege. For example, the Proceeds of Crime Act. (See Question "What statutes or key court decisions articulate the crime-fraud exception in your jurisdiction?". below.)

In the corporate context, what test is applied to determine who within a corporation is considered the client for the purposes of the ACP? (e.g., in the U.S.: the Upjohn approach, control group test, etc.)

There is no established test.

Is in-house counsel expected to meet a higher burden than outside counsel in order to establish that privilege applies to in-house counsel’s communications?

No.

Civil Law Jurisdictions: May in-house counsel assert privilege or professional confidentiality?

Yes, if the particular work product falls within the parameters of information that is the subject of ACP.

Civil Law Jurisdictions: Is in-house counsel allowed to be active members of your jurisdiction’s bar?

Yes

Is the common interest doctrine recognized in your jurisdiction?

No.

How is the doctrine articulated in your jurisdiction?

N/A

Must a common interest agreement be in writing?

N/A

Is litigation funding permitted in your jurisdiction? Are there any professional rules in this respect?

Yes. Are there any professional rules in this respect? Not in respect of funding provided by persons/entities who are not attorneys-at-law. All attorneys-at-law must practice in accordance with the Canons of Professional Ethics and other applicable Rules and Regulations.

Have the courts in your jurisdiction addressed whether communications with litigation funders may be protected by the ACP or the work-product protection

No.

Is the crime-fraud exception recognized in your jurisdiction?

Yes.

What statutes or key court decisions articulate the crime-fraud exception in your jurisdiction?

The Proceeds of Crime Act and Regulations.
(See the case of The Jamaican Bar Association v The Attorney General and The General Legal Council [2017] JMFC Full 02, where the Court ruled in favor of the implementation of the Proceeds of Crime Act, and its Regulations and Guidance, which impose obligations on attorneys to report to agents of the State on matters concerning their clients’ confidential information. The Court found that privilege does not protect communications to an attorney done in furtherance of a crime or fraud. This decision is subject to appeal on other grounds.)

Is there a statute or rule that protects information obtained or prepared in anticipation of litigation from disclosure in legal proceedings? (In the U.S.: What state rule is your jurisdiction’s analog to FRCP 26(b)(3)?)

Litigation privilege, which is included in legal professional privilege, is a common law principle of confidentiality that has been acknowledged as a fundamental human right, and that is codified in the Canons of Professional Ethics which the Legal Profession Act requires all attorneys-at-law to observe.

What are the elements of the protection in your jurisdiction?

Generally, ACP applies when:

an actual or potential client communicates with a lawyer regarding legal advice;
the lawyer is acting in a professional capacity (rather than, for example, as a friend); and
the client intended the communications to be private and acted accordingly.

Information protected by litigation privilege does not have to be disclosed.

However, rule 28.16 of the Civil Procedure Rules state that privileged information, where the disclosing party inadvertently allowed it to be inspected by the other side, may be used by that other side with the permission of the court or the agreement of the party disclosing the document.

Does your jurisdiction recognize an accountant-client privilege?

No.

Does your jurisdiction recognize a mediation privilege?

Yes.

Does your jurisdiction recognize a settlement negotiation privilege?

N/A

Lex Mundi Global Attorney-Client Privilege Guide

Jamaica

Lex Mundi Global Attorney-Client Privilege Guide

Jamaica

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