	Lex Mundi Global Attorney-Client Privilege Guide
	Bahrain
	(Middle East) Firm Hassan Radhi & Associates Contributors Noor Radhi Hassan Radhi Updated 09 Sep 2021
Is the ACP recognized in your jurisdiction?	The Bahraini legal system does not recognize ACP similarly to other common law jurisdictions. However, professional confidentiality obligations exist and are applicable to lawyers by virtue of statute.
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...	Lawyers owe their clients a duty of confidentiality which is stipulated upon under Article 29 of Law No.26/1980 promulgating the Legal Practice Act (“Legal Practice Act”) which sets a prohibition on lawyers on disclosing any incident or knowledge or information that they acquire during the course of their profession, even after the expiry of their appointment as attorneys. The abovementioned article further states that a lawyer may not testify in respect of any dispute in which he/she has been appointed as an attorney or asked to provide legal advice in relation thereto without obtaining the client’s prior written consent.
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?	There is no difference or distinction in applying the professional confidentiality rules in civil or criminal proceedings. Other than disclosures made pursuant to a court order, lawyers are required to submit an annual disclosure report to the follow up in the Ministry of Justice and Islamic Affairs which includes details of all legal services provided to all clients pursuant to Article 4(d) of the Ministerial Order No.14/2021 Concerning the Obligations related to the Procedures of the Prohibition of and Combating Money Laundering and Terrorism Finance and illegal money trafficking across borders for lawyers and international legal consultancies in Bahrain and the standards of freezing and unfreezing assets and the prohibition on dealing with persons listed in the terrorist list (“*Resolution No.14/2021”). Other than the annual reporting, Resolution No. 14/2021* also requires lawyers to submit ad-hoc reports in circumstances where the assigned mandate creates doubts of being a suspicious transaction. In both instances of reporting, the follow-up unit may request the disclosure of any further documents or records as it may consider necessary for its purposes, in which case lawyers are under an obligation to cooperate and disclose the requested information.
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 decisive test or an established approach to determining who within a corporation is considered the client. The confidentiality obligation of lawyers will extend to all communications received from the representatives of the corporation.
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?	In-house counsels are not subject to the Legal Practice Act which is applicable to external lawyers and advocates working in private practice, but they rather owe their employers the duties prescribed under Law No.36/2012 promulgating the Labour Law for Private Sector (“Labour Law”). In this context, Article 71(9) states that employees shall keep the secrets of the workplace, and not disclose work-related information when they are confidential by nature or by written instructions of the employer.
Civil Law Jurisdictions: May in-house counsel assert privilege or professional confidentiality?	Please refer to answer I B (2) above.
Civil Law Jurisdictions: Is in-house counsel allowed to be active members of your jurisdiction’s bar?	No. Only practicing lawyers and attorneys are allowed to be active members of Bahrain’s bar association.
Is the common interest doctrine recognized in your jurisdiction?	The common interest doctrine is not recognized under Bahraini law.
How is the doctrine articulated in your jurisdiction?	Not applicable.
Must a common interest agreement be in writing?	Not applicable.
Is litigation funding permitted in your jurisdiction? Are there any professional rules in this respect?	Litigation funding is not addressed under the laws of Bahrain. There are no legal provisions that expressly allow or prohibit litigation funding, therefore litigation funding will be subject to the terms and conditions agreed upon between the parties.
Have the courts in your jurisdiction addressed whether communications with litigation funders may be protected by the ACP or the work-product protection	Not applicable. As mentioned above, litigation funding is not addressed under the laws of Bahrain and we are not aware of any judicial precedents that address this issue. In such cases, the confidentiality provisions agreed upon between the litigation funders and the other party will be applicable.
Is the crime-fraud exception recognized in your jurisdiction?	Lawyers and advocates are only under obligation to take positive action to report any suspicion of criminal fraud by their client if it concerns money laundering, terrorism financing or dealing with sanctioned persons pursuant to Article 6 of Resolution No. 14/2021. Otherwise, lawyers are bound by their duty of confidentiality as outlined under answer I A (2) above.
What statutes or key court decisions articulate the crime-fraud exception in your jurisdiction?	Please see above.
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)?)	There is no special treatment for information obtained or prepared in anticipation of litigation. The same confidentiality rules addressed in our answer I A (2) above will be applicable.
What are the elements of the protection in your jurisdiction?	Please re-visit our answer I A (2) above.
Does your jurisdiction recognize an accountant-client privilege?	Pursuant to Article 47 of Law No.15/2021 with respect to External Auditors, external auditors are under a duty to maintain the confidentiality of the information of their clients. Regardless, Article 4 Law No.173/2017 concerning the procedures on the prohibition of and combatting money laundering and terrorism financing for the professionals registered in the commercial register and the auditors register in the Kingdom of Bahrain, places auditors under obligation to report to the follow-up unit in the Ministry of Justice and Islamic Affairs any irregularities or suspicious transactions.
Does your jurisdiction recognize a mediation privilege?	All information exchanged during the course of mediation are considered confidential pursuant to Article 5 of Law No.22/2019 with respect to Mediation for Dispute Resolution, and the parties thereto are prohibited from disclosing such information unless they agree otherwise – or if the disclosure is made pursuant to a court order or for the purposes of prevention of occurrence of crime.
Does your jurisdiction recognize a settlement negotiation privilege?	The laws of Bahrain do not recognize such privilege.

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Is the ACP recognized in your jurisdiction?

The Bahraini legal system does not recognize ACP similarly to other common law jurisdictions. However, professional confidentiality obligations exist and are applicable to lawyers by virtue of statute.

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...

Lawyers owe their clients a duty of confidentiality which is stipulated upon under Article 29 of Law No.26/1980 promulgating the Legal Practice Act (“Legal Practice Act”) which sets a prohibition on lawyers on disclosing any incident or knowledge or information that they acquire during the course of their profession, even after the expiry of their appointment as attorneys.

The abovementioned article further states that a lawyer may not testify in respect of any dispute in which he/she has been appointed as an attorney or asked to provide legal advice in relation thereto without obtaining the client’s prior written consent.

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?

There is no difference or distinction in applying the professional confidentiality rules in civil or criminal proceedings.

Other than disclosures made pursuant to a court order, lawyers are required to submit an annual disclosure report to the follow up in the Ministry of Justice and Islamic Affairs which includes details of all legal services provided to all clients pursuant to Article 4(d) of the Ministerial Order No.14/2021 Concerning the Obligations related to the Procedures of the Prohibition of and Combating Money Laundering and Terrorism Finance and illegal money trafficking across borders for lawyers and international legal consultancies in Bahrain and the standards of freezing and unfreezing assets and the prohibition on dealing with persons listed in the terrorist list (“Resolution No.14/2021”). Other than the annual reporting, Resolution No. 14/2021 also requires lawyers to submit ad-hoc reports in circumstances where the assigned mandate creates doubts of being a suspicious transaction.

In both instances of reporting, the follow-up unit may request the disclosure of any further documents or records as it may consider necessary for its purposes, in which case lawyers are under an obligation to cooperate and disclose the requested information.

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 decisive test or an established approach to determining who within a corporation is considered the client. The confidentiality obligation of lawyers will extend to all communications received from the representatives of the corporation.

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?

In-house counsels are not subject to the Legal Practice Act which is applicable to external lawyers and advocates working in private practice, but they rather owe their employers the duties prescribed under Law No.36/2012 promulgating the Labour Law for Private Sector (“Labour Law”).

In this context, Article 71(9) states that employees shall keep the secrets of the workplace, and not disclose work-related information when they are confidential by nature or by written instructions of the employer.

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

Please refer to answer I B (2) above.

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

No. Only practicing lawyers and attorneys are allowed to be active members of Bahrain’s bar association.

Is the common interest doctrine recognized in your jurisdiction?

The common interest doctrine is not recognized under Bahraini law.

How is the doctrine articulated in your jurisdiction?

Not applicable.

Must a common interest agreement be in writing?

Not applicable.

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

Litigation funding is not addressed under the laws of Bahrain. There are no legal provisions that expressly allow or prohibit litigation funding, therefore litigation funding will be subject to the terms and conditions agreed upon between the parties.

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

Not applicable. As mentioned above, litigation funding is not addressed under the laws of Bahrain and we are not aware of any judicial precedents that address this issue. In such cases, the confidentiality provisions agreed upon between the litigation funders and the other party will be applicable.

Is the crime-fraud exception recognized in your jurisdiction?

Lawyers and advocates are only under obligation to take positive action to report any suspicion of criminal fraud by their client if it concerns money laundering, terrorism financing or dealing with sanctioned persons pursuant to Article 6 of Resolution No. 14/2021.

Otherwise, lawyers are bound by their duty of confidentiality as outlined under answer I A (2) above.

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

Please see above.

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)?)

There is no special treatment for information obtained or prepared in anticipation of litigation. The same confidentiality rules addressed in our answer I A (2) above will be applicable.

What are the elements of the protection in your jurisdiction?

Please re-visit our answer I A (2) above.

Does your jurisdiction recognize an accountant-client privilege?

Pursuant to Article 47 of Law No.15/2021 with respect to External Auditors, external auditors are under a duty to maintain the confidentiality of the information of their clients.

Regardless, Article 4 Law No.173/2017 concerning the procedures on the prohibition of and combatting money laundering and terrorism financing for the professionals registered in the commercial register and the auditors register in the Kingdom of Bahrain, places auditors under obligation to report to the follow-up unit in the Ministry of Justice and Islamic Affairs any irregularities or suspicious transactions.

Does your jurisdiction recognize a mediation privilege?

All information exchanged during the course of mediation are considered confidential pursuant to Article 5 of Law No.22/2019 with respect to Mediation for Dispute Resolution, and the parties thereto are prohibited from disclosing such information unless they agree otherwise – or if the disclosure is made pursuant to a court order or for the purposes of prevention of occurrence of crime.

Does your jurisdiction recognize a settlement negotiation privilege?

The laws of Bahrain do not recognize such privilege.

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