Are my emails with my UK solicitor privileged in Israeli court proceedings?

An English client who has spent two years taking advice from a solicitor in London about an Israeli estate, an Israeli flat or an Israeli company will have a file full of frank emails. Then an Israeli disclosure affidavit lands, and the question of whether that file is protected stops being theoretical. English legal advice privilege and Israeli privilege overlap heavily, but they are not the same right and they do not arise from the same source.

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Detailed Answer

The Israeli rule sits in Section 48 of the Evidence Ordinance [New Version] 5731-1971, which protects things and documents exchanged between a client and a lawyer where they relate to the professional service the lawyer provided to the client. Section 90 of the Bar Association Law 5721-1961 imposes the mirror-image duty on the lawyer, and it is a duty the lawyer cannot release without the client's consent, because the privilege belongs to the client and not to the firm. Israeli courts treat the protection as strong, and unlike some jurisdictions they do not weigh it against the value of the evidence in the ordinary case. The exceptions are narrow and familiar: communications made in furtherance of a future or continuing crime or fraud are not protected, and material shared with or in the presence of a third party generally loses the protection, which catches the very common arrangement where a family member, an accountant or a business partner is copied on the chain. The section is expressed in terms of a lawyer and the professional service, and Israeli practice has not treated it as a rule that stops at the border in the way an inflexible reading might suggest, but a foreign qualification is a point an opponent will take, and the outcome will depend on the nature of the relationship rather than on the letterhead.

For a UK-resident party there are three practical consequences. First, structure the retainer so the argument does not have to be won. Where an Israeli advocate is instructed and the English solicitor corresponds with and through that advocate on the Israeli matter, the material is far more comfortably within Section 48 than a direct client-to-London-solicitor chain about an Israeli asset. Second, watch who is on the copy line. Israeli privilege is more sensitive to third-party presence than English litigation privilege is in some settings, and the habit of copying a spouse, an adult child or a UK accountant into advice about an Israeli inheritance is the single most frequent way non-residents destroy their own protection. Third, never resolve the question by leaving documents off the list. Under the Civil Procedure Regulations 5779-2018 disclosure is by sworn affidavit and a motion under Regulation 59 is the mechanism for a privilege dispute, in which the court may inspect the document itself before ruling. Listing a document and claiming privilege expressly is a legal position you can lose without consequence; omitting it and being found out is a false affidavit, and the credibility damage outlasts the document.

In Practice: Israeli legal professional privilege arises under Section 48 of the Evidence Ordinance [New Version] 5731-1971, supported by the advocate's confidentiality duty in Section 90 of the Bar Association Law 5721-1961, which the Israel Bar Association enforces through its district disciplinary tribunals and which the lawyer cannot waive without the client's consent. Privilege is asserted on the Regulation 57 disclosure affidavit and contested by motion under Regulation 59 of the Civil Procedure Regulations 5779-2018, with such motions commonly heard within 4 to 8 weeks of the disclosure exchange. Routing UK advice through an Israeli advocate costs materially less than the fight: an uncontested Israeli application of this kind typically runs NIS 8,000 to NIS 20,000 in fees, against an adverse ruling that puts the whole London file into the other side's hands.

When to Consult a Lawyer

• Third parties are on the correspondence. Before any Israeli disclosure affidavit is sworn, the chains involving a relative, an accountant or a business partner need to be separated from the pure lawyer-client ones, because they are the documents most likely to be ordered disclosed.
• The advice concerns a transaction now being attacked as improper. Pre-death transfers, share dealings and asset moves attract an argument that the crime-or-fraud exception applies, and that argument is answered with evidence about the advice's purpose, not with an assertion of privilege.
• You are choosing counsel for an Israeli dispute now. The cheapest privilege protection available to a UK resident is structural, and it is set up at the retainer stage. See our answer on whether a UK solicitor can represent you in Israel.

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Speak With an Israeli Attorney

Privilege over a London file is much easier to build than to defend, and the decisions that determine it are made when the retainer is set up and when the copy line is chosen, long before an Israeli disclosure affidavit is drafted.

Contact us for a confidential initial consultation.