In-House Brief: Professional Privilege by Another Name
Confidentiality, production and the in-house lawyer
Executive Summary
When a claim or dispute is in prospect, much of the most sensitive work is done in-house: the review of the claim, the instruction of delay and quantum experts, the interviews with site staff and the advice to the board. The question for any business is whether that work can be kept from the other side.
UAE law does not recognise legal professional privilege. It protects lawyer-client material through duties of confidentiality. This note explains where in-house counsel - whether employed or engaged on a fractional basis - stand in comparison with external counsel, and which documents attract confidentiality when they are produced by, or routed through, in-house counsel. Its conclusion is that in-house counsel deliver the same protection as external counsel, by a different route - and that without either, a business preparing a claim is exposed.
Key Action Points
Route claim analysis, expert instructions and witness interviews through in-house counsel.
Have in-house counsel hold the working file, and pass copies to the business for information only, marked confidential and restricted to named individuals.
Put a written confidentiality agreement or retainer in place with in-house counsel, whether employed or fractional.
Keep legal analysis separate from commercial discussion.
Never disclose confidential claim material outside the named group, including to counterparties, funders or lenders, without advice.
1. Confidentiality, Not Privilege
The onshore UAE legal system does not recognise legal professional privilege as understood in common law systems. The protection that exists is a professional duty of confidentiality imposed on the lawyer.1 It is the lawyer's duty not to disclose, rather than the client's right to withhold. There is no separate protection for documents prepared in contemplation of proceedings: the duty covers confidential lawyer-client communications, with no distinction between types of document.2
2. External Counsel and In-House Counsel Compared
2.1 External Counsel
External lawyers practising in the UAE, including non-nationals, are registered with the Ministry of Justice as legal consultants; registration on that register does not depend on nationality. Legal consultants are prohibited from disclosing confidential information entrusted to them, or which comes to their knowledge by virtue of their profession in advising a client.3 The Code of Ethics applies to them and subjects information obtained from a client or a third party to strict confidentiality.4 The duty is professional and statutory, and it applies to non-national external counsel in the same way as to UAE nationals, provided they are registered.
2.2 In-House Counsel
The generally accepted interpretation of UAE law is that an in-house lawyer is bound to keep the employer's information confidential, whereas external counsel is bound by the Advocacy Law and the Code of Ethics to keep confidential all information obtained in acting for the client.5 The in-house lawyer's duty is the ordinary duty of every employee to keep the employer's business secrets.6 A confidentiality agreement between the business and its in-house counsel will provide an additional layer of protection.7
In-house counsel who are professionally regulated in their home jurisdiction may also remain bound by that regulation. A solicitor of England and Wales who provides services from England and Wales remains subject to the SRA Code of Conduct, including the requirement to keep the affairs of clients confidential, whatever their role and whether they act in-house or externally.8 A solicitor who is established in the UAE is instead subject to the SRA Overseas Rules, which contain no equivalent express confidentiality rule and give way to local law and regulation.9
2.3 The Difference
The difference between external and in-house counsel lies in the source of the duty, not in its content. External counsel owe a statutory professional duty. In-house counsel owe a duty arising from their employment or retainer, reinforced by any confidentiality agreement and by their own professional regulation. In each case the lawyer is bound not to disclose the client's confidential information.
3. Which Documents Attract Confidentiality
3.1 Documents Produced by In-House Counsel
Advice, analysis and working papers prepared by in-house counsel in their legal capacity are confidential. That confidentiality arises from the duty owed under their employment or retainer, from any confidentiality agreement and, where they are professionally regulated, from their professional duty.
3.2 Third-Party Material Routed Through In-House Counsel
For external counsel, the duty expressly extends to information obtained from third parties and to anything that comes to the lawyer's knowledge in advising the client.3 For in-house counsel, the same result is achieved by ensuring that the confidentiality agreement or retainer extends expressly to material obtained from third parties, and it follows from any professional duty to keep the client's affairs confidential.8 Expert reports, witness accounts and other third-party material obtained by in-house counsel in advising on a claim or dispute are therefore confidential. Routing that material through in-house counsel, rather than through the commercial team, is what brings it within the duty.
3.3 Copies Passed to the Business
Passing a copy to the business for information does not, of itself, end its confidentiality. The client is the owner of the information, and it is when the client discloses its copies that they cease to be confidential.10 A copy provided to named individuals, for information, and held on the same confidential basis remains confidential. A copy circulated beyond that group, forwarded to a counterparty, or deployed in the proceedings may not do.
3.4 Without In-House Counsel
Material prepared internally without the involvement of a lawyer - a delay analysis commissioned directly by the commercial team, for example, or notes of site interviews taken by a project manager - has only ordinary business confidentiality: the general duty of employees to keep the company's secrets.6 It is not lawyer-client material. When production is sought, it supports at most an objection on grounds of commercial confidentiality, and the business is exposed. Routing the same work through in-house counsel gives it the lawyer-client confidentiality that external counsel would give it, by a different route.
Key Point: Documents produced by in-house counsel, and third-party material routed through them, attract confidentiality. Providing copies to the business for information does not end that confidentiality. Disclosure by the business does.
4. Confidentiality Is Not Immunity from Production
This is the critical distinction. The duty of confidentiality restrains the lawyer. It does not give the business a right to refuse to produce documents that it holds.
4.1 In the Dubai Courts
The Evidence Law allows a court to order a party to produce documents in its possession and, in commercial disputes, documents or clear categories of documents relating to the underlying transaction. The court may draw an adverse inference from a refusal.11 Those orders are directed at the party, not at its lawyer. A copy of an in-house analysis held by the business is therefore within reach of a production order, however confidential it is. Commentators consider, for example, that notes taken by in-house counsel in employee interviews are unlikely to be protected in the UAE mainland.12 The same would be true of an external lawyer's interview notes once copies are held by the business.
4.2 In Arbitration Seated in Dubai
The UAE Arbitration Law is silent on privilege, and the DIAC Rules leave the rules of evidence to the tribunal.13 Where the IBA Rules are adopted, the tribunal may exclude documents on grounds of legal impediment or privilege under the rules it determines to be applicable, or on grounds of compelling commercial or technical confidentiality, taking into account the expectations of the parties and the need for fairness and equality between them.14 Confidentiality is a basis for that objection.
4.3 Is External Counsel Different?
For documents held by the business, no. The external lawyer's duty binds the lawyer, not the client. Once the business holds a copy, it can be ordered to produce it in the same way as a copy that came through in-house counsel. The comparison is as follows:
Route | Confidentiality | Position on production |
Through external counsel | Lawyer-client confidentiality, arising from a statutory professional duty | Stronger basis to resist production; copies held by the business can still be ordered to be produced |
Through in-house counsel | Lawyer-client confidentiality, arising from employment or retainer, any confidentiality agreement and any professional regulation | The same |
Through neither | Ordinary business confidentiality only | Exposed: at most an objection on grounds of commercial confidentiality |
The real divide is therefore not between in-house and external counsel, but between material that passes through a lawyer and material that does not. A tribunal may give some additional weight to the statutory nature of external counsel's duty; a written confidentiality agreement or retainer closes most of that gap. Whether an onshore court would treat lawyer-client confidentiality as a reason to refuse production has not been tested, so the protection is best described as a stronger basis to resist production rather than immunity from it.
There is one practical difference, concerning the lawyer's own working file. An external lawyer holds that file outside the business, under a professional duty not to disclose it, and a production order is directed at documents in the party's possession. The working file of an employed in-house lawyer is, in practice, held within the business. The difference can be narrowed by keeping the in-house legal file separate and restricted, and it largely disappears where in-house counsel hold their working papers on their own systems, as fractional counsel typically do.
UAE Risk: Claim reviews, delay or quantum analyses and notes of interviews with site staff prepared by the business without the involvement of a lawyer have only ordinary business confidentiality, and are exposed when production is sought. Copies held by the business remain within reach of a production order even where a lawyer was involved, but lawyer-client confidentiality gives the business a materially stronger basis to resist.12,11
4.4 Settlement Communications
Communications made in a genuine attempt to settle stand on a separate footing. In 2024 the Dubai Court of Cassation recognised the principle of without prejudice protection for settlement negotiations. Onshore courts are not bound by precedent, but the decision can be relied on persuasively.15
5. Practical Steps
5.1 Put the Duty in Writing
A confidentiality agreement with employed in-house counsel, or the retainer of fractional counsel, should identify their legal function, distinguish it from any commercial role, and apply expressly to work done in contemplation of a claim, dispute or arbitration, including material obtained from third parties.
5.2 Route Everything Through In-House Counsel
Experts should be instructed by in-house counsel, witness interviews conducted by them, and draft reports returned to them, not to the commercial team.
5.3 Hold the File in the Legal Function
In-house counsel should hold the working file, separately from the business's general systems. The business should receive only what it needs, for information, marked confidential and restricted to named individuals. The fewer copies in circulation, the fewer documents within reach of a production order, and the stronger any confidentiality objection.
5.4 Separate Legal from Commercial Work
Legal analysis should be prepared as a separate document, not embedded in board papers, management reports or commercial correspondence.
Conclusion
In-house counsel broadly deliver the same protection as external counsel, by a different route. The protection available in Dubai is confidentiality, not privilege. External counsel owe it under statute; in-house counsel owe it under their employment or retainer, reinforced by a written confidentiality agreement and, where they are professionally regulated, by their continuing professional duty. Documents produced by in-house counsel, and third-party material routed through them, attract lawyer-client confidentiality, and that confidentiality is not lost merely because copies are passed to the business for information.
Without either in-house or external counsel, a business preparing a disputed claim is exposed. Work done internally without a lawyer has only ordinary business confidentiality, and little to set against a request for production. With a lawyer involved - in-house or external - the business has a materially stronger basis to resist, although in neither case can confidentiality prevent a court or tribunal from ordering the business to produce documents it holds. The protection of claim documents therefore depends on routing the work through a lawyer, on who holds the file, and on how far copies travel.
A fractional in-house appointment from C&IDS provides the senior construction disputes expertise to put that discipline in place before a claim is prepared.
Authorities
Federal Decree-Law No. 34 of 2022 regulating the Legal Profession and Legal Consultation Profession, Art 45
Lex Mundi, Attorney-Client Privilege Guide: United Arab Emirates
Cabinet Resolution No. 8 of 2025 (Executive Regulations of Federal Decree-Law No. 34 of 2022), Arts 37, 39 and 48
Cabinet Resolution No. 9 of 2025 approving the Code of Ethics for the Legal Profession and Legal Consultation Profession, Code, Arts 1 (definitions), 3 (scope of application) and 8 (confidentiality and non-disclosure)
Bird & Bird LLP, Legal Privilege, Confidentiality and Professional Secrecy Q&A: United Arab Emirates, Disputes+ Know-How (2020)
Federal Law No. 5 of 1985 (Civil Transactions Law), Art 905(5); Lex Mundi, op cit
See DLA Piper, Legal Professional Privilege Global Guide: United Arab Emirates
SRA Code of Conduct for Solicitors, RELs, RFLs and RSLs, Introduction and para 6.3
SRA Overseas and Cross-border Practice Rules, Introduction and rules 1.1-1.3
Baker McKenzie, Global Privilege and Professional Secrecy Guide (5th edn, 2025), United Arab Emirates, “Scope of privilege”
Federal Decree-Law No. 35 of 2022 (Law of Evidence in Civil and Commercial Transactions), Arts 33-35
Baker McKenzie (2025), United Arab Emirates, “Investigations”
Federal Law No. 6 of 2018 on Arbitration; DIAC Arbitration Rules 2022, Art 25
IBA Rules on the Taking of Evidence in International Arbitration (2020), Arts 9.2(b), 9.2(e) and 9.4
Dubai Court of Cassation, Case No. 486/2024 (22 October 2024); Baker McKenzie (2025), United Arab Emirates, “Recent issues”
This article is published for general information purposes only. It does not constitute legal advice. C&IDS is a UK limited company (No. 11789861).
