Concept of legal professional privilege

Australia

Australia

Legal professional privilege is derived from the common law and from legislation, such as the Evidence Act 1995 (Cth), at both a state and federal level. It is important to remember that legal professional privilege (which is often referred to as client privilege) is a fundamental right that vests in the client.

Confidential communications between a lawyer and their client, one or more lawyers acting for the client, or lawyers acting for the client and a third person (such as an expert witness) for the dominant purpose of providing legal advice or professional legal services in relation to a current or pending legal proceeding are protected by legal professional privilege.

Legal professional privilege also extends to confidential documents prepared for the purpose of giving or obtaining legal advice and for the purpose of a legal proceeding. Legal professional privilege may be abrogated by some common law exemptions and by the express and / or necessary implication of legislative provisions.

For example, if a client seeks legal advice in an attempt to further a crime or fraud, this advice and related communications will not be subject to legal professional privilege. Further, a claim of legal professional privilege is unlikely to be able to be maintained if it is being used to frustrate a process of law. Legal professional privilege applies in the context of criminal investigations and in the context of regulatory investigations by authorities such as the competition authority.

Legal professional privilege in the context of civil litigation

In the context of civil litigation, where the court may order documents to be produced during processes such as discovery, such orders will not require documents that are subject to a claim of legal professional privilege to be produced. However, the documents will need to be identified in a list of documents that is provided to the party seeking discovery.

Last modified 15 Mar 2019

Austria

Austria

Austrian law does not provide legal professional privilege protection to the extent to which it is established in many other jurisdictions.

Legal professional privilege in the context of civil litigation

In the context of civil litigation, where the court may order documents to be produced during processes, such as discovery, each party is obliged to produce and present the documents it refers to as evidence for its arguments. The Austrian Code of Civil Procedure further sets out a disclosure obligation on the part of the opposing party if:

  • the opposing party itself referred to a document for evidentiary purposes;
  • the opposing party is subject to a disclosure obligation under Austrian civil law; or
  • the document is a joint document (meaning that the document was either drawn up in the interest of the opposing parties or refers to legal relationships between the parties).

Other documents are subject to conditional disclosure only and the opposing party may refuse to provide disclosure for certain important reasons (eg if the disclosure would expose the opposing party or a third party to the risk of criminal prosecution). It is difficult for a party to invoke legal professional privilege to avoid having to disclose a document. The obligation of an opposing party to disclose documents is not enforceable, but the court may give weight to a refusal to do so.

With regard to third parties (including lawyers holding documents on their own behalf), there may be an obligation to disclose documents:

  • under Austrian civil law; or
  • which are joint documents for the third party (eg a lawyer) and the party producing the evidence.

However, this rule applies only if the third party acts on its own behalf. If the lawyer kept the document on behalf of and in the name of their client, the client is subject to a disclosure obligation. The disclosure obligation of third parties is a non-conditional obligation and principally cannot be avoided by invoking legal professional privilege. It is enforceable by fines and prison sentences.

Under the Austrian Code of Civil Procedure, a lawyer has the right to refuse to testify in court regarding facts related to advice given to a client. Based on the obligation to maintain confidentiality under the Austrian Attorney Regulation, a lawyer called as witness in a civil case against their client must refuse to answer questions regarding information and matters subject to their obligation of confidentiality if non-disclosure is in the interest of the client and the client has not released the lawyer from the obligation of confidentiality. The Attorney Regulation requires lawyers to maintain confidentiality in the interests of clients with respect to matters entrusted to them and information they have obtained in their capacity as lawyer, and in so far as non-disclosure is in the interest of the client.

Legal professional privilege in the context of criminal investigations

Legal professional privilege is recognised in the context of criminal investigations. The Austrian Code of Criminal Procedure stipulates a lawyer's right to refuse to give evidence regarding matters they are entrusted with in their capacity as defence lawyer. The right to refuse testimony may not be circumvented in any way, particularly by interviewing the lawyer's employees or by seizing documents kept at their office.

Legal professional privilege in the context of investigations by the antitrust/competition authority

A more limited scope of legal professional privilege is recognised in the context of investigations by the competition authority.. The applicable administrative procedural law recognises a lawyer's right to refuse to give evidence regarding matters they are entrusted with in their capacity as a lawyer. More extensive legal professional privilege protection exists in the context of European Union competition law but not within the statutory provisions of Austrian competition law. Therefore, where the Austrian Competition Authority acts on its own behalf, there is no guarantee that any 'privileged' communications are protected. Generally speaking, the Austrian Competition Authority does not recognise legal professional privilege in the context of an investigation that is based on Art 101 (1) TFEU. This is especially true, if any suspicion (e.g. drafting of a cartel agreement) is directed against a lawyer or a chartered accountant.

Last modified 15 Mar 2019

Bahrain

Bahrain

There is no federal system in Bahrain. Instead, the legal system draws upon Shari’a law ("Islamic Religious Law"), tribal law, Egyptian codes and English common law. The Shari'a courts deal primarily with the personal legal matters of Muslims (e.g. marriage and divorce), and the civil courts (derived from the Egyptian system) deal with all other matters. Due to the nature of the civil law legal system, there is no system of precedent in the courts and judgments are often unpublished. Proceedings are conducted in Arabic, mainly on the basis of written submissions with little reliance on live evidence (e.g. from witnesses).

In many civil law jurisdictions in the region, including Bahrain, the concepts of legal professional privilege and "without prejudice" communications do not exist per se. The parties therefore have the right to use any document which may support their position. Lawyers in Bahrain, however, will be bound by duties of confidentiality; these duties in many cases incorporate concepts similar to legal professional privilege.

Article 67 of the Bahraini Law of Evidence in Civil and Commercial Matters provides that "lawyers who acquire knowledge of certain facts or information through the carrying on of their practice may not disclose these unless the facts or information were told to them for the sole purpose of committing a felony or misdemeanor".

Last modified 25 Jul 2019

Belgium

Belgium

The obligation on lawyers to maintain professional secrecy is set out in Article 458 of the Criminal Code and indirectly covered by instruments of international law such as Article 6 and 8 of the European Convention on Human Rights ("ECHR"), the European Court of Human Rights ("ECtHR") and the International Covenant Civil and Political Rights ("ICCPR"). Under Belgian law, lawyers are required to keep secret any correspondence exchanged between them (acting in their capacity as lawyers) and their client, as well as advice and any other information given to them by the client for the management of the client’s file. A lawyer's professional secrecy therefore covers not only the legal proceedings itself (before, during, after), but also legal advice provided to the client (Decision of the Belgian Constitutional Court of 23 January 2008, n° 10/2008). In particular, it covers written (and electronic) correspondence, telephone and oral communications between a lawyer and its client, the consultation given, personal notes passed on to the lawyer by its client and notes of the lawyer (Judgment of the Criminal Court of Brussels of 20 February 1998, JT 1998, 361).

This obligation of professional secrecy is also incorporated in the Belgian Rules of Professional Conduct, which specifies that lawyers must observe various duties, including the duty to maintain professional secrecy and confidentiality with regard to their matters. According to the Belgian Court of Cassation, evidence resulting from a breach of professional secrecy cannot be used to obtain a civil judgment or criminal conviction (Judgment of the Court of Cassation of 14 February 2001, n° P.00.1350.F).

Belgian jurisprudence has applied the obligation of professional secrecy set out above in combination with Articles 6 and 8 of the European Convention on Human Rights to establish that documents protected by professional secrecy are protected regardless of where they are held. The documents are protected when in the possession of the lawyer but also when the documents are in the possession of the client. Legal professional privilege therefore exists in Belgium.

Belgium does not have an equivalent to the U.S. procedure of mandatory disclosure (Article 877 of the Belgian Judicial Code regulates the submission of evidence, however, it does not allow for "fishing expeditions").

It should be noted that foreign qualified lawyers practising in Belgium are also subject to Belgian professional secrecy rules (Article 9 and 21 of the International Private law Code and Regulation (EC) No 593/2008 of 17 June 2008 (Rome I)).

Legal professional privilege in the context of civil litigation

In the context of civil or commercial litigation, there is no formal process of disclosure as is typically found in common law jurisdictions. The parties do however have a duty of good faith to cooperate as regards the production of documents. The judge can order the production of a document that is relevant and contains key information for the resolution of the dispute, on the basis of Article 877 of the Belgian Judicial Code. Document production may nevertheless be refused if there is a legitimate reason (Article 882 of the Belgian Judicial Code), and such legitimate reason can include the documents being protected by legal professional privilege.

Legal professional privilege in the context of criminal investigations

Legal professional privilege also applies in the context of criminal investigations and regulatory and other investigations. Notwithstanding the application of Article 460ter of the Belgian Criminal Code, a lawyer is  allowed - if their client approves and if it would be in their best interests - to disclose information relating to a criminal investigation.

Professional secrecy rules cease to apply when a lawyer is subject to a criminal investigation (i.e. if a lawyer is suspected of an offence or of assisting in an offence).  The obligation of confidentiality is superseded by a right to remain silent.

Legal professional privilege in the context of investigations by the antitrust / competition authority

In the context of investigations launched by the Belgian Competition Authority ("BCA"), the BCA issued Guidelines for dawn raids (Lignes directrices de l’Autorité belge de la Concurrence dans le cadre des procédures de perquisition / Richtsnoeren van de Belgische Mededingingsautoriteit betreffende de huiszoekingsprocedure), of which Sections 5.3 and Section 6 provide guidance on how the authority deals with documents that are potentially protected by legal professional privilege and how the authority may challenge a claim of privilege.

Separate from legal professional privilege, correspondence between lawyers within Belgium are confidential, in accordance with Article 6.1 of the Belgian Rules of Professional Conduct. Such correspondence may therefore not be produced or disclosed in court or out-of-court, without the consent of the President of the Bar (le Bâtonnier / de Stafhouder). Some exceptions to the confidential nature of the correspondence between lawyers are laid down in Article 6.2 of the Belgian Rules of Professional Conduct, e.g., official letters exchanged between lawyers.

Last modified 15 Mar 2019

Bosnia and Herzegovina

Bosnia and Herzegovina

Legal professional privilege in Bosnia and Herzegovina is regulated by the Law on Advocacy in the Federation of Bosnia and Herzegovina (F BiH), the Law on Advocacy of Republic Srpska ('Advocacy Act of F BiH or RS, jointly the Advocacy Acts') and the Law on Criminal Proceedings of F BiH and the Law on Criminal Proceedings of Republic Srpska ('Criminal Proceedings Act in F BiH or RS, jointly the Criminal Proceedings Acts'). Legal professional privilege is regulated by way of a duty of confidentiality, special provisions related to searches in criminal procedures, exemptions from testimony and secrecy of mail.

When related to civil litigation, legal professional privilege is not expressly regulated in the Law on Litigation Proceedings of either F BiH or Republic Srpska and therefore, the provisions of the Advocacy Acts apply. Pursuant to the Advocacy Acts, a lawyer is obliged to keep as a secret everything that the lawyer’s client confides to him, unless the lawyer is released of this obligation pursuant to an explicit or implicit consent of the client which includes, among others, situations where:

  • the client has commenced disciplinary proceedings against the lawyer
  • it is necessary for the defence of the lawyer in criminal proceedings brought against the lawyer
  • a grave criminal offence is to be committed by the client and the lawyer is aware of this, and
  • the lawyer commences litigation proceedings against the client for payment of debts owed to the lawyer by the client.

This requirement extends to the employees and former employees of the lawyer’s office or firm.

When related to criminal investigations, the Advocacy Acts state that a search of a lawyer’s office can be performed only on the basis of an order of a court in accordance with the Criminal Proceedings Acts. The search may only be performed on documents and objects expressly mentioned in the search order. While performing the search, the confidentiality of documents and objects cannot be breached to the detriment of the client. Evidence acquired by breaches of, among others, the aforementioned rules cannot be used in proceedings against the lawyer or his client. Pursuant to the Criminal Proceedings Acts, a lawyer cannot be punished for refusing to hand over to the authorities documents or objects requested by an order of a court. The lawyer cannot be called to testify against his client, as this would otherwise breach his duty of professional secrecy.

Last modified 31 Aug 2016

Brazil

Brazil

The attorney-client relationship is regulated by Federal Law 8,906/94, which governs the legal profession in Brazil and the functioning of the Brazilian Bar Association, and by the Code of Ethics and Discipline enacted by the Brazilian Bar Association. Confidentiality is deemed to be a principle 'inherent to the legal profession' and attorneys are obliged to preserve the confidentiality of any information disclosed to them by clients, including information disclosed in the context of civil litigation, criminal investigations and investigations by any competition or other authorities.

The attorney-client privilege in Brazil applies to a communication that is made:

  • to an attorney duly enrolled with the Brazilian Bar Association
  • by a person who is, was or is sought to become a client of the relevant attorney, and
  • in the context of an attorney-client relationship and for the purpose of securing legal advice.

Attorneys will be subject to disciplinary sanctions, criminal prosecution and claims for damages if they breach 'without just cause' their duty of confidentiality.

Last modified 15 Mar 2019

Bulgaria

Bulgaria

Lawyers admitted to the Bar are subject to a duty of professional secrecy (also known as the lawyer-client privilege or legal professional privilege). The statutory basis for the lawyer-client privilege is provided by the Constitution of the Republic of Bulgaria, and by the Bar Act (promulgated in State Gazette, No 55 of 25 June 2004 as amended).

The Constitution of the Republic of Bulgaria in Article 30(5) provides for the right of each person to meet in private with a lawyer defending his rights. It stipulates that the confidentiality of their communications is inviolable. That constitutional provision represents a statutory guarantee for observance by lawyers of the obligation of professional secrecy. In implementing that constitutional provision, Article 33 of the Bar Act provides that lawyers’ correspondence with clients, papers, files, electronic documents, computers and other media are inviolable and are not subject to review, copy, searches and seizures. Pursuant to Article 45(1) of the Bar Act, 'the lawyer is obliged to maintain the secrecy of his client without a time limit' (ie forever). Furthermore, Article 45(2) of the Bar Act states that lawyers shall not be entitled, as witnesses, to unveil information that has been disclosed to them in their capacity as lawyers by clients or by another lawyer and which relate to the client. Certain violations of this duty of professional secrecy committed by lawyers are criminalised by the Bulgarian Criminal Code.

Legal professional privilege in the context of civil litigation and criminal investigations

Under the Civil Procedure Code, in civil proceedings the lawyers of the parties to a court case have a right to refuse to testify. They can thereby comply with their obligations to keep secret all information received from their clients.

As far as criminal investigations and criminal court trials are concerned, a similar rule of professional secrecy exists in the Criminal Procedure Code. Defence counsel and counsel of other participants in criminal proceedings such as the private prosecutor, civil complainant or respondent may not be interrogated as witnesses in that criminal investigation or another investigation in relation to their activities as lawyers.

Although the civil procedure and the criminal procedure rules mentioned above appear to have a narrower scope as compared with the scope of Article 45(2) of the Bar Act, the latter provision applies in all cases where lawyers are summoned to testify in any civil, criminal or administrative proceedings. This is regardless of whether the lawyer represents a party to the specific proceedings or other clients have confided the information to the lawyer.

Legal professional privilege in the context of investigations by the antitrust/competition authority

Article 45(2) of the Bar Act applies in full to investigations by the competition authority, and lawyers of parties to such proceedings enjoy the same level of protection of legal professional privilege in that type of proceedings as they enjoy in civil litigation and criminal investigations and trials.

Last modified 7 Jun 2016

Canada

Canada

Solicitor-client privilege is a principle of fundamental justice, and a civil right of supreme importance that forms a cornerstone of the Canadian judicial system. Solicitor-client privilege protects communications between a person and their solicitor that are made for the purpose of obtaining legal advice. Privilege is firmly rooted in the common law, professional codes of conduct, and the constitution.

Privilege and confidentiality

Privilege is a rule of evidence excluding the admission of otherwise relevant evidence and a basis for resisting production of documents or information that may otherwise be compelled by law. Privilege is similar to, but different in important respects, from confidentiality.

Confidentiality imposes a duty on a party receiving documents or information in confidence to maintain that confidence. Lawyers have a professional obligation to hold in confidence business and personal information acquired through a lawyer-client relationship, and may not reveal confidential information without the client’s approval or unless required by law.

A duty of confidentiality can arise in a number of other relationships and can also be imposed by contract or by the circumstances in which information is shared.

Categories of privilege

Solicitor-client privilege

Solicitor-client privilege protects certain communications between a client and its lawyer. Only communications are protected under solicitor-client privilege - physical objects are not. Solicitor-client privilege endures forever, even upon the death of the client. Only where one of the narrow exceptions is met, will solicitor-client privilege be waived. The requirement for establishing solicitor-client privilege are:

  • There must be a communication, whether oral or written
  • The communication must be of a confidential character
  • The communication must be between a client (or their agent) and a legal advisor, and
  • The communication must be directly related to seeking, formulating or giving legal advice

Preliminary discussions made by a prospective client to a solicitor with the view to retaining the lawyer will be privileged, even if the prospective client chooses not to retain the lawyer.

There is a continuum of seeking or giving legal advice and privilege may attach in particular circumstances even though a document itself does not incorporate specific legal advice.

Privilege may be asserted during the course of criminal investigations, as a basis for declining to provide documents or information that could be compelled absent privilege. For example, privilege may be asserted when authorities are executing a search warrant. The legal protection of solicitor-client privilege is not confined to the physical limits of a law office, but rather, 'any place where privileged documents may reasonably be expected to be located.' Privilege may also be claimed in the face of investigations by Canada’s Competition Bureau.

Litigation privilege

Litigation privilege (also known as 'solicitor’s brief' or 'attorney work product' privilege) protects from disclosure documents that are prepared for the dominant purpose of litigation. Litigation privilege does not exist to protect the confidential relationship between solicitor and client, but to facilitate the adversarial process of litigation. Even non-confidential material may be protected if the dominant purpose for its existence is litigation. Information obtained from third parties in the course of litigation, even without an expectation of confidentiality, is still subject to litigation privilege. Litigation privilege applies in both court and regulatory proceedings.

Litigation privilege requires that the documents in question must have been created:

  • In contemplation of litigation which is 'in reasonable prospect', and
  • For the 'dominant purpose' of use in the litigation.

'Reasonable prospect' means when a reasonable person, with all the relevant information, would conclude that it is unlikely that the claim for loss will be resolved without litigation. Litigation privilege is meant to create a zone of privacy for the lawyer or litigant during the course of litigation. Litigation privilege ends when the litigation ends. There may be overlap between solicitor-client privilege and litigation privilege, and solicitor-client privilege will continue even when the litigation has ended.

Settlement privilege

Written or oral communications made with a view to reconciliation or settlement are protected from disclosure. Settlement privilege belongs to both parties to the settlement discussions and cannot be unilaterally waived by only one party. In order for settlement privilege to apply, the following criteria must be met:

  • A litigious dispute must be in existence or within contemplation
  • The communication must be made with the express or implied intention that it would not be disclosed to the court in the event negotiations failed, and
  • The purpose of the communication must be to attempt to effect a settlement

The substance of the communication is more important than its form. Using the words, 'without prejudice' is not conclusive of the intention, but it may constitute evidence that the communication is privileged.

Other categories of privilege

Spousal communications

Communications that take place between spouses are privileged (in both criminal or civil proceedings). Although spouses can be compelled to give evidence against each other, the scope of their testimony may be limited by privilege.

Case-by-case privilege

Privilege may arise in other relationships on a case-by-case basis, where the following four criteria are met:

  • The communication must originate in a confidence that it will not be disclosed
  • This element of confidentiality must be essential to the full and satisfactory maintenance ofthe relationship between the parties
  • The relationship must be one which, in the opinion of the community, ought to be sedulously fostered, and
  • The injury that would inure to the relationship by the disclosure of the communications must be greater than the benefit thereby gained for the correct disposal of litigation

For example, a professor giving a candid opinion about a colleague to a tenure committee was held to be privileged. Also, a claim for protection of journalistic sources has been held to be privileged in certain cases. However, material prepared by an accountant for the purpose of providing tax advice to clients was not privileged.

Last modified 15 Mar 2019

China

China

The concept of legal professional privilege does not exist under the laws of the People’s Republic of China (PRC). PRC laws and regulations do not contain any provisions that exempt lawyers from being forced to disclose information they receive from a client to a third party. There is no attorney work-product protection and there is no protection of communications between lawyers and clients on the basis of legal professional privilege in China.

Legal professional privilege in the context of civil litigation

While the PRC Lawyer’s Law does contain provisions that require lawyers to keep confidential certain information they receive during the course of their practice, this requirement is not equivalent to the concept of legal professional privilege or attorney work-product protection.

The Lawyer’s Law provides that:

  • A lawyer must keep confidential information they receive from the client or others (who have not agreed to its disclosure) in the course of representing a client; an exception, however, is for information concerning the preparation or the commission of criminal acts (Article 38 of the Lawyer’s Law)
  • A lawyer shall keep confidential state secrets and commercial secrets which they obtain in the course of representing a client and should not disclose a client’s personal secrets (Article 38 of the Lawyer’s Law), and
  • The government may not conduct audio surveillance when a lawyer interviews a criminal suspect or defendant (Article 33 of the Lawyer’s Law)

However, a PRC lawyer may be forced to disclose information referred to in points 1 and 2 above by

  • PRC governmental authorities, although this is not specifically defined, and
  • An order of the court (Article 67 and Article 72 of Civil Procedure Law which came into effect on 1 July 2017)

Again, there is no claim for legal professional privilege since this concept does not exist in China.

Legal professional privilege in the context of criminal investigations

For criminal cases, the PRC’s Criminal Procedure Law also contains the general principle concerning a lawyer giving testimony, similar to Article 72 of the Civil Procedure Law. However, additional protection can be found in the revised Criminal Procedure Law (which came into effect on 26 October 2018). Article 48 provides that '[a] lawyer has the right to keep confidential information of the client obtained during the professional practice. For information that involves any impending or on-going criminal activity which would jeopardize national and public security or cause serious personal safety damage, a lawyer must inform PRC judicial authorities'. This provision has been seen as China taking a step forward to protect lawyer-client confidential communications, although it only applies to criminal cases. However, our understanding is that this provision does not afford blanket protection to 'lawyer-client communications' in practice and it is different from the concept of 'legal professional privilege' in common law jurisdictions. It also contains a number of exceptions that require disclosure of information to 'PRC judicial authorities' as described.

Legal professional privilege in the context of investigations by the antitrust / competition authority

Legal professional privilege does not exist in the context of investigation in China by antitrust and competition authorities.

Article 42 of the Anti-Monopoly Law provides that business operators under investigation, interested parties or other relevant entities or individuals shall cooperate with the anti-monopoly law enforcement authorities, and shall not refuse to impede their investigations. A similar provision can also be found at Article 14 of the Anti-Unfair Competition Law. These measures may be construed to impose the same requirements on lawyers to cooperate with competition authorities in the course of their investigations of anticompetitive conduct. In the merger review context, Chinese competition authorities may in some circumstances request information covered by legal professional privilege in foreign jurisdictions; refusal to disclose such materials may impact the merger assessment.

This provision is sufficiently wide in scope that lawyers are under the same obligation to cooperate with law enforcement authorities during their investigations.

Last modified 15 Mar 2019

Croatia

Croatia

In Croatia, principles and provisions on legal professional privilege are not contained in one single Act but in numerous Acts and Codes. The Constitution of the Republic of Croatia provides the foundations for legal professional privilege. Detailed provisions regarding legal professional privilege are contained in the following:

  • Legal Profession Act
  • Civil Proceedings Act
  • Criminal Act
  • Criminal Proceedings Act
  • Anti-Money Laundering and Terrorism Financing Act
  • Competition Act, and
  • Lawyers’ Code of Ethics.

Legal Profession Act

Under the Legal Profession Act, lawyers must preserve the confidentiality of anything that their clients have entrusted them with, or that the lawyers have discovered in the course of their representation of clients. This secrecy obligation must also be preserved by other persons that work or have worked in that law firm.

A search of a lawyer or his law firm may only be ordered by a court if the conditions under the Act which regulate criminal proceedings have been met. When searching a lawyer or a law firm, the secrecy of documents must not be violated to the detriment of a client. The search must be limited to the examination of only those documents and objects that are directly connected with the criminal offence concerned and which represents the basis for the search. The search can neither begin nor be carried out without the presence of authorised representatives of the Bar Association, unless they, without a justified excuse, do not respond to a timely invitation to be present at the search. Moreover, the judge who has issued the search warrant must be present at the search to decide which documents and objects should be examined.

Civil Proceedings Act

The Civil Proceedings Act provides that a witness (if that witness is a lawyer) may refuse to testify about the facts the client has confided to him as lawyer, as well as about facts which the witness has learned of in the course of performing his professional tasks.

Criminal Act

The Criminal Act provides that a lawyer who discloses confidential information entrusted to him in the course of performing his professional tasks may be subject to imprisonment of up to one year. However, no criminal offence shall be considered committed if the secret is disclosed in the public interest or in the interest of another person which prevails over the interest of maintaining the secrecy of the information.

Furthermore, a failure to report a serious criminal offence, for which long-term imprisonment is prescribed, represents itself a criminal offence of non-reporting of a criminal offence. However, the aforesaid does not apply to lawyers, which are not required to report a criminal offence committed by their clients.

Criminal Proceedings Act

The Criminal Proceedings Act states that lawyers cannot testify as witnesses in criminal proceedings initiated against their clients except if the client so requests. Moreover, lawyers are exempted from any duty to testify against their clients regarding information disclosed to them in the course of providing legal services to the clients.

Lawyers’ work products in relation to a client matter in connection with which the criminal proceedings are under way, and written statements of the accused to his lawyer, cannot be seized by the prosecutors or other authorities conducting criminal proceedings.

Anti-Money Laundering and Terrorism Financing Act

Under the Anti-Money Laundering and Terrorism Financing Act, the lawyer-client relationship provides a partial exception to the requirement of reporting suspicious transactions. More specifically, lawyers are not obliged to deliver information or documentation collected from a client while assessing their legal position or representing that client in a court proceeding.

Competition Act

In case of an unannounced search under the Competition Act, all letters, notifications and other means of communication between the company against which an investigation is conducted and its lawyer are protected against seizure (referred to as 'privileged communication').

Last modified 17 Jun 2016

Cyprus

Cyprus

Advocates admitted to the Cyprus Bar are regulated by the Advocates’ Law (Cap. 2) and the Advocates’ Code of Conduct Regulations of 2002 ('Regulations').

The Regulations provide that, as a general rule, legal professional privilege applies to the dealings and communications of all advocates with their clients. Legal professional privilege is both a fundamental right and a duty of the advocate not to disclose any confidential information which has arisen from communications with his client, whether in the context of legal proceedings or through a discovery process.

Communications between an advocate and client, or vice versa, for the purpose of giving or obtaining legal advice or legal services in relation to legal proceedings, whether such proceedings have commenced or not, are also protected by legal professional privilege.

The advocate-client relationship must firstly be established in order for the foregoing communications to qualify as privileged.

Legal professional privilege in the context of civil litigation

According to the Civil Procedure Rules, in particular Order 28 thereof, a party to litigation proceedings may apply to the Court for an order directing the other party to make discovery on oath or inspection of the documents which are or have been in the other party’s possession or power and which relate to any matter in question in the action. This procedure is called 'Discovery and Inspection'. A party may withhold the right to inspect a document, claiming that the documents are privileged from inspection. In such an event, the court is empowered to inspect the document for the purpose of deciding as to the validity of the claim of legal professional privilege.

Legal professional privilege in the context of criminal investigations

Legal professional privilege exists in criminal cases in the same manner as discussed above, unless there is an obligation to disclose privileged documents that could lead to the acquittal of the accused.

Legal professional privilege in the context of investigations by the antitrust / competition authority

Legal professional privilege extends to investigations carried out by The Commission for the Protection of Competition.

Last modified 15 Jun 2016

Czech Republic

Czech Republic

The legal basis for the protection of communications is found in the Czech Charter of Fundamental Rights and Freedoms (the 'Charter'). The right to legal assistance in proceedings before courts, other organs of the State and public administration organs is set out in Article 37(2) of the Charter. The right to protection against intrusion of personal life and confidentiality of letters is set out in Articles 10(2) and 13 of the Charter.

The protection of confidential communications between a lawyer and their client is set out in Act No. 85/1996 Coll. on the Legal Profession. In accordance with that law, a lawyer is obliged to preserve professional secrecy regarding any facts known to them in connection with their provision of legal services.

Legal professional privilege generally comes into play in criminal, administrative and civil proceedings when an on-the-spot inspection of a commercial premise, an office or a house takes place, exercised by the public authorities. It covers, for example, the situation when an officer of the Office for the Protection of Competition (the 'Office') enters commercial premises of competitors and finds, among other documents, documents that prove that an offence in the field of competition law has been committed.

The Czech case law recognising the concept of legal professional privilege is underdeveloped. While the rules governing legal professional privilege are not expressly set out in any legal regulation, case law has developed this concept in the area of competition law, based on general legal principles.

Generally, a public authority, in order to become familiar with the contents of a communication between a lawyer and their client, is obliged to obtain consent of the representative of the Czech Bar Association ('Chamber') and to inspect the contents in the presence of the representative of the Chamber. The consent of the representative of the Chamber can be replaced by a court order on a request submitted by a public authority requesting disclosure of the documents.

However, this procedure (ie to obtain consent of the representative of the Chamber or a court order) applies only in situations where a legal regulation requires it to be followed, and usually where the inspection is carried out on the premises of a lawyer. The procedure does not apply where an inspection takes place at the premises of a client.

Where a public authority seizes the evidence containing communications between a lawyer and their client from the premises of a party to administrative proceedings, no consent from the representative of the Chamber or court order is required.

Legal professional privilege is only discussed on the judicial level when the court decides on the merits of the case, eg when the actions against a public authority in the administrative judiciary are being decided. In accordance with the case law of the Supreme Administrative Court and the Regional Court in Brno, the seizure and familiarisation with the documents containing correspondence between a lawyer and a client does not conflict with the law.

Last modified 15 Mar 2019

Denmark

Denmark

According to The Code of Conduct for Danish lawyers, the concept of confidentiality is founded in the rule of law.  It is a necessary part of legal practice and a fundamental duty and right to be respected, in the interests of individual clients as well as being a matter of public interest.

Confidentiality between lawyer and client is therefore a general principle of Danish law, but it is not a statutory privilege in all areas of the law.  As regards the area of competition law, legal professional privilege is based on practices and soft law from the Danish competition authorities.

Legal professional privilege in the context of investigations by the Danish competition authority

In the context of competition law, legal professional privilege is subject to two different sets of rules, as competition law is enforced by two separate authorities. In criminal litigation, special rules regarding legal professional privilege apply. Within the area of administrative competition law, the principles of EU case law on legal professional privilege apply.

Competition law infringements in Denmark are subject to criminal sanctions including fines and imprisonment. The Danish Competition and Consumer Authority (“DCCA”) does not yet have the authority to impose administrative fines. Following the implementation of the ECN+ directive, such authority will be established under Danish law.

The Danish concept of legal professional privilege in the context of competition law cases is therefore based on (1); legal professional privilege subject to EU case law and applied by the DCCA in administrative cases, and (2) confidentiality privilege under criminal law applied by the State Prosecutor for Serious Economic and International Crime (“SEIC”) in criminal cases.

The DCCA has the power to acquire information pursuant to sections 17 and 18 of the Danish Competition Act (concerning requests for information and unannounced inspections, i.e. dawn raids). The authority’s actions are administrative coercive measures and are regulated by the Danish Act for Administrative Coercive Measures supplemented by EU case law on legal professional privilege (Lov om retssikkerhed ved forvaltningens anvendelse af tvangsindgreb og oplysningspligter).

If there are reasonable grounds to suspect that a person or legal entity under investigation has infringed provisions of competition law which would be subject to criminal sanctions, any administrative coercive measures, e.g. dawn raids, must be conducted in accordance with the criminal procedural provisions set out in the Danish Administration of Justice Act (Retsplejeloven). 

The SEIC constitutes the Danish fraud squad, whose power to conduct investigations and perform searches and seizures is regulated by the Administration of Justice Act. The SEIC has the power to issue a notice of fine, and, in its capacity as prosecuting authority, also conducts criminal proceedings before the courts.

In practice, the DCCA may conduct an administrative investigation if it suspects an infringement of the Danish Competition Act has taken place. The DCCA will in general refer a case to the SEIC as soon as it becomes reasonably clear that an infringement of the Competition Act has taken place.

In complex cases, the DCCA will often choose to conduct its own investigation and issue behavioural orders concerning any infringement, e.g. cease-and-desist orders. Such orders are subject to appeal.  If a party has appealed an order, SEIC will await the outcome of the appeal.

Legal professional privilege in administrative cases is not expressly set out in Danish legislation. However, the DCCA has issued guidelines on carrying out dawn raids and it follows from the guidelines that the DCCA recognises legal professional privilege. According to certain publications the DCCA adheres to EU case law on legal professional privilege. 

If a dispute arises during an inspection as to whether a document is covered by legal professional privilege, the DCCA will act in accordance with its dawn raid guidelines. Contested documents are placed and sealed in a briefcase for individual evaluation after the dawn raid has taken place. For electronic documents, the DCCA will make copies and store them on special hard drives for later review. The hard drives containing the copied data are sealed and placed in a locked safe in a specially secured investigation room at the DCCA. The entity under investigation or its representative (e.g. an external lawyer) is invited to witness when the seal on the copied hard drives is broken and to attend the subsequent search. During the search, the entity or its lawyers can specify which electronic documents it considers to be covered by legal professional privilege. These documents will be tagged and excluded from future searches. After completion of the search, the DCCA issues a report to the undertaking under investigation containing a list of documents tagged as potentially subject to privilege. The entity must explain the basis on which it claims privilege for such documents.  If the entity and the DCCA are unable to agree on which documents are to be included in the case, the DCCA will issue a written decision on the matter. A party may apply to stay and appeal the DCCA's  decision.

Legal professional privilege in the context of criminal investigations

SEIC's powers of inspection are set out in the Administration of Justice Act. SEIC is not bound by EU case law on legal professional privilege. Nevertheless, a party under investigation is entitled to request a lawyer and all correspondence between the client and its lawyer regarding the alleged infringement will be privileged and confidential. This protection applies from the time of the indictment; accordingly, any communications which are made up to the point of indictment are not protected, unless such communications would be covered by legal professional privilege under EU law. 

Legal professional privilege in the context of civil litigation

In Danish civil litigation it is generally a matter for the parties to decide what information they wish to disclose. If a party requests information to be disclosed, the other party is entitled to refuse the request and accept the procedural consequences of not submitting information.  

For competition law cases, the damages directive has been implemented in Danish law. As a result, the provisions in The Administration of Justice Act regarding discovery of documents in civil litigation apply. Accordingly, all documents and information are exempt from disclosure if they originate from persons who are exempt from giving testimony in civil litigation under witness exemption rules in The Administration of Justice Act. This encompasses advice received from a lawyer including in-house counsel.

Last modified 16 Jul 2019

Egypt

Egypt

The Egyptian legal system is a civil law system and is based upon a system of codified laws. The Egyptian Civil Code combines Shari’a law ("Islamic Religious Law") and Napoleonic Code (which forms the basis of the French Civil Code). Many civil codes of other Middle Eastern countries have modelled their legal system on the Egyptian Civil Code.

There is no established system of binding precedents in the Egyptian courts; previous judicial decisions do, however, have persuasive authority. In practice, the lower courts find themselves both morally and practically bound by the principles and precedents of the higher courts.

In many civil law jurisdictions in the region, including Egypt, the concepts of legal professional privilege and "without prejudice" communications do not exist per se. The parties therefore have the right to use any document which may support their position. Lawyers in Egypt, however, will be bound by duties of confidentiality; these duties in many cases incorporate concepts similar to legal professional privilege.

The common law concept of standard disclosure is not available in Egypt, which helps to protect internal confidential documents. A party can however request the court to order disclosure of a specific document, if it can be shown that the document in question is material and relevant to the dispute.

Last modified 18 Sep 2019

England and Wales England and Wales

England and Wales

Legal professional privilege is a concept which protects certain documents from disclosure in the context of legal proceedings. Without the protection of privilege those documents may need to be disclosed to the other side in litigation / arbitration prior to trial or could be seized / inspected by investigators in most regulatory procedures and relied on as evidence at a trial.

The law of England and Wales recognises two main types of legal professional privilege:

  • Legal advice privilege exists to protect confidential communications between a client and its lawyers, where the purpose of the communications is giving, seeking or receiving legal advice. It does not extend to communications with advisers who are not lawyers, for example tax advisers or accountants, and
  • Litigation privilege protects confidential communications between a client and its lawyers, or either of them and a third party, where the sole or dominant purpose of the communications is giving, seeking or receiving legal advice in connection with adversarial proceedings, or collecting evidence for use in those proceedings, at a stage when they are reasonably contemplated

Other types of legal professional privilege which are occasionally asserted are joint privilege and common interest privilege.

Legal professional privilege is a substantive legal right (not a procedural rule). It enables a person to refuse to disclose certain documents in a wide range of situations. No adverse inference can be drawn from a valid assertion of legal professional privilege.

Legal professional privilege only protects confidential documents. If documents which would otherwise be privileged contain information which is already in the public domain or which has been shared with third parties, legal professional privilege will be lost.

The legal professional privilege belongs to the client, not the lawyer, and does not depend upon the document being in the lawyer’s custody. Privileged documents can be (and frequently are) held by the client.

Last modified 7 Mar 2019

Estonia

Estonia

Legal professional privilege is enacted in the Bar Association Act. Legal professional privilege in Estonia consists of the following rights and obligations:

  • All information mediums related to the lawyer providing Legal Services (as defined further on) enjoy immunity.
  • Right to refuse answering questions in criminal proceedings as a witness regarding the information received in the course of providing Legal Services.
  • Right to refuse providing information to the Tax and Customs Board, when such information has been received in the course of providing Legal Services.
  • Lawyer’s right to be guided only by the laws, regulations and decisions of the Bar Association, professional ethics, good moral and conscience.
  • A lawyer may generally not be detained, searched or arrested based on the circumstances arising from his professional activity.
  • A law firm cannot be searched based on the circumstances arising from its professional activity.
  • Obligation to keep confidential the information received during the provision of Legal Services.
  • Obligation to keep confidential the fact of approaching the lawyer for Legal Services.
  • Obligation to keep confidential the amount of the legal fee paid for Legal Services (with the exception that the obligation does not apply to the amount of the legal fee paid with regard to provision of state legal aid).

Legal professional privilege in the context of civil litigation

In the context of civil litigation, there are no rules which would deviate from the general rule of legal professional privilege as described above. Moreover, the Code of Civil Procedure provides that, without the permission of the person in whose interests a duty to maintain confidentiality is imposed (eg a lawyer’s client), among others, representatives in civil or administrative matters, counsel in criminal or misdemeanour matters, or other persons who bear a confidentiality obligation on the basis of the law in relation to their occupation or professional or economic activities, cannot be heard as witnesses in civil litigation. This rule also extends to the professional support staff of the aforementioned persons. In addition to lawyers, this rule also protects other persons who fit the definitions (eg any non-lawyer representatives).

Legal professional privilege in the context of criminal investigations

In criminal investigations, the general rule is that the lawyer and his offices cannot be searched based on the circumstances relating to their professional activity. However, the judge or the pre-trial judge may approve a search of the lawyer or his offices where there is dominant public interest and the procedural guarantees (ie the lawyer must be present when his offices are being searched) are adhered to.

The personnel of the investigative body may only review and take away the information mediums specifically related to the grounds of the search. No wide-ranging search and removing of 'random' information mediums is allowed. With prior approval of the relevant court, the investigative bodies may also apply surveillance to the correspondence between the lawyer and the client. Therefore, the immunity of the information mediums and obligation of confidentiality related to the lawyer providing Legal Services can be limited in the criminal proceedings with the approval of the court. However, the approval to apply surveillance, and to review and take away the information does not automatically mean that these information mediums can be used as evidence in the criminal procedure. After the members of the investigative body have acquired the information mediums about or from a lawyer, law office or client (by searching or surveillance) and presented them to the judge hearing the matter, the judge will review the presented information and will decide whether the relevant information mediums enjoy legal professional privilege or not (Supreme Court decision 3-1-1-22-10). When the judge decides that the relevant information mediums are related to the lawyer providing Legal Services, the judge will refuse to accept these mediums as evidence.

Legal professional privilege in the context of investigations by the antitrust/competition authority

The general rule of legal professional privilege described above also applies in the context of investigations by the antitrust/competition authority. As regards to legal professional privilege in criminal proceedings in antitrust/competition related matters, the rules on legal professional privilege in the context of criminal investigations apply. As misdemeanour investigations in antitrust/competition related matters are very rare, there is no information on the relevant practice.

Regarding investigations by the antitrust/competition authority, it should be noted that although legal professional privilege is acknowledged in principle, it is common practice that documents are seized by the antitrust/competition authority in bulk (e.g. the whole hard drive is copied), including privileged documents. To avoid the possibility that the investigators could review privileged documents (even, if these cannot be used as evidence, these may contain valuable information for the purposes of the following investigation), the person/company under investigation should be able to clearly indicate the privileged documents. To be able to do that it is important to systemise privileged documents on a daily basis and preserve them as concentrated as possible (e.g. place them on a separate hard drive or folder designated for this purpose only).

Last modified 4 Aug 2016

European Union

European Union

The laws of legal professional privilege are not harmonised throughout the European Union, but are instead governed by the national law of individual EU Member States. However, EU rules on legal professional privilege do exist and these apply in the context of the enforcement by the European Commission of EU competition law.

EU legal professional privilege must therefore be considered in competition law matters involving, or possibly involving, the European Commission. The rules on EU legal professional privilege apply in that context, irrespective of any national rules on legal professional privilege.

EU legal professional privilege applies only where the investigation is carried out by the European Commission (including where the European Commission is assisted by a national competition authority of an EU Member State). An investigation by a national competition authority of an EU Member State is subject to the applicable national rules on legal professional privilege, including in cases where the national competition authority of an EU Member State investigates possible infringements of EU competition law.

EU legal professional privilege serves as an exception to the European Commission's investigatory powers. Documents covered by EU legal professional privilege are both protected against seizure during a dawn raid conducted by the European Commission and exempted from disclosure in response to a request for information by the European Commission.

There are no statutory provisions clearly establishing EU legal professional privilege. In the absence of these, the Court of Justice of the EU recognised EU legal professional privilege as a fundamental right in 1982, in the landmark case of AM & S v. European Commission (Case C-155/79). The Court of Justice of the EU held that EU legal professional privilege was necessary so that any person is able to consult a lawyer without constraints. EU legal professional privilege is an essential corollary to the full exercise of the rights of defence.

While the judgments of the Court of Justice recognising EU legal professional privilege relate to investigations by the European Commission into anti-competitive behaviour, EU legal professional privilege is presumed to apply also where the European Commission exercises its investigatory powers in relation to merger control and state aid matters.

Last modified 1 Apr 2019

Finland

Finland

Legal professional privilege in the context of civil litigation and criminal proceedings

Legal professional privilege in Finland is embodied in the provisions of the Code of Judicial Procedure (4/1734), Advocates Act (496/1958) and the Licensed Legal Counsel Act (715/2011), each as amended, concerning legal advisors’ confidentiality obligations and evidence production in legal proceedings. The extent of confidentiality obligations and prohibitions to testify vary depending on the lawyer’s tasks in connection with which confidential information has been obtained. There also exists a differentiation between advocates, licensed legal counsel and other lawyers. However, this differentiation is of minor importance in the context of civil and criminal litigation as principally only advocates and licensed legal counsel may act as attorney or counsel in legal proceedings.

Confidentiality

Section 5c of the Advocates Act provides that an advocate or their assistant shall not without due permission disclose the secrets of an individual or a family or a business, or professional secret which has come to their knowledge in the course of the advocate’s professional activities. Any information thereby obtained shall be kept secret regardless of whether or not it has been acquired in connection with tasks relating to legal proceedings. A similar provision is included in the Licensed Legal Counsel Act.

According to chapter 15, section 17 of the Code of Judicial Procedure, an attorney or counsel or an assistant thereof or an interpreter may not without permission disclose the secrets of an individual or a family or a business or professional secret that they have obtained:

  • in handling a task related to legal proceedings
  • in providing legal advice on the legal position of their client in a criminal investigation or in other proceedings prior to legal proceedings, or
  • in providing legal advice on the initiation of or the avoidance of legal proceedings. Furthermore, chapter 2, section 8 of the Criminal Procedure Act (689/1997) extends this rule to defence counsel and counsel for the injured party in criminal proceedings.

Breaches of statutory confidentiality obligations are punishable by law.

Prohibition to testify

Chapter 17, section 13 of the Code of Judicial Procedure stipulates that an attorney, a counsel or an interpreter may not without permission testify regarding to what they have learned:

  • in carrying out a task related to legal proceedings
  • in providing legal advice regarding the legal status of the client in a criminal investigation; or in another procedure prior to legal proceedings, or
  • in providing legal advice regarding the initiation or the avoidance of legal proceedings.

However, the court may oblige such person to testify if the prosecutor has brought charges for an offence for which the maximum sentence is imprisonment for at least six years. This exception does not apply to the defendant’s counsel.

Furthermore, an advocate, a licensed legal counsel or a public legal aid attorney may not without permission testify on a personal or a family secret or a business or professional secret which they have learned also when carrying out other tasks not related to those mentioned above. Nonetheless, the court may obligate them to testify if the prosecutor has brought charges for an offence for which the maximum sentence is imprisonment for at least six years, or if very important reasons, taking into account the nature of the case, the significance of the testimony for delivering judgment and the consequences of presenting the testimony as well as other circumstances, require testifying.

The obligation to refuse to testify is in force even where the person in question is no longer in the position in which they learned of the circumstance at issue in the testimony.

Where a lawyer would have the right or the obligation to refuse to testify in criminal proceedings, the lawyer also has an equal right or obligation in relation to the criminal investigation concerning the matter. Furthermore, a document may not be confiscated or copied for use as evidence provided that the document can be assumed to contain material on which a lawyer may refuse to testify and the document is in the possession of that lawyer or the person for the benefit of whom the obligation or the right to remain silent has been provided for.

Legal professional privilege in the context of investigations by the antitrust / competition authority

According to section 38 subsection 3 of the Competition Act (948/2011), an undertaking subject to investigation has no obligation to deliver documents to the Finnish Competition and Consumer Authority (the FCCA) which contain confidential correspondence between an external legal consultant and the client. The preparatory works of the Competition Act further clarify that the correspondence must be such that it may have relevance in connection with the fulfilment of the rights of defence of the undertaking. It can be found also in 'FCCA brochure on the inspection of business premises under Section 35 of the Competition Act (2017)' that the above mentioned correspondence must have been exchanged for the purpose of defending the company concerning the restriction of competition under investigation.

According to the preparatory works of the Competition Act, the provision is of an informative nature and corresponds to the principle of legal professional privilege enshrined in the case law of the European Court of Justice which, according to the preparatory works, can be deemed applicable in national investigations concerning competition law infringements. The FCCA has confirmed in the 'FCCA brochure on the inspection of business premises under Section 35 of the Competition Act (2017)' that it takes into account the decisional practice of the courts of the European Union regarding the legal professional privilege.

Last modified 15 Mar 2019

France

France

The concept of legal professional privilege as such does not exist in France because disclosure requirements in French litigation are extremely narrow. As a result, rules of legal professional privilege protecting documents from disclosure have not developed in France as they have in England and Wales, the US and other common law jurisdictions. Legal advice provided by a lawyer to their client is, instead, protected by professional secrecy.

Professional secrecy is a general obligation not to disclose secrets, imposed on all persons who, in light of their professional status, have access to such secrets. The obligation is sanctioned both by criminal law (art. 226-13 Criminal Code) and by disciplinary measures.

The question of whether a document is protected by professional secrecy in France is determined not by the content of the communication, but by the role of the author and / or of the recipient. In essence, a lawyer is prohibited from communicating information acquired in the course of assisting a client. This obligation is of public order. It is general, absolute and unlimited.

Legal professional privilege in the context of civil litigation

In the context of litigation, the relevant rule is Article 66.5 of Law 71-130 which provides:

'in all matters, whether it is advisory work or litigation, the legal opinions addressed by a lawyer to their client, or intended to be for their client’s benefit, the communications exchanged between a lawyer and their client, between the lawyer and their colleagues, the meeting notes and more generally all the documents of the file are protected by professional secrecy'.

Pursuant to this rule, in the context of a civil litigation, documents protected by professional secrecy may not serve as evidence and their production cannot be compelled.

Legal professional privilege in the context of criminal investigations

In the context of criminal litigation, the same rule applies. Moreover, Article 432 of the Code of Criminal Procedure expressly forbids the use of correspondence exchanged between the defendants and their lawyers as evidence. However, if a lawyer is suspected of committing a crime or being an accomplice to a crime, client exchanges may be used as evidence before the French criminal courts.

Note that, in addition, when acting in a fiduciary capacity, participating on behalf of their client in any financial or real estate transaction or assisting their clients in the preparation or execution of specific transactions, French lawyers are required to disclose their suspicions of tax fraud or financial offences to the authorities (Tracfin) via their Bar President, when applicable.

Legal professional privilege in the context of investigations by the antitrust / competition authority

The above-mentioned principles also apply in the context of investigations by the antitrust / competition authority. The authority may not seize materials that are covered by professional secrecy, at least to the extent that they affect the fundamental right of defence.

Last modified 1 Apr 2019

Georgia

Georgia

There is no specific provision regarding legal professional privilege under Georgian law. However, the Law of Georgia on Advocates, dated 20 June 2001 ('Law on Advocates'), the Professional Ethics Code of Advocates, dated 15 April 2006 ('Ethics Code'), and the Criminal Procedure Code of Georgia, dated 9 October 2009, provide some guidance as to the protection of a client’s confidential information by lawyers.

In particular, the Law on Advocates contains several provisions relating to the lawyer-client relationship. In the first place, a lawyer has an obligation to keep professional secrets confidential regardless of the time period that has elapsed, and not to disseminate information obtained from the client in the course of carrying out his legal activities without the client’s consent.

A lawyer carries out legal activities on the basis of an instruction by his client. In relations with investigative bodies and during proceedings in court (or an administrative agency), the lawyer has the duty to present the power of attorney issued to him by his client. Further, any information the lawyer receives from his client or from some other person wishing to receive legal advice must be kept confidential (there is no need to enter into a special/confidentiality agreement).

Additionally, a lawyer may not be questioned as a witness on the case in which he acted. Finally, a third party is prohibited from listening to or recording conversations between a lawyer and client, and correspondence between them is similarly secured.

Apart from the Law on Advocates, the Criminal Procedure Code of Georgia (Article 43) provides for the confidentiality and freedom of relations between the lawyer and the defendant (his client). Prior communication of a person (prior to his indictment) with his potential lawyer is also confidential. Finally, communication of a detained or arrested defendant with his lawyer can be restricted only by visual surveillance. There is no concept of legal professional privilege under Georgian law that protects from seizure documents in the possession of the client.

Other remarks

Under the Law on Advocates, the trainees and a lawyer’s assistants have the same obligation to observe the rules of secrecy. Trainees and a lawyer’s assistants may not be questioned on matters they became aware of while carrying out their professional duties.

Last modified 6 Jun 2016

Germany

Germany

Legal professional privilege in the context of civil litigation

Civil litigation in Germany is based on the principle of production of evidence (Beibringungsgrundsatz), which means that each party has to submit facts and means of evidence in support of its claim or defence. In consequence, there is, with very limited exceptions, no system of document discovery in civil litigation and thus no need for the development of specific rules of 'privilege' protecting documents from discovery in general.

Rather, Germany adopted a professional secrecy obligation for both general advice and litigation which applies to all members of the Bar. Pursuant to section 43a (2) Federal Attorney Regulation ( Bundesrechtsanwaltsordnung — BRAO), this obligation relates to everything that has become known to the lawyer in professional practice. Furthermore, if a lawyer is summoned as a witness, they have a right to refuse testimony pursuant to section 383 (1) no. 6 Code of Civil Procedure (Zivilprozessordnung — ZPO) with regard to all facts which fall under the scope of their secrecy obligation. Therefore, the secrecy obligation creates somewhat a functional equivalent to legal professional privilege, at least in so far as it relates to documents and information in the possession of the lawyer.

As mentioned above, there are limited discovery obligations which parties have to comply with in civil litigation. These exceptions are not of great significance in practice. However, pursuant to section 142 ZPO, the court may, at its own discretion, direct one of the parties or a third party to produce records or documents, as well as any other material, that are in its possession and to which one of the parties has made reference. In exercising its discretion, the court has to take into account whether the respective documents could contain any confidential correspondence between one party and its lawyer within the meaning of section 43a (2) BRAO. Subject to exceptional circumstances, such as deliberate abuse of this principle, any direction for submission of such documents would not be permissible. Similar restrictions can be derived from Articles 6 and 8 of the European Convention on Human Rights.

Additionally, pursuant to section 421 et seq. ZPO, a party may request the court to direct the other party to produce a record or document. This, however, can only be requested if the party tendering evidence alleges that the record or document is in the hands of the opponent and, pursuant to the stipulations of civil law, the party tendering evidence may demand the surrender or production of the record or document, or the opponent has referred to the said record or document during the proceedings.

Legal professional privilege in the context of criminal investigations

Communication between the lawyer and their client is protected by several seizure prohibitions based on the following principles:

Effective right of defence

This is protected by Article 6(3) of the European Convention on Human Rights as well as Articles 2(1) and 20 (3) of the German Constitution (Grundgesetz— GG). It protects correspondence and private notes from being seized if they relate to the client's defence, regardless of whether they are in the lawyer's or the client's possession.

Right to refuse testimony

This is the right of certain persons to refuse testimony. Pursuant to section 53 (1) no. and no. 2 of the Code of Criminal Procedure (Strafprozessordnung — StPO), a lawyer has the right to refuse testimony as to matters they are entrusted with in their capacity as defence lawyer. In connection with this, section 97 (1) no. 1 StPO provides that correspondence between the defendant and the persons entitled to refuse testimony shall not be seized ('defence correspondence'). Pursuant to section 97 (2) StPO, this prohibition does, generally, only apply if the person in question is in the possession of the respective documents.

Legal professional privilege has been only recently extended to apply in cases of criminal investigations against a lawyer. This legal change was brought by a recent amendment of section 160 a StPO. Accordingly, criminal investigations can no longer be conducted against lawyers in order to attain information that would be covered by the lawyer's right to refuse testimony.

There is, in general, no legal professional privilege protection applicable to in-house lawyers.

Legal professional privilege in the context of investigations by the antitrust / competition authority

Within the scope described below, legal professional privilege exists in the context of investigations by the competition authority. With regard to the effective right of defence and the seizure prohibition based on the right to refuse testimony, correspondence that relates to the client's defence shall not be seized. However, therefore, unlike under EU law principles, outside counsel work products are only protected if they are produced as defence correspondence. General outside counsel advice, specifically advice relating to the lawfulness of an agreement and the like, can be seized and used against the company, eg in order to prove intent. For details see below the 'Jones-Day-Decision' passages that do refer to anti-trust proceedings accordingly.

Communications between employees and in-house counsel or between a company and non-German authorised lawyers are not protected by legal professional privilege.

Last modified 15 Mar 2019

Greece

Greece

Legal professional privilege is fundamental to the proper practice of the legal profession. It is recognised and protected by the Constitution, the Attorneys’ Code of Conduct, the Code of Civil Procedure, the Code of Criminal Procedure and the Criminal Code and it is broadly defined as the obligation of the lawyer to keep confidential in favour of their client whatever information has been entrusted to them by the client.

Legal professional privilege derives from the special relationship of trust between the lawyer and the client. It is an institution that serves the public interest and, for this reason, it covers all aspects of communication between the parties. It survives the termination of the lawyer-client relationship and it even survives the death of the client. Breach of the lawyer’s respective obligations as against the client constitutes a serious disciplinary as well as a criminal offence.

Important exceptions to the legal professional privilege protection are found in Law 3691/2008 on money laundering as well as in Law 3213/2003, as amended, on the obligations of particular categories of persons (eg judges, MPs, owners of sports companies, etc.) to submit to the tax authorities statements of origin of their ownership on assets (the doctrine of 'pothen eshes' – 'where from'). Both pieces of legislation contain similar provisions, provided that lawyers are obliged to inform the authorities of any violation of the respective legislation if such information is acquired in the context of a particular course of dealings, involving the provision of legal advice, with their clients.

Legal professional privilege in the context of civil litigation and criminal investigations

The general rule is that legal professional privilege applies to all information communicated by the client to the lawyer and any exceptions to this rule are specifically prescribed by provisions of law. Therefore, legal professional privilege applies to both civil and criminal litigation. In relation to civil litigation, more specifically, it should first of all be noted that in the Greek jurisdiction there is no obligation for disclosure of documents as this is perceived in the context of English civil litigation proceedings. Disclosure of documents is understood as a procedural burden rather than a legal obligation. Evidence, including documents, not produced within the time frame provided by the Code of Civil procedure is inadmissible at a later stage without further consequences. In any case, the legal professional privilege exists and is protected in the context of the civil litigation and any submission of documents to the court is subject to the general rule above.

Similarly, legal professional privilege is protected in the context of criminal investigations.

Legal professional privilege in the context of investigations by the antitrust / competition authority

Legal professional privilege also retains its status during investigations conducted by the Hellenic Competition Commission ('Commission'). Although the Commission has broad investigation powers and extensive rights of access to documents of the business, resembling those of interrogating officers, the law providing for the powers and procedures of such investigations does not contain any specific exception to the protection of legal professional privilege. Therefore, documents protected by legal professional privilege should not be provided to the officers of the Commission for inspection. It should be noted that, in the context of competition law, the correspondence between the business and its in-house lawyers is not covered by the legal privilege protection (ECJ C-550/07) and therefore only correspondence with external lawyers is excluded from inspection by the Commission. Nevertheless, it is recommended practice that, in case the officers of the Commission insist on obtaining such documents, the business under investigation should provide those in a closed sealed envelope before a notary public, expressing its disagreement with the right of the Commission to access them.

Last modified 2 Mar 2015

Hong Kong

Hong Kong

In Hong Kong, legal professional privilege is a substantive right available under statute (Basic Law) and common law. Hong Kong’s legal system is based on English common law. The justification for legal professional privilege is the public policy interest in the need to facilitate the administration of justice by encouraging and enabling a client to consult their lawyer fully and frankly, and in complete confidence, safe in the knowledge that what they tell their lawyer will never be revealed to a third party without their consent.

Two main classes of documents and communications are protected on this ground, namely:

  • Those that are privileged, whether or not litigation was contemplated or pending (legal advice privilege), and
  • Those that are only privileged if litigation was contemplated or pending when they were made or came into existence (litigation privilege)

There is also common interest privilege. This privilege is in aid of anticipated litigation in which several persons have a common interest although all such persons have not been made parties to the action. They may share privileged information without waiving their right to assert lawyer-client privilege.

Common to these types of privileges is that these privileges cannot be claimed unless the relevant communication or document is confidential. Therefore, documents which are in the public domain are not privileged. Moreover, privilege is lost once the relevant communication ceases to be confidential. For example, if a client forwards an email from their lawyer to an accountant, the email loses confidentiality and will no longer be considered privileged.

In Hong Kong, the privileges exist in the context of civil litigation, criminal investigations and investigations by regulatory authorities.

The parties to a civil litigation or the subject of any criminal investigations or investigations by any regulatory authorities are entitled not to disclose any communications and documents which are covered by privilege (and such privilege has not been waived).

Privilege does not extend to cases where the document came into existence as a step in a criminal or illegal proceeding. However, to bring a case within this exception there must be a definite charge of fraud or illegality or a prima facie case must be made.

Last modified 15 Mar 2019

Hungary

Hungary

Hungary has no separate and independent right of legal professional privilege. However, pursuant to the Act on Legal Practice, legal practitioners are obliged to keep the confidentiality of attorney-client privileged information. This confidentiality obligation extends to documents and other data carriers containing such attorney-client privileged information.

Save for certain exceptions, legal practitioners are not bound by any confidentiality obligations vis-á-vis their clients where privileged information has been obtained in the course of work carried out for the benefit of that client. If privileged information is received from another practising attorney in the context of a particular case, the legal practitioner may not disclose such information to their own client if the person disclosing the information has expressly prohibited such disclosure.

The legal practitioner’s obligations of confidentiality are independent of the existence of a legal relationship, and survive any termination of the legal relationship or mandate.

Therefore, based on the above, no separate right exists that grants protection specifically to legal advice. It is, however, the necessary consequence of the obligation imposed on lawyers not to disclose information obtained due to their professional capacity.

Since confidentiality is a result of the secrecy obligation, its rights are connected to the lawyer and not to the legal advice. It is a right in personam. This practically means that only information communicated to and in possession of the lawyer is protected. Advice or information communicated by the lawyer to their client does not fall within the scope of protection (save for certain specific information, eg in the field of antitrust and competition law).

Legal professional privilege in the context of civil litigation

Legal practitioners must object to be heard as witnesses and / or may not disclose data related to attorney-client privileged information in any civil proceedings, except when they have been exempted from their confidentiality obligation by the person entitled to waive the obligation.

Legal professional privilege in the context of criminal investigations

Legal practitioners must object to be heard as witnesses and / or may not disclose data related to attorney-client privileged information in criminal proceedings, except when they have been exempted from their confidentiality obligation by the person entitled to waive the attorney-client confidentiality obligation. However, no waiver is possible in respect of attorney-client privileged information obtained by a lawyer acting as defence counsel. Nevertheless, legal practitioners may disclose attorney-client privileged information to the extent necessary to prove a crime committed against them by a person other than the client, or a crime committed against their client (with their client’s consent).

Legal professional privilege in the context of investigations by the competition authority

An investigation by the Hungarian competition authority is subject to applicable national rules on legal professional privilege. Legal practitioners must object to be heard as witnesses and / or must not disclose data related to attorney-client privileged information in any regulatory proceedings, except when they have been exempted from their confidentiality obligation by the person entitled to waive the obligation.

Where the investigation is carried out by the European Commission (including where the European Commission is assisted by a national competition authority of an EU Member State), communications relating to a procedure enforcing Articles 101-102 TFEU are granted protection. Also, communications predating the initiation of such procedure but which are related to its context are protected. Documents covered by EU legal professional privilege are both protected against seizure during a dawn raid conducted by the European Commission and exempted from disclosure in response to a request for information by the European Commission.

Last modified 15 Mar 2019

Indonesia

Indonesia

The concept of legal professional privilege in Indonesia is based on a lawyer’s professional obligation and right to maintain the confidentiality of anything known or acquired from his/her client as a result of their professional relationship. Hence, legal professional privilege is chiefly viewed as an individual lawyer’s professional obligation under Law No. 18/2003 on Advocates ('Advocates Law') and the Code of Ethics for Indonesian Advocates ('Advocates’ Code of Ethics').

Legal professional privilege is defined in the Indonesian context as both the rights and obligations of lawyers to maintain the confidentiality of their lawyer-client relationships.

Legal professional privilege in the context of civil litigation

Legal professional privilege applies in civil litigation. With regard to disclosure obligations in civil litigation, the Indonesian Civil Code (ICC) only requires the disclosure of the documents required to prove a certain right or to deny such a right of action. The confidentiality of a disclosed document is not protected as civil hearings are generally open to the public. In this regard, legal professional privilege may prevent a person from being obliged to disclose certain documents.

Article 146 paragraph (1) item (3) of the Indonesian Civil Procedure Law (Herzien Inlandsch Reglement or HIR) also contains a provision where a person may decline (resign) to be a witness if, due to his/her valid position, work or office, he/she is obliged to maintain confidentiality, but only with regard to matters which have been notified to him/her due to his/her position, work, or office.

Legal professional privilege in the context of criminal investigations

Legal professional privilege exists in the context of criminal investigations through:

  • The application of Article 19 of the Advocates Law and the Advocates’ Code of Ethics
  • Under specific provision in the Indonesian Criminal Procedure Code (Kitab Undang-Undang Hukum Acara Pidana or KUHAP) including:
    • Article 43 which provides that the seizure (confiscation) of letters or documents from parties subject by law to obligations of confidentiality (legal professional privilege), to the extent that it does not relate to a state secret, may only be seized with their permission or based on the specific permit of the Head of the relevant District Court, unless stipulated otherwise under laws.
    • Article 170 which further provides that a person under obligations of confidentiality based on their job, status or position may request to be released from the obligation to provide a statement as a witness relating to the matters entrusted to them. The judge shall determine the validity of the grounds for such request.

Legal professional privilege in the context of investigations by the competition authority

Law No. 5 /1999 on the Prohibition of Monopolistic Practices and Unfair Business Competition ('Anti-Monopoly Law') does not expressly waive lawyer-client legal professional privilege; hence, lawyers remain primarily obliged to maintain the confidentiality of their clients’ information during investigation by the Business Competition Supervisor Commission (Komisi Pengawas Persaingan Usaha or KPPU).

However, it is important to note that the relevant KPPU Regulation No. 1 of 2010 regarding the Procedures for Handling Cases ('KPPU Regulation No. 1') also contains and extends confidentiality protections. Some examples include:

  • The right of a reporting party in an examination to ask that their identity be kept confidential
  • The right of a witness in an examination to ask that their identity be kept confidential, and
  • The right of the respondent (ie the reported party) and the reporting party to request that the Head of the Panel of the KPPU declare the sessions are closed to the public in the event that the respondent and the reported party are to submit documents that are categorised as confidential in accordance with the prevailing laws.

Last modified 20 Aug 2016

Israel

Israel

Israeli law is based upon a common law legal system, which has been influenced both by its major religious communities and by the diverse history of the country (which, prior to its independence in 1948, was under Ottoman and then British sovereignty). Whilst predominantly a common law system, Israel's legal system does comprise facets of civil law, largely drawn from the Ottoman regime, German civil law and religious laws (including the Jewish Halakha and Shari’a law).

Despite numerous references in the Israeli Declaration of Independence, the State of Israel does not have a written constitution. The Knesset has responsibility for enacting statutes in the State of Israel.  

The Israeli Supreme Court (Beit Mishpat Elyon) is the final court of appeal in the State of Israel, reserved to hear appeals from the District Court (which deals with all civil and criminal matters not under the jurisdiction of a Magistrate Court). The Supreme Court also sits as the High Court of Justice in Israel, hearing administrative cases.

Unlike in many civil law jurisdictions in the region, the concept of legal professional privilege does exist in the State of Israel.

Last modified 18 Sep 2019

Italy

Italy

Legal professional privilege in the context of civil litigation

In the context of civil litigation, a defendant may challenge a request of disclosure by the claimant on the ground that the documents requested are covered by legal professional privilege.

Legal professional privilege in the context of criminal investigations

All documents can generally be seized under Italian rules. The only exception to this general rule is provided by Article 103 of the Italian Procedural Criminal Code (IPCC). It relates to the defence lawyer formally appointed in a criminal proceeding and provides that the public prosecutor cannot carry out inspections and / or searches of the defence lawyer’s premises (unless the defence lawyer is indicted). Under this provision, the public prosecutor cannot seize any documents at the lawyer’s premises which concern the defence strategy, the defence’s investigations and any correspondence between them.

Legal professional privilege in the context of investigations by the competition authority

The Italian Competition Authority (ICA) has wide investigatory powers in competition law cases. According to the Italian Competition Act, the ICA is empowered to conduct inspections at the business premises of the investigated company, take copies of extracts from books / business records, ask for oral explanations on the spot and undertake other investigations with a view to obtaining information necessary to bring to light infringements. On this basis, all documents can potentially be discovered and seized by the ICA.

However, the ICA’s investigatory powers are subject to various limitations (for instance, the need to protect confidentiality). Legal professional privilege prevents the ICA from examining certain written communications between the company and its lawyers.

Under Italian case law (see, for example, Supreme Administrative Court, 24 June 2010, No. 4016), case law established by the European Union Court of Justice should also be applied to domestic Italian cases.

Last modified 15 Mar 2019

Japan

Japan

Legal advice and certain information and materials are protected through the following concepts:

Confidentiality (concept of legal professional privilege in Japan)

Confidentiality is a basic right and obligation of a lawyer. It is also necessary in order for the lawyer to satisfy their fiduciary obligations to their client.

It is stipulated in the Attorney Act (Law No. 205 of 1949, Article 23) that a lawyer or a former lawyer shall have the right and the obligation to maintain the confidentiality of any facts which they may have learned of in the course of performing their duties ('Confidentiality Obligation').

Under the Code of Attorney Ethics created by the Japan Federation of Bar Associations (JFBA), if a lawyer discloses client information to others or violates the lawyer’s Confidentiality Obligation, the lawyer could be disciplined by the Bar Association.

Refusal rights

Refusal rights are the corollary to the Confidentiality Obligation. Lawyers are entitled to refuse court orders that would require the disclosure of client information or the attempt to seize documents or materials in the lawyer’s possession that are confidential.

Even if the client or person who has the right to keep such information confidential discloses the confidential information to a third party, this may not necessarily be a waiver of confidentiality. The lawyer’s refusal rights may remain in place if the client or person who has the right to keep such information confidential does not intend to permit the information to be publicised and the information is disclosed as confidential information and only to a limited number of people.

Unlawful disclosure of confidential information

Any lawyer or other professional who receives confidential information has an obligation not to disclose the confidential information which they have come to know in the course of their work. This obligation is imposed on them based on their status and the relationship of trust they form with their client. A violation of this obligation is a crime under Japan’s Penal Code (Law No. 45 of 1907) and could result in imprisonment for up to 6 months or a fine up to JPY100,000 (Article 134).

Legal professional privilege in the context of civil litigation

Lawyers are entitled to refuse court orders that would require the disclosure of client information under the disclosure process in civil litigation pursuant to the Civil Procedure Act (Law No. 109 of 1996, Articles 197 and 220.4(iii)). However, if confidentiality is waived by the client or the person who has the right to keep such information confidential, the lawyer may no longer assert the right.

In addition, a lawyer, including a registered foreign qualified lawyer, may refuse to testify regarding matters covered by the lawyer’s Confidentiality Obligation. These rights are guaranteed under the Civil Procedure Act (Article 197.1.2). It should be noted that although these rights may be asserted by the lawyer, if confidentiality is waived by the client or the person who has the right to keep such information confidential, the lawyer may no longer assert these rights.

Legal professional privilege in the context of criminal investigations

Under the Criminal Procedure Act (Articles 105 and 222), lawyers, including registered foreign qualified lawyers, may refuse to provide documents or items that contain the confidential information of others which they have been entrusted with and retain or possess in the course of their duties, unless:

  • The person in question has given consent for the disclosure, or
  • The refusal is deemed to be an abuse of rights wholly for the interests of the accused (unless the information is about the accused)

A refusal to disclose the confidential information would be an abuse of rights, for example if the information no longer needs to be protected because it has been disclosed to other parties.

In addition, a lawyer, including a registered foreign qualified lawyer, may refuse to testify regarding matters covered by the lawyer’s Confidentiality Obligation. These rights are guaranteed under the Criminal Procedure Act (Law No. 131 of 1948, Article 149). It should be noted that although these rights may be asserted by the lawyer, if confidentiality is waived by the client or the person who has the right to keep such information confidential, the lawyer may no longer assert these rights. Also, in criminal cases, the lawyer is not permitted to refuse to disclose confidential information if the refusal is deemed to be an abuse of rights wholly for the interests of the accused (unless the information is about the accused).

Legal professional privilege in the context of investigations by the antitrust / competition authority

In competition law investigations, lawyers and their clients are not protected by the Criminal Procedure Act and are not permitted to refuse to disclose documents or items containing confidential information. This is because, under Japanese law, competition law investigations are classified as an administrative / governmental procedure, not as a criminal investigation. Fewer protections are granted to lawyers in such investigations under the current legislation.

Last modified 15 Mar 2019

Kuwait

Kuwait

The second Article of the State of Kuwait's permanent Constitution of 1963 confirms that Kuwait's legal system is based upon Shari’a law ("Islamic Religious Law"). Legislation deriving from Shari’a is the main source of law in the state of Kuwait. The Amir has overarching responsibility for initiating, sanctioning and promulgating laws in the State of Kuwait.

However, in contrast to many other gulf states, such as the United Arab Emirates, the State of Kuwait's legal system is based upon a number of differing legal systems including French civil law, English common law, Islamic legal principles and Egyptian law.    

In many civil law jurisdictions in the region, the concepts of legal professional privilege and "without prejudice" communications do not exist per se, and the parties have the right to use any document which may support their position in civil litigation. This is the position in the State of Kuwait, which does not have any express provision in respect of legal professional privilege. Instead, lawyer-client legal professional privilege is interpreted under Islamic Religious Law.

Indeed, lawyers in the State of Kuwait are bound by duties of confidentiality which, in many cases, incorporate concepts similar to legal professional privilege. 

Last modified 5 Aug 2019

Latvia

Latvia

The Latvian regulatory framework for legal professional privilege applies to professional activities of a sworn attorney (Latvian – zvērināts advokāts), who is a member of the Latvian Council of Sworn Advocates ('sworn attorney'). The concept of legal professional privilege is stipulated mostly by the Advocacy Law of the Latvian Republic ('Advocacy Law'), by the Code of Ethics of the Sworn Attorneys ('Code of Ethics') and by the Criminal Procedure Law. Ultimately, a sworn attorney shall be independent in his professional activities. This right shall be granted by the state authorities and local government institutions, courts, prosecutors and pre-trial investigation institutions in the form of non-interference in the sworn attorney-client relations, even after the termination of that relationship.

Under the concept of legal professional privilege, sworn attorney-client relations are awarded a non-disclosure character. Namely, Article 67 of the Advocacy Law prohibits a sworn attorney from disclosing any secret of a client while providing legal assistance and, also, after termination of these relations. Moreover, a sworn attorney is obliged to ensure compliance with such requirement not only in his activities, but in the work of his employees as well. Similarly Article 1.3 of the Code of Ethics states that a sworn attorney cannot disclose any information obtained while providing legal assistance even if and once the legal relation with the client is terminated. Additionally, Article 2.1 of the Code of Ethics provides for a prohibition to harm and act against the interests of the client. According to the law, right of non-disclosure of the client’s information applies in the context of all the cases a sworn attorney conducts – civil, administrative or criminal. According to Article 6 of the Advocacy Law, it is prohibited for the state authorities and local government institutions, courts, prosecutors and pre-trial investigation institutions to:

  • Interfere in the professional activities of sworn attorneys, or exert influence or pressure them
  • Request information and explanations from sworn attorneys, as well as interrogate them as witnesses regarding the facts which have become known to them by providing legal assistance
  • Control postal and telegraph correspondence and to examine or confiscate documents, which sworn attorneys have received or prepared in providing legal assistance, to examine or confiscate them, as well as to execute a search in order to find and confiscate such correspondence and documents
  • Control the information systems and means of communication, including electronic means of communication, used by advocates in providing legal assistance, to remove information from them and to interfere with the operation thereof
  • Request information from clients regarding the fact of assistance provided by sworn attorneys and the contents thereof
  • Subject sworn attorneys to any sanctions or threats in relation to the provision of legal assistance to clients in accordance with the Advocacy Law, and
  • Hold sworn attorneys liable for written or oral announcements that they have made while performing their professional duties in good faith.

In the scope of criminal investigations, Article 122 of the Criminal Procedure Law provides for a similar regulation under the concept of immunity of a sworn attorney.

As a general conclusion, the regulatory framework for legal professional privilege is aimed at protection of confidentiality of legal assistance of a sworn attorney in Latvia. However, an exception to legal professional privilege is formed by the obligation to notify the government authorities, in particular regarding client cases that may be detrimental to public interests and in order to prevent activities related to money laundering and terrorism financing, such as:

  • Any suspicious and unusual transaction (according to the Law on Prevention of Money Laundering and Terrorist Financing)
  • When there is verified information on preparation or commitment of a crime (according to the Criminal Law).

Ultimately, under the Law on Prevention of Money Laundering and Terrorist Financing, the Office for Prevention of Laundering of Proceeds Derived from Criminal Activity may request information regarding the client’s transactions from a sworn attorney.

Last modified 1 Aug 2016

Lebanon

Lebanon

While the key tenets of the legal system of Lebanon are based upon both the Shari'a law ("Islamic Religious Law") and the French civil law system, much of Lebanon's legislation also derives from legal principles inherent within the Ottoman Empire.

By way of its constitution, which was amended on 21 September 1990, Lebanon constitutes a parliamentary democracy. The President is the head of the State of Lebanon and is charged with responsibility for promulgating the laws adopted by the Lebanese Parliament. In contrast, the Lebanese Prime Minister oversees the Executive Branch and presides over the Cabinet of ministers, which is responsible for implementing the executive functions of Lebanon. 

Lebanon has a tripartite judicial system, namely: civil courts, commercial courts and criminal courts. The Court of Cassation of Lebanon is the final court of appeal, reserved to hear cases of high value or  particular significance.

In many civil law jurisdictions in the region, the concepts of legal professional privilege and "without prejudice" communications do not exist per se, and the parties have the right to use any document which may support their position in civil litigation. This is the position in Lebanon, whose constitution does not contain any express provision in respect of legal professional privilege.

Last modified 18 Sep 2019

Lithuania

Lithuania

In Lithuania, the concept of legal professional privilege is understood as a duty of a lawyer to preserve a professional secret, as well as a set of general rules of substantive law (prohibitions), which ensure that such duty can be effectively fulfilled.

The definition of the lawyer’s professional secret is broad and covers any information, irrespective of its form or medium in which it is contained, that is obtained by the advocate when conducting his professional activities; cases where information shall not be deemed to be a professional secret are provided for by the law (eg money laundering prevention). The same concept of legal professional privilege exists in all contexts: civil litigation, criminal investigations, antitrust and competition investigations, etc.

Last modified 5 Sep 2016

Luxembourg

Luxembourg

The legal obligation on lawyers to maintain professional secrecy is set out in article 458 of the Criminal Code (Code penal).

The obligation of professional secrecy is also contained in the following: (i) the law of 10 August 2011 on the legal profession (loi sur la profession d'avocat) (the 2011 Law); (ii) the internal regulation of 9 January 2013 of the Luxembourg Bar (Règlement intérieur de l'Ordre des Avocats du Barreau de Luxembourg) (the 2013 Regulation); and (iii) the internal regulation of 22 April 2005 of the Diekirch Bar (the 2005 Regulation).

The professional secrecy of the lawyer is a matter of public order. It is general, absolute and unlimited in time, except as provided otherwise by law.

Violation of professional secrecy may be subject to a jail sentence of eight days to six months and a fine of €5.000.

The Criminal Code provides for two exceptions to the obligation of professional secrecy:

  • when one is called to testify in court; and
  • when one is required by law to disclose certain information.

Under the law of 12 November 2004 on the fight against money laundering and terrorist financing, as amended, the disclosure in good faith of any relevant information to the Luxembourg competent authorities does not constitute a breach of the duty to maintain professional secrecy and does not result in liability of any kind for the lawyer making the disclosure.

Legal professional privilege in the context of civil litigation

The judge is authorized to order the production of documents in both civil and commercial litigation (article 280 of the Nouveau code de procédure civile).

However, a judge may not order any lawyers participating in proceedings to produce documents, as this would be contrary to the right of defence and the right to a fair trial. In the absence of any specific or implied exception, the issue arises as to whether a judge could order a lawyer who had been instructed previously by a client but who was not currently retained by that client, to produce certain documents. (Such orders have been made in respect of banking institutions who were holding client documents.)

A lawyer may be called as a witness by the court (as permitted by the Criminal Code), in which case they will have to determine whether the facts on which they are questioned are protected by professional secrecy and if so, should only disclose to the court the circumstances in which the information came to their knowledge, so as to allow the court to determine whether professional secrecy applies.

Legal professional privilege in the context of criminal investigations

Legal professional privilege also applies in the context of criminal proceedings. (See below for the scope of legal professional privilege.)

A lawyer who is (him/herself) the subject of criminal proceedings, may disclose information covered by professional secrecy only to the extent strictly necessary for their defence.

Legal professional privilege in the context of investigations by the antitrust/competition authority

Searches of law firms may only be carried out in the presence of the Head of the Bar or their representative, or if they have been duly called to attend.

The Head of the Bar or their representative may make observations regarding the preservation of professional secrecy to the investigative authorities and all acts of seizure or proceedings must record the presence of the Head of the Bar or their representative, or their having been called to attend, under the penalty of nullity.

It is generally felt that the powers of the Head of the Bar to (only) make observations are too limited so that other measures should be available under law, such as a temporary stay imposed by the Head of the Bar on the review or seizure of certain documents by the authorities, leaving it up to the courts to determine whether or not the documents under consideration are protected by professional secrecy. However, these measures have not been implemented in Luxembourg legislation.

Last modified 15 Mar 2019

Macedonia

Macedonia

The duty to preserve professional secrets is provided under the Law on Legal Practice, the Code of Ethics, the Criminal Code, the Law on Criminal Procedure, the Law on Prevention of Money Laundering and Other Proceeds of Crime and Financing of Terrorism, and the Law on Litigation Procedure.

According to Article 17 of the Law on Legal Practice, a lawyer must keep as secret anything entrusted to him by his client.

According to Article 30 of that law, a violation of the duty of secrecy represents a serious violation by the law office and damages the reputation of the legal profession.

Part IV of the Code of Ethics (professional secret) provides that any information confided to a lawyer by his client regarding the requested legal advice, representation or defence, as well as any information obtained by the lawyer in another way, and which is confidential, shall be considered to be a professional secret.

The obligation to withhold professional secrets also covers the files from the lawyer’s archive. The lawyer must keep professional secrets in order to avoid disciplinary or criminal responsibility. The documents and information remain secret during the legal representation and defence, as well as later, as long as its public disclosure could damage the party concerned.

The lawyer may disclose information that is a professional secret, and was confided to him by his client, only if the client provides his clear consent, if it is in the interest of the defence (necessary for the defence), as well as when the lawyer obtains permission from the Bar Association. The Bar Association, during the consideration of the lawyer’s request, should assess all actual circumstances.

The Criminal Code contains an article on the unauthorised disclosure of a secret, which provides that a lawyer, notary, attorney, doctor, midwife or other health worker, psychologist, religious confessor, social worker or other person who, unauthorised, discloses a secret discovered while performing their profession shall be fined or sentenced to imprisonment for up to one year.

No crime is committed where the secret is disclosed in the public interest or for the interest of another person being of higher priority than the interest of keeping the secret. Prosecution shall be pursued through a private lawsuit.

Regarding the search of a lawyer’s offices, the Law on Criminal Procedure provides that a search of a law office can only take place if it is made against the lawyer and, in terms of subject, in relation to a particular article or document specified in the search warrant. When the search is conducted in a law office in the absence of a lawyer, a representative of the Bar Association shall be called. If that is not possible, another lawyer is called to be present. If the lawyer does not attend within three hours of calling, the search may be conducted in his absence.

The Law on Criminal Procedure also provides among other things that defence counsel for the defendant that has been entrusted as his lawyer, unless the defendant requests it, cannot stand as witness. Similarly, any person whose testimony would violate the duty of keeping a secret regarding what they learned of in the exercise of their profession (such as religious confessor, lawyer and doctor), unless relieved of that duty by a special regulation or in writing, cannot be called in the procedure as witnesses.

In relation to this, the Law on Litigation Procedure states that a person, who with his statement would violate the duty to keep an official or military secret, cannot be heard as witness, until the competent body relieves him of the said duty.

Furthermore, a witness can refuse to testify:

  • regarding anything with which the party as its attorney-in-fact has entrusted him
  • regarding anything the party or another person has confessed to him as religious confessor, and
  • regarding facts the witness has acknowledged as an attorney at law, medical practitioner or when performing another profession or activity, if there is an obligation to keep as secret everything acknowledged while performing the said profession or activity.

In the context of investigation procedures by the competition authorities, the Law on Protection of Competition provides that in the case of existence of circumstances that indicate the possibility for distortion of competition, the Commission for Protection of Competition may conduct an investigation into a particular sector of the economy or of particular types of agreements in different sectors of the economy.

In the course of the investigation, the Commission for Protection of Competition may in conclusion require the undertakings to submit data in relation to their economic and financial status, their business relations and connections, data on their statutes and decisions, the number and identity of the persons affected by such decisions, as well as other data being of importance in the investigation.

If any of the data referred to above constitutes a business secret, the undertakings shall be obliged to clearly mark such data and to indicate the legal grounds for its classification as a business secret. If data that constitutes a business secret is submitted, the undertakings shall be obliged to submit to the Commission for Protection of Competition one copy where the data that constitutes a business secret is included (confidential version) and one copy where the data that constitutes a business secret is deleted (non-confidential version). If the undertakings do not act as prescribed above and submit only a confidential version of the requested data by marking the data that constitutes a business secret, the Commission for Protection of Competition shall also require submission of a non-confidential version of the requested data within a period of three days as of the day of receipt of the data. If the undertakings fail to deliver a non-confidential version of the requested data within the determined time period, the Commission for Protection of Competition shall deem that the submitted data does not contain data that constitutes a business secret.

The Law on Prevention of Money Laundering and Other Proceeds of Crime and Financing of Terrorism excludes lawyers from being obliged to take measures and activities for the prevention of money laundering and financing of terrorism related to the sale and purchase of movable items, immovable partners’ shares or stocks, trade and management of cash and securities, opening and management of bank accounts, safe deposit boxes and other financial products, establishment or participation in the management or the operation of legal entities, representation of clients in financial transactions etc., when defending and representing a client in a court procedure.

Last modified 12 Aug 2016

Malta

Malta

Legal professional privilege exists in the context of civil litigation, criminal investigations and criminal proceedings, and investigations by the competition authority. Legal professional privilege primarily arises from law, and is generally an enhanced application of the duty of professionals to protect a secret.

Legal professional privilege in the context of civil litigation

In civil litigation, generally, all evidence may be demanded by a party, unless the provision of the evidence is disallowed or exempted by law. A court may compel a witness to answer any question which the court may allow to be put to him. Evidence that is irrelevant, or superfluous, or is not the best that the party can produce, will be disallowed by the court. A witness cannot be compelled to answer any question the answer to which may subject him to criminal prosecution, or any answer that reveals information relating to certain documents held by public authorities.

Generally, a party may demand the production of documents from a witness if that party shows that he has an interest in such documents being produced. Certain documents held by public authorities that are defined as 'exempt documents' by the Freedom of Information Act, or the disclosure of which is prohibited by any other law, may not be demanded.

The Code of Civil Procedure states that no lawyer or legal procurator without the consent of the client may be questioned about such circumstances as may have been stated by the client to the lawyer or legal procurator in professional confidence in reference to the cause.

Legal professional privilege in the context of criminal investigation

The Criminal Code imposes a duty not to disclose secrets on all persons who, due to their professional status, become the depositary of any secret confided in them. A breach of this duty of professional secrecy is a crime. It is therefore a matter of public order. The Professional Secrecy Act specifically includes lawyers, notaries and legal procurators among the categories of persons deemed to be depositaries of a secret.

In the context of criminal investigations or criminal proceedings, the Code of Civil Procedure states that no lawyer or legal procurator without the consent of the client may be questioned about such circumstances as may have been stated by the client to the lawyer or legal procurator in professional confidence in reference to the cause.

The Criminal Code also states that lawyers and legal procurators may not be compelled to depose with regard to knowledge of circumstances originating from the professional confidence which the parties placed in their assistance or advice.

The duty of professionals in general not to disclose a professional secret does not apply when the depositary of the secret is compelled by a specific provision of law to give the information to a public authority in the investigation or prosecution of a criminal offence. This exception itself has an exception in relation to lawyers and legal procurators, and this is what may particularly be referred to as legal professional privilege.

Legal professional privilege in the context of investigations by the antitrust / competition authority

In the context of investigations by the competition authority, the Competition Act gives the competition authority the power to investigate alleged breaches of this Act, and this includes the power to demand from any person any information or document which is relevant to the matter being investigated. The competition authority is not, however, entitled to order the production of any document or the disclosure of any information that is covered by the duty of professional secrecy.

Last modified 19 Aug 2016

Mexico

Mexico

Professional secrecy obligations are governed by local, not federal, laws in Mexico (ie for the Federal District, the Federal District Professions Law), pursuant to which all professionals (not only lawyers) have a professional secrecy obligation regarding matters entrusted to them.

As a general rule, by means of a court order, any person may be compelled to disclose information related to civil, criminal or antitrust procedures and documentation may be seized; provided, however, that such person is not listed as exempt (lawyers are exempted) in the criminal and civil codes (there is no exemption in antitrust and competition matters).

Last modified 10 Oct 2016

Morocco

Morocco

The Moroccan regulatory framework does not recognize the concept of legal professional privilege, such as this concept may exist in common law jurisdictions.

This said, Moroccan law establishes the principle of the protection of the confidentiality of information through the principle of professional secrecy.

The legal protection of the confidentiality of information is ensured from a professional perspective, not with regards to the content of the information itself. Consequently, the protection of a document by legal professional privilege is not determined by its content but by the quality and the role of its author and/or its recipient.

The principle of professional secrecy is set forth in article 446 of the Moroccan criminal code which provides that: 'All persons who are entrusted with secrets by virtue of their status or profession or function are prohibited from disclosing them'. Failure to comply with this provisions rule is punishable by imprisonment from one to six months and a fine between MAD 1,200 to 20,000 (approximately € 120 to 2,000).

Furthermore, the legal professional privilege is protected by the article 36 of the Dahir 1.08.101 dated on 20 October 2008 enacting the law 28-08 organising the profession of lawyer, which forbids lawyers from disclosing any information in breach of legal professional privilege.

Legal professional privilege in the context of civil litigation

In the context of civil litigations, article 5 of Moroccan Civil Procedure Code states that the litigating parties must show good faith during the litigation process. In practice, this principle does not mean that the parties have disclosure obligations as this may be the case in some common law civil procedure.

In the context of commercial litigations, a judge may ask a party to reveal an evidence even if this evidence is against its interests. This said, the requested party may oppose the professional secrecy and refuse to divulge the evidence, if the document is covered by the professional secrecy i.e. if it is, for example, a communication with its attorney.

Legal professional privilege in the context of criminal investigations

In accordance with the above mentioned article 36 of the Dahir 1.08.101, lawyers must respect the confidentiality of criminal investigation and refrain from disclosing any information taken from files or any items, documents or letters relating to an on-going investigation (ie emails, correspondence, notes, advice, and preparatory documents). In this context, lawyers are protected by this provision against any request coming from judicial or administrative authorities with regards to information protected by the legal professional privilege.

As an additional protection, the inspection or seizure of a laywer's office by the judicial police officers cannot happen without the presence of a judge or a public prosecutor. Also, the president of the bar association namely the Bâtonnier shall be notified and be present (Article 59 of the Moroccan Penal Procedure Code), all for the sake of protecting the confidentiality of the documents subject to the legal professional privilege which are in their office.

An important exception to the principles of legal professional privilege is provided for in the law n° 43.05 against money laundering as amended and completed. According to this law, legal professionals cannot refuse to divulge confidential information if such information is requested by the authorities in charge of investigating against money laundering. Moreover, this law imposes a disclosure obligation on legal professionals when they suspect money laundering activities while acting on behalf of their clients.

Legal professional privilege in the context of investigations by the competition authority

In the context of investigations by the Moroccan competition authority, the above mentioned principles and rules are applicable.

Last modified 15 Mar 2019

Netherlands

Netherlands

The Dutch concept of legal professional privilege is a general principle of law based on confidentiality and the right of non-disclosure. Legal professional privilege applies irrespective of the field of law, as legal professional privilege is linked to the quality of the lawyer admitted to the Dutch Bar (advocaat). Legal professional privilege or the professional duty to protect client confidences and secrets is laid down in Articles 10a and 11a of the Legal Counsel Act (Advocatenwet).

The duty to protect confidentiality is not absolute. For example, under the law implementing the EU Anti-Money Laundering Directive (Wet ter voorkoming van witwassen en financieren van terrorisme), (legal) professionals providing specific services such as advising on mergers and acquisitions of undertakings, are obliged to report unusual transactions. To this extent, the professional may need to set aside the duty to protect the confidentiality of their client’s information. The duty to report is subject to narrowly defined exceptions.

Legal professional privilege in the context of civil litigation

In the context of civil litigation, lawyers admitted to the Dutch Bar (advocaten) are not allowed to disclose information that is subject to legal professional privilege. When requested to testify as a witness or to produce documents, lawyers need to satisfy themselves that disclosure of the information is allowed. Lawyers cannot be compelled to answer questions or disclose information protected by legal professional privilege according to Article 165(2) Code of Civil Procedure (Wetboek van burgerlijke rechtsvordering). The scope of legal professional privilege covers all communications between lawyer and client in relation to a legal issue, including all information provided to the lawyer for the purpose of obtaining assistance in relation to a legal issue.

Legal professional privilege in the context of criminal investigations

If a lawyer is called as a witness in a criminal investigation, the lawyer can invoke their right of non-disclosure during the entire procedure (Article 218 of the Code of Criminal Procedure (Wetboek van strafvordering)). However, he cannot refuse to appear. Pursuant to Articles 96a and 98 Code of Criminal Procedure, information (such as documents and data) that are protected by legal professional privilege cannot be seized without the prior approval of the lawyer. However, documents which are not protected by legal professional privilege can be seized. .

Legal professional privilege applies to a search for seizure as well, which means this search needs to respect legal professional privilege. Any search and seizure at a lawyer’s premises needs to be pre-authorised by an examining judge and must be executed in the least burdensome manner. In practice, the dean of the relevant district’s Bar association will attend a search for seizure at a lawyer’s premises to confirm this.

In 2015 the Court of Appeal of The Hague (ECLI:NL:GHDHA:2015:2881) ruled that in principle, a lawyer’s phone may not be tapped. An exception applies if a lawyer personally is considered a suspect of a crime. Official reports based on privileged phone calls need to be destroyed and cannot be used in a criminal case(Article 126aa(2) of the Code of Criminal Procedure).

Under very exceptional circumstances, legal professional privilege can be set aside, for instance in cases of suspicion of an organised criminal group consisting of the lawyer and thier clients. In practice, setting aside legal professional privilege is very rare.

Lawyers are exempted from the duty to report certain crimes. It is generally assumed that a lawyer may not report a committed crime he becomes aware of in their capacity as a lawyer.

Legal professional privilege in the context of administrative law

Apart from its position as a general principle of law, administrative legal professional privilege regarding regulatory powers is guaranteed by Article 5:20 of the Dutch Administrative Code. Based on this article, professionals (lawyers, doctors, notaries and clergymen) are not obliged to cooperate with investigations of the administrative authorities charged with law enforcement, such as the Dutch Competition Authority (ACM), the Dutch Authority Financial Markets Authority (AFM), the Tax Investigation (FIOD) or the Dutch Central Bank (DNB), if by doing so they would breach their duty of confidentiality. These professionals can, and normally will, refuse cooperation and not disclose any information, data or documents.

Legal professional privilege in the context of investigations by the Dutch competition authority

Article 12g of the Act Establishing the Dutch Authority for Consumers and Markets (Instellingswet ACM), states that all materials (mostly documents and data carriers) at the premises of an undertaking, which would fall under legal privilege if they were held by the lawyer, fall under the scope of non-disclosure and cannot be seized, copied or used by the ACM. For lawyers, the legal professional privilege is based on Article 5:20 of the Dutch Administrative Code (Algemene wet bestuursrecht).

In practice, legal professional privilege applies to almost all lawyer/client correspondence. This correspondence includes:

  • Documents prepared by the client for the sole purpose of seeking legal advice from a lawyer
  • Any advice given by the lawyer, and
  • The client’s internal reports and summaries of the lawyer’s advice.

Legal privilege also extends to correspondence between a lawyer and advisers who are not lawyers and who are requested by the lawyer to provide information or non-legal advice in relation to the matter on which the lawyer provides legal advice. For example, if a lawyer engages an economist to advise in relation to a matter and bases the legal advice on the economist’s advice, the economist’s advice is also covered by legal professional privilege. However, following a judgement of the Midden-Nederland District Court (ECLI:NL:RBMNE:2017:4281), reports produced by third parties at a lawyer’s request for a purpose other than providing legal advice in relation to the subject-matter of those reports, are not covered by legal professional privilege. . Also, documents that were not created for the purpose of seeking legal advice are not covered by legal professional privilege solely on the basis that a copy of those documents was sent to a lawyer in relation to a request for legal advice.

If during an inspection a dispute arises between an undertaking (or its lawyer) and the ACM on the question whether or not a document is covered by legal professional privilege, the ACM will act in accordance with its Legal Privilege Policy (ACM Werkwijze geheimhoudingsprivilege advocaat 2014). In summary, this policy provides that the ACM inspectors charged with the investigation may take contested documents, without reviewing them, in a sealed envelope to the ACM office, where a specifically appointed ACM official who is not involved in the investigation decides on the confidentiality claim. The undertaking (and lawyer) in question are invited to make their views known to the privilege official.

Legal professional privilege in the context of merger control

The scope of legal professional privilege in the context of merger control remains undetermined in the Netherlands. This may partly be due to the fact that unlike investigations into cartels or abuse of dominance, merger control in itself is not aimed at detecting violations of the law. The regular review by the ACM of a notified merger normally does not give rise to the ACM making use of its investigative powers under the Dutch Administrative Code, according to which a refusal to cooperate would constitute a violation in its own right. In these circumstances, in relation to the regular review of a notified merger, the need to invoke legal professional privilege as an exception to the duty to cooperate tends not to arise.

If the ACM were to conduct a formal investigation into a violation of the merger control provisions, for example into a failure to notify a merger, or a failure to observe the standstill obligation in relation to a notified merger, the ACM would make use of its investigative powers under the Dutch Administrative Code and in that case the same rules on legal privilege as discussed above would come into play.

Last modified 11 Nov 2019

New Zealand

New Zealand

New Zealand law recognises two main kinds of legal professional privilege. The two kinds are commonly known as ‘lawyer / client privilege’ and ‘litigation privilege’. Both kinds of privilege are recognised in both civil and criminal proceedings.

Other types of privilege are also recognised. Perhaps most importantly, a party to a dispute or a mediator of a dispute has a privilege in respect of any communications or documents that were intended to be confidential and made in connection with an attempt to settle or mediate the dispute. This legal privilege does not extend to the terms of a settlement once it is actually reached. Also, the privilege does not prevent a party disclosing a settlement offer that it made on a ‘without prejudice save as to costs’ basis if the party to whom the offer was made rejected the offer but subsequently seeks a court order for legal costs in its favour.

There is also privilege in relation to certain special types of confidential communication, including communications with ministers of religion and, in criminal proceedings, with medical practitioners and clinical psychologists. However, there is no longer in New Zealand any privilege for communications between husbands and wives, civil union partners or de facto partners.

Legal professional privilege in the context of civil litigation

Any person who has privilege in information or in a communication has the right to refuse to disclose that information or communication or any opinion formed on the basis of it in any proceeding. The person who holds the privilege can also prevent any other person who also has the information or communication from disclosing it (provided that person did not receive the information or communication in a way that amounted to waiver of the privilege). In addition, a judge can order that evidence of a communication, information, opinion or document in which a person has privilege must not be given in a proceeding. The person who has the privilege, or any other interested party, can seek such an order from a judge.

A party’s discovery obligations in civil matters include identifying those documents in which privilege is claimed.

However, those documents do not have to be produced for inspection by other parties. The High Court Rules provide a regime for challenging a claim of privilege.

Legal professional privilege in the context of criminal investigations

In criminal matters, both the prosecuting party and the defendant are required to disclose certain information, but not that which is privileged. However, under the Criminal Disclosure Act 2008, a judge may disallow a claim of legal professional privilege by the prosecuting party if it is necessary for the defendant to present an effective defence.

As with civil proceedings (see below), in criminal proceedings a judge can order that evidence of a communication, information, opinion or document in which a person has a privilege must not be given in a proceeding. The person who has the privilege, or any other interested party, can seek such an order from a judge.

Legal professional privilege in the context of investigations by the antitrust / competition authority

The rules which apply in civil matters apply to antitrust and competition law cases. In addition, both lawyer / client privilege and litigation privilege are also recognised by the common law in areas that are not ‘proceedings’. This includes investigations by, for example, the New Zealand Commerce Commission. Where the Commerce Commission compels production of documents, those documents that are protected by lawyer / client privilege (and litigation privilege, if any) do not have to be provided.

Last modified 15 Mar 2019

Norway

Norway

Legal professional privilege exists in all civil litigation and criminal investigations and in relation to investigations by the Norwegian Competition Authority and the EFTA Surveillance Authority (ESA).

Legal professional privilege applies to qualified lawyers and junior lawyers, as well as those persons who assist the lawyer in their work. Legal professional privilege does not apply to legal documents that are in the hands of a third party.

Legal professional privilege supersedes the lawyer's duty of disclosure, including their duty to testify, unless otherwise prescribed by a statutory provision. Furthermore, documents protected by lawyer / client legal privilege cannot be confiscated by the Norwegian authorities.

Last modified 15 Mar 2019

Oman

Oman

The primary sources of law in the Sultanate of Oman are the Anglo-Saxon common law and Shari’a law ("Islamic Religious Law"). Islam is the basis of legislation in the Sultanate of Oman (pursuant to Article 2 of the Constitution of the Sultanate of Oman dated 6 November 1996 ("Constitution")). While the Constitution affirms the independence of the judiciary in Oman, in practice Omani courts are subordinate to the Sultan and are subject to his influence. He acts as a court of final appeal and intercedes in special cases, such as those concerning national security.

The Constitution provides for two types of legislation in the Sultanate of Oman. Firstly, primary legislation is promulgated by the Sultan, which is known as a Royal Decree. In addition, secondary legislation is issued pursuant to Ministerial decisions using powers granted by a Royal Decree.

In many civil law jurisdictions in the MENA region, the concepts of legal professional privilege and "without prejudice" communications do not exist per se, and the parties have the right to use any document which may support their position in civil litigation. This is the position in the Sultanate of Oman, which does not have any express provision in respect of legal professional privilege. Instead, lawyer-client legal professional privilege is interpreted under Islamic Religious Law.

Indeed, lawyers in the Sultanate of Oman are bound by duties of confidentiality which, in many cases, incorporate concepts similar to legal professional privilege. 

Last modified 25 Jul 2019

Poland

Poland

The concept of legal professional privilege does not exist under Polish law. However, lawyers are obliged by a duty to keep confidential all information which they became aware of in the course of providing legal services. In accordance with Polish law, lawyers are bound by the professional secrecy of lawyers, which means that they must keep all information concerning their provision of legal services confidential. Generally, the professional secrecy exists in all kinds of proceedings, including civil, criminal and competition law. However, under some circumstances, strictly provided by law, the secrecy obligation may be waived in criminal and competition proceedings.

Last modified 20 Mar 2019

Portugal

Portugal

In Portugal, a key requirement for the free exercise of the legal profession consists in the possibility for a client to disclose information to the lawyer related with the mandate given to the latter and also for the lawyer to receive said information on a basis of confidence. Legal professional privilege is, therefore, recognised as a fundamental right and duty of the lawyer, safeguarded both in the constitution of the Portuguese Republic and in secondary legislation (civil and penal legal frameworks).

The concept of legal professional privilege and its particularities are specifically provided in the statutes of the Portuguese Bar Association (see footnote 1) ('EOA'). According to the EOA, lawyers may not disclose any information, data or relevant facts obtained due to their professional status and the legal professional privilege extends to any document or data directly or indirectly related to the facts revealed in confidence to the lawyer. The obligation to maintain professional privilege is not limited in time and exists regardless of whether the act required from the lawyer involves judicial or extra-judicial representation, is paid or gratuitous, and even if the lawyer has not accepted the service.

This obligation is applicable to every lawyer that has had, directly or indirectly, any intervention in the matter. In the case of a law firm, this duty is extended to every lawyer and support staff of the firm and in practice, anyone who assists the lawyer can be obliged to maintain the same professional privilege. Any acts practiced by a lawyer in breach of legal professional privilege cannot be used as evidence in court. Moreover, breach of legal professional privilege rules can give rise to a disciplinary procedure, as well as civil and / or criminal liability.

Footnote 1: The EOA regulates the rights, conduct and code of ethics of Portuguese lawyers and was last approved by Law nr. 145/2015, of 9 September.

Legal professional privilege in the context of civil litigation

Legal professional privilege is fully applicable in civil litigation. This means that a lawyer cannot disclose, as a witness, any facts which they may have had knowledge of through the course of their professional activity, under the Civil Procedure Code.

See above special situations for waiving legal professional privilege.

Legal professional privilege in the context of criminal investigations

As mentioned above, a lawyer may refuse to testify about facts covered by legal professional privilege under the Code of Criminal Procedure. Any act practiced in breach of professional privilege cannot be used as evidence in court, under the Criminal Procedure Code and the EOA.

In what concerns raids, searches and seizures, those carried out in a law firm, or any other archive location, as well as the interception and recording of conversations or communications (phone or e-mail registered in the Bar Association) from a lawyer in the exercise of the legal profession, can only be ordered and presided by a judge according to the EOA. The concerned lawyer, the president of the Regional Council, the president of the delegation or a delegate from the Bar Association, as applicable, should be present during the diligence.

In the course of a raid, a lawyer can make a complaint for breach of legal professional privilege, in which case the judge must interrupt the investigation of the documents, seal them and wait for the president of the court of appeals to decide whether said documents can be accessed, according to the EOA. Despite the above, no correspondence concerning the exercise of the legal profession can be seized, except if such correspondence is related to a criminal fact in relation to which the lawyer has been formally accused, pursuant to the Ccde of Criminal Procedure and the EOA.

Legal professional privilege in the context of investigations by the antitrust / competition authority

The considerations concerning criminal investigations as set out above are fully applicable also in this type of investigation which concerns a misdemeanor (see footnote 2). The fact that Competition Act provides for specific rules regarding the Competition Authority’s powers of investigation and seizures  is without prejudice to the application of the principles of law and legal provisions concerning criminal investigations. In practice, this articulation of legal provisions is not always clear cut and in practice, especially as concerns surprise inspections and seizures, there are several topics where the Competition Authority’s actions are criticized by undertakings as not complying with the rights of defense and constitutional limits.

In 2012 the Competition Authority issued guidelines for investigations and the same expressly recognize 'lawyers’ legal privilege rules':

  • As applicable to all communications
  • That seizures and other raid actions taken in lawyers’ offices shall always be presided by a judge, a lawyer and a representative from the Portuguese Bar Association, and
  • That in case of doubt on whether a given document shall be subject to legal privilege, the Competition Authority shall seize it, catalogue it and place it in a sealed envelope for further evaluation by the competent court
Footnote 2: In Portugal the misdemeanor regime is a special sanctions regime, applicable to antitrust infringements via the Competition Act which is special law.

Last modified 15 Mar 2019

Qatar

Qatar

The primary source of law in Qatar is Shari’a law ("Islamic Religious Law"). This is confirmed in the first Article of the Permanent Constitution of the State of Qatar ("Constitution") which prescribes that “Qatar is an independent sovereign Arab State and the people of Qatar are a part of the Arab nation. Its religion is Islam and Shari’a law (Islamic Religious Law) is the main source of its legislations. Its political system is democratic."

The Government of the State of Qatar, from time to time, issue rules and regulations with the objective of supplementing Islamic Religious Law when the need arises. Articles 105 and 106 of the Constitution provide every Member of the Council of the State of Qatar with the power to propose bills. Once a draft bill has been reviewed and approved by the Council, and subsequently the Government, the draft law is referred to the Amir (Head of State) for ratification and promulgation. The power of law starts after publication in the official Gazette of the State of Qatar.

In many civil law jurisdictions in the MENA region, the concepts of legal professional privilege and "without prejudice" communications do not exist per se, and the parties have the right to use any document which may support their position in civil litigation. This is the position in the State of Qatar which does not have any express provision in respect of legal professional privilege. Instead, lawyer-client legal professional privilege is interpreted under Islamic Religious Law.

Indeed, lawyers in the State of Qatar are bound by duties of confidentiality which, in many cases, incorporate concepts similar to legal professional privilege.

Last modified 25 Jul 2019

Romania

Romania

Romanian legislation establishes the principle of protection of the confidentiality of information exchanged between the lawyer and its client through the concept of professional secrecy. The professional secrecy concerns knowledge and documentation in the possession of the lawyer only. As a result, documents relevant to a case are protected only when they are kept by a lawyer, not by the clients. Documents in the client’s possession are not generally protected, with the exception of the investigations of the Competition Council, in which case protection is recognized for the communications between the investigated undertaking and its lawyer, exchanged for the exclusive purpose of exercising the undertaking’s right of defence under the conditions in the Competition Law.

The concepts of legal professional privilege and professional secrecy in Romania are regulated by:

  • Law no. 51/1995 regarding the organisation and exercise of the lawyer’s profession ('Lawyer’s Law') and the Statute of the Profession of Lawyer ('Lawyer’s Statute')
  • Romanian Civil Procedure Code
  • Romanian Criminal Code and Romanian Criminal Procedure Code, and
  • Romanian Competition Law no. 21/1996 ('Competition Law')

Legal professional privilege under the lawyers' legislation

The Lawyer’s Law provides for the lawyer’s obligation of professional secrecy with regard to any aspect of a matter which was confided to them, unless otherwise provided by the legislation (Article 11 of the Lawyer’s Law).

The concept of professional secrecy is broadly defined by the Lawyer’s Statute as covering any type of information, in any form and on any medium, provided by the client to the lawyer with the aim of receiving legal assistance and with respect to which the client has requested the preservation of confidentiality, as well as any documents drafted by the lawyer containing or based on information provided by the client for the same purpose and which the client has requested be kept confidential (Article 228(1) and (2) of the Lawyer’s Statute).

Pursuant to article 10(1) and (4) of the Lawyer's Statute, the correspondence and information exchanged between the lawyer and the client, regardless of the support, cannot, under any circumstance, be brought as evidence in legal proceedings and cannot be depleted of the confidential character. Thus, the Lawyer's Statute does not allow for any intrusions of the State authorities in relation to the correspondence exchanged between the lawyer and their client. However, it is to be noted that the Lawyer's Statute has a legal force inferior to that of a law and its provisions are thus not enforceable in those cases where laws of a superior force, such as the Competition Law or the Criminal Code, provide for specific cases when the State authorities are not bound by legal professional privilege or by professional secrecy.

Lawyers cannot be called to testify and cannot provide information to any authority or person with regard to the matters entrusted upon them, except for when they have the prior, express and written approval of all clients having an interest in that respective matter (Article 45(2) of the Lawyer’s Law).

Legal professional privilege in the context of civil litigation

Under the Civil Procedure Code, the lawyer may not be called to testify about facts learnt in the course of performing their professional tasks. However, the client can allow the lawyer to testify as a witness before the court and provide information which would have been otherwise confidential and covered by professional secrecy (Article 317 of the Civil Procedure Code).

In addition, the court must reject a claim for filing a document in the case file where the disclosure of the document would infringe a legal obligation of preserving the secret (Article 294(1) par. 2 of the Civil Procedure Code).

Legal professional privilege in the context of criminal investigations

Written documents held by the lawyer or in the lawyer's office may only be taken by a prosecuting officer on the basis of a warrant issued according to the law (Article 34(1) of the Lawyer’s Law).

Based on a recent amendment to the Lawyer’s Law, written documents containing lawyer-client communications or written documents containing notes made by the lawyer regarding client defence related matters, cannot be taken or confiscated (Article 34 (2) of the Lawyer's Law).

The conversations and correspondence of the lawyer having a professional character may be intercepted or recorded only under the specific conditions and procedure provided by law (article 34(3) of the Lawyer's Law).

The relation between the lawyer and their client may not be subject to technical supervision, (see footnote 1) except for where there are indications that the lawyer is committing or preparing to commit certain specific crimes such as money laundering, tax evasion, corruption, terrorism, crimes against the financial interests of the European Union or in the case of other crimes for which the law provides the sanction of imprisonment for five years or more.

The Criminal Procedure Code expressly provides that professional secrecy can be opposed to the prosecutor during criminal proceedings (art. 306(6) of the Criminal Procedure Code).

Article 147(2) of the Criminal Procedure Code prohibits the retention or review of correspondence sent or received between the lawyer and the suspect, the person indicted or any other person defended by the lawyer, except for the case when the lawyer is committing or preparing to commit certain specific crimes such as money laundering, tax evasion or corruption.

Pursuant to art. 116(3) and (4) of the Criminal Procedure Code, a witness cannot be called to testify in relation to those facts or circumstances having a secret or confidential character, that may be opposed by law to judicial bodies, unless a waiver is obtained from the beneficiary or if there is a legal provision to the contrary.

However, in accordance with specific legislation regarding, for example, money laundering (Article 7 of Law 656/2002 regarding the prevention and sanctioning of money laundering and the establishment of certain measures for the prevention and fight against the financing of terrorism), a lawyer may be required to disclose information about their client’s identity and transactions.

Footnote 1: Pursuant to Article 138 of the Romanian Criminal Procedure Code, technical supervisions measures may consist in (1) interception of communications or of any other long distance communication means; (2) access to IT systems; (3) audio or video surveillance or photography; (4) location or observance by technical means.

Legal professional privilege in the context of investigations by the antitrust / competition authority

Legal professional privilege in the context of investigations by the competition authority (ie the Romanian Competition Council) was expressly regulated for the first time following the amendment of the Competition Law through Government Emergency Ordinance 75/2010 which entered into force on 5 August 2010. The legal framework is represented by Article 38 paragraphs (8) through (11) of the Competition Law and Article 24 of the Regulation regarding the organisation, functioning and procedure of the Romanian Competition Council.

In case of competition law investigations, to the extent the undertaking does not prove the privileged nature of the communication, the competition inspectors will seal and lift two copies of the document in question, together with the rest of the documents gathered during the dawn raid.

The President of the Romanian Competition Council will then urgently decide, on the basis of the evidence and arguments put forth by the investigated undertaking, whether the document will be deemed privileged or not. Should the President of the Romanian Competition Council decide to reject the privileged nature of the communication, the undertaking can challenge this decision before the Bucharest Court of Appeal within 15 days of the decision being communicated to the undertaking. The decision of the Bucharest Court of Appeal can be further challenged before the High Court of Cassation and Justice, within five days as of communication. De-sealing can only take place after the expiry of the time period in which the decision of the president of the Romanian Competition Council can be challenged, or, if challenged, after the court decision becomes final.

Legal professional privilege is also recognized in case of forensic inspections taking place at the headquarters of the Romanian Competition Council. A specific procedure in this respect is included in the Romanian Competition Council Procedural Regulation (including a maximum 10 working days term for the undertaking to indicate, in a reasoned way, the information that may be subject to the legal professional privilege). Same procedure above applies in case of dispute.

Last modified 15 Mar 2019

Russia

Russia

Russian law does not in general recognise the concept of legal professional privilege. However, the concept of legal professional privilege is still expressed in certain ways. The most similar concept is advocate secrecy. An advocate secret is any information connected with an advocate providing legal services to their client. Such information may include:

  • the fact of an advocate being contacted by a client
  • the information obtained by an advocate from their client
  • the evidence and documents collected by an advocate while preparing for a case
  • the content of legal advice provided to the client, etc

An advocate secret is protected by law and there is no need to enter into a special agreement (ie a confidential agreement).

Information considered as an advocate secret cannot be requested to be provided to any state bodies (either in the context of civil or criminal litigation or upon the request of the antimonopoly authority). Advocates cannot be questioned as a witness regarding circumstances that became known to them while rendering legal services to their clients.

Under Russian law, not every lawyer is considered an advocate. To gain the status of an advocate, a candidate must meet the special requirements set out in the federal law and pass a special exam.

If a lawyer does not have the status of an advocate, the information they receive from their clients can be protected by a regime of commercial secrecy. This regime differs from the concept of legal professional privilege.

Commercial secrecy is a specific regime for protecting confidential information. Commercial secrecy covers information of any character (production, technical, economic, organisational, etc including the results of intellectual activity in the scientific and technical area, as well as information on the methods for performing a professional activity) which has an actual or a potential commercial value because it is unknown to third parties. A regime of commercial secrecy shall be deemed to have been established if the holder of commercially secret information has adopted the set of measures listed in federal law to protect the confidentiality of the information.

A commercial secret cannot be disclosed to third parties unless it is officially requested by an authorised state body (investigating agencies, agencies in charge of a pre‑trial inquests, judicial authorities and antimonopoly bodies). A commercial secrecy regime cannot be applied to certain types of data specifically excluded by law (for example, constituent documents, documents confirming entries in the relevant state registers, etc). This means that the commercial secrecy regime does not provide immunity against document requests or seizure during inspections conducted by any competition authority (including dawn raids).

Russian competition law specifies that commercial secrecy cannot be established in relation to information provided by a party to a competition investigation on its own initiative to the regulatory authority. This means that commercial secrecy can only be applied to information that has been provided in response to a request from the competition authority, or obtained by the competition authority during an inspection.

The competition authority should not disclose any commercial secret obtained in the course of the exercise of its powers, except in specific circumstances permitted by law (eg upon the request of a court, investigation agency, etc). Therefore the commercial secrecy regime does not necessarily protect information or documents from disclosure to the competition authority, but it does serve to protect it from further disclosure by the competition authority to third parties (including other parties to the antimonopoly case).

If a commercial secret is wrongfully disclosed. the relevant employees of the competition authority may be subjected to civil, administrative and / or criminal liability. Damage caused by the disclosure of a commercial secret may be compensated by the state.

Last modified 15 Mar 2019

Saudi Arabia

Saudi Arabia

In the Kingdom of Saudi Arabia (KSA), the primary source of law is Islamic law Shari’a. In addition to Shari’a, the law in Saudi Arabia is derived from secular legislation passed by the government. Further, the KSA government, from time to time, issues rules and regulations with the objective of supplementing Islamic law when the need arises. Yet, the Legal Profession Law in Saudi Arabia does not have provisions concerned with the legal professional privilege. The lawyer-client legal professional privilege is interpreted in the KSA under Islamic law.

The constitution of KSA is Shari’a. The Shari’a in this respect does not refer to lawyers but refers to one who has been given a power of attorney ('Wakalah / Power of Attorney'). Powers of attorney are special enabling documents granted by Saudi Arabian persons or entities for use in Saudi Arabia that must be made before the competent notary public or other official having competence in order to be effective. They can create rights and obligations in various aspects, including civilian, criminal and competition enforcement. Enduring the Power of Attorney (POA), the attorney must take into account any instructions from the grantor of the power stipulated in the POA. The attorney has an absolute duty to act in the best interest of the grantor at all times. An attorney who acts improperly can be held personally and criminally liable for losses. The attorney must keep and preserve accurate records and accounts for all dealings and transactions when exercising his powers. Failure to do so is an offence. The attorney(s) cannot be paid for work done on behalf of the grantor, except out-of-pocket expenses directly connected to carrying out his duties. The attorney(s) cannot pay himself a wage for duties performed under the POA but may claim travelling expenses incurred in the performance of his duties.

Without prejudice privilege exists in the KSA and applies to all communications between parties (or their lawyers) which are aimed at the settlement of a dispute. All such oral and written communications should be expressed to be 'Without Prejudice', although the use of the term is neither necessary nor sufficient. There must be a genuine attempt at settlement for this privilege to apply.

In many civil law jurisdictions in the region, the concepts of legal professional privilege and 'without Prejudice' communications do not exist per se, and the parties have the right to use any document which may support their position in civil litigation. However, lawyers are bound by duties of confidentiality which, in many cases, incorporate concepts similar to legal advice privilege: for example, under the Saudi Law of Advocates, a lawyer may not disclose a secret with which he has been entrusted, or of which he has become aware in the course of practising his profession, unless such non-disclosure constitutes a violation of a Shari’a requirement.

Last modified 1 Sep 2016

Scotland

Scotland

The concept of legal professional privilege protects certain documents and information from disclosure in the context of legal proceedings which, in the absence of privilege, such material could require to be disclosed to the other side in litigation / arbitration prior to trial or could be seized / inspected by investigators in most regulatory procedures and could then be relied on as evidence at a trial.

The law of Scotland recognises two main types of legal professional privilege:

  • Legal advice privilege, which protects confidential communications between client and lawyer for the dominant purpose of seeking or giving legal advice (on any area of the law)
  • Litigation privilege, which protects confidential communications, including those with third parties, which are made for the dominant purpose of ongoing or expected litigation (ie an adversarial rather than an investigative or inquisitorial process)

Legal advice privilege applies to any communications where legal advice is sought or given and where the advice (or any document within which it is contained) remains confidential between lawyer and client. Litigation privilege covers discussions that take place and documents created in contemplation of litigation.  Whether litigation is in contemplation will generally be a question of fact and the issue will often turn on when actual contemplation began.

Legal professional privilege is a substantive legal right (not a procedural rule). It enables a person to refuse to disclose certain documents in a wide range of situations.  No adverse inference can be drawn from a valid assertion of legal professional privilege.

Legal professional privilege only protects documents which are confidential. If documents, which would otherwise be privileged, contain information which is already in the public domain or which has been shared with third parties, legal professional privilege will be lost.

The legal professional privilege belongs to the client, not the lawyer, and does not depend upon the document being in the lawyer’s custody.  Privileged documents can be (and frequently are) held by the client.

As a matter of general principle which may be relevant to the practical application of the rules of privilege, it should be noted that in Scotland the concept of pre‑action civil disclosure does not exist in the same manner as is found in England and Wales. Scottish procedure dictates that should a party wish sight of a document or other material, then it must generally request this through a formal judicial process known as commission and diligence or through a statutory procedure under the Administration of Justice (Scotland) Act 1972, during which a claim of confidentiality / privilege can be asserted.

Legal professional privilege in the context of civil litigation

Litigation privilege allows a litigant to prepare for litigation (civil or criminal) without fear that any documents produced for that purpose will subsequently have to be disclosed. It is wider than legal advice privilege in scope but only arises once litigation is reasonably contemplated or commenced. From that moment, it covers:

  • Confidential communications
  • Communications between any of a client, its lawyer and a third party, and
  • Communications for the purpose of the litigation

What is litigation?

Litigation privilege can normally be claimed in proceedings where judicial functions are being exercised by the court or tribunal. It can therefore be claimed in both civil and criminal proceedings and arbitration.

When is litigation reasonably contemplated?

The Scottish courts take a broad view as to when litigation is reasonably contemplated. In Young v. NCB, Lord Justice Clerk Thomson put it as follows: 'Once parties are at arm’s length or are obviously going to be at arm’s length the details of their preparation of weapons and ammunition are protected as confidential'.  The privilege does not cease to operate because litigation never takes place and continues even after the litigation has been concluded.

Communications with a third party

Unlike legal advice privilege, litigation privilege attaches to communications with third parties and so the concerns outlined above under legal advice privilege relating to the identity of the client do not arise.

'...for the purpose of the litigation'

The privilege operates only in respect of documents created for the purpose of the litigation. It will therefore cover pre‑litigation documents but not, for example, fact‑finding reports prepared in the immediate aftermath of an accident.

Legal professional privilege in the context of criminal investigations

Regulatory investigations in the UK are not automatically considered to be adversarial from the outset and hence litigation privilege may not arise. The result is that legal advice given in the context of such an investigation will attract legal advice privilege, but documents including notes, interview transcripts and / or expert reports for the purpose of giving advice or evidence may not be privileged and so could be disclosable to a regulator or in subsequent litigation.

Litigation privilege will apply in any case once it is clear that some form of prosecution or litigation arising from the investigation is in contemplation or, at an earlier stage, if the investigation process itself has become sufficiently adversarial so that the company under investigation effectively stands accused of wrongdoing and should, therefore, be able to claim litigation privilege over witness evidence gathered for the purpose of obtaining advice to defend itself.

The rule against self‑incrimination states that no person is bound to release any document or information if the document or information would have a tendency to expose them to subsequent prosecution.

In relation to documents, the position regarding execution of a search warrant by Police in respect of files held by solicitors has been recently considered in Clyde & Co (Scotland) LLP v Procurator Fiscal, Edinburgh [2016] HCJAC 93 and H Complainers (5 February 2016, as yet unreported due to the proceedings not yet having concluded).

In summary, the courts have held that where it is clear that what is to be searched is a solicitors’ office and that legal privilege is being asserted, any warrant ought either to have provided for independent supervision of the police search by a Commissioner appointed by the court, or to have contained a requirement that any material seized should be sealed unread and delivered to the court to enable a Sheriff to adjudicate upon the issue in the context of information provided in responding to questions from the Police or Crown, whether an incriminating reply is considered admissible will turn on the context in which it was provided.  Should an individual not appreciate the concept of privilege before providing a response, or where privilege is claimed and refused, the position regarding admissibility of the response has yet to be fully tested in Scotland and there is no reported case law on the issue, the likelihood is that English authorities would be followed by a Scottish court on the point to the extent that if privilege is incorrectly refused, information provided in response to questioning will be inadmissible in any subsequent proceedings.

If a witness is aware of privilege but simply does not assert the right, the position in England is that an incriminating answer is admissible either in the present or any future criminal proceedings. The likelihood is that a Scottish court would adopt the same approach, as long as the witness was warned by the presiding judge in advance (Graham v HM Advocate 1969 SLT 116).

Legal professional privilege in the context of investigations by the antitrust / competition authority

Distinct from legal professional privilege, Part 9 of the Enterprise Act 2002 ('EA 2002') creates a statutory confidentiality regime covering most competition‑related inquiries undertaken by domestic authorities within the UK. This regime can be significant in any litigation following a competition inquiry where disclosure of documents created during the inquiry is sought by a party to the litigation.

The relevant sections of EA 2002 prevent disclosure by any party of documents disclosed to it by an authority in the exercise of its legal functions (without consent from that authority). In practice, this means:

  • Documents received from or authored by the authority itself cannot be disclosed
  • Documents created by third parties which came to the authority during the investigation and were then disclosed to the company cannot be disclosed (this might include documents from another company subject to the same investigation)
  • Documents created by the company under investigation before the investigation and provided to the authority in the course of the investigation may still be disclosed, and
  • Documents created during the investigation relating to employee interviews and witness statements; whether such documents can be disclosed will depend on the author of the documents in question. If they were created by the company, then they may be disclosed. If they were created by the authority from interviews / transcripts with company witnesses, they may arguably not be disclosable

The Competition Act 1998 ('1998 Act') is explicit in stating that the power to require the production of documents, either on written notice or during an inspection, does not extend to privileged communications. A privileged communication is defined by section 30 of the 1998 Act to mean a communication:

  • Between a professional legal adviser and their client, or
  • Made in connection with, or in contemplation of, legal proceedings and for the purposes of those proceedings which would be protected from disclosure in proceedings in the Court of Session on grounds of confidentiality of communications.

Last modified 15 Mar 2019

Serbia

Serbia

Legal professional privilege exists in Serbian legislation, but it is in many aspects different from the concept widely accepted in the EU. Also, the scope of legal professional privilege is not regulated/defined in the same manner in various pieces of legislation in Serbia. Additionally, the practice in this area is relatively infrequent and undeveloped. Finally, it is reasonable to assume that Serbia, as a candidate country for EU membership, would do its best to become compliant with the EU acquis communautaire in many aspects, so it is very likely that the current concept of legal professional privilege will be challenged, both in practice (ie through implementation by the national authorities) and in future legislation. The practical consequence of this is that companies operating in Serbia and elsewhere would need to appreciate the myriad of factors that generate a higher level of legal insecurity and should act very cautiously. In Serbia, legal professional privilege is found to exist in various legal acts – from the Serbian Constitution to various laws and sub-laws. Notably, legal professional privilege in all these pieces of legislation often deals only with certain aspects of the conventionally accepted meaning of the legal professional privilege, and consequently the scope thereof differs.

Constitution

The Serbian Constitution guarantees the 'confidentiality of letters and other means of communication' and the 'right of defence' as basic human rights. Legal professional privilege is the sui generis legal concept founded on these fundamental human rights (and surely relating to the specific relationship between a lawyer and his client which is based on trust).

Advocacy law, Bar Association statute and the Code of Ethics

The general obligation of a lawyer regarding legal professional privilege is provided in the Advocacy Law, the Statute of the Bar Association and the Code of Ethics. Pursuant to the Advocacy Law, the correspondence between the lawyer and the client is confidential and represents the 'professional secret'. The lawyer is required to keep as confidential all information entrusted to him by the client or obtained otherwise in the preparation, during and after the representation of the client. If the lawyer violates any confidentiality obligation towards the client, the Bar Association is entitled to initiate disciplinary proceedings against the lawyer and even to impose a sanction of revocation of his licence to practise law.

Legal professional privilege in the context of civil litigation

In civil proceedings, a lawyer is entitled to refuse to testify as a witness about the facts which the client entrusted to the lawyer as his legal representative. The court shall inform the lawyer about his right to refuse to testify. There are no other notable references to legal professional privilege in the Civil Proceedings Law.

Legal professional privilege in the context of criminal investigations

In criminal proceedings, in order for a communication to be legally privileged, the communication must be directly related to the client’s right of defence, ie the information must be entrusted to the lawyer within the scope of representation in defence.

In practice, it happens that clients sometimes issue a general power of attorney in which is stated that the lawyer represents in defence the client in all the client’s matters and affairs. This potentially may provide to a certain extent some level of security that all information learned of by the lawyer might be treated as privileged in the context of criminal proceedings. However, there is a great deal of risk the courts would disregard such approach and instead protect only the information directly related to concrete representation in defence.

In relation to criminal proceedings, the Serbian Criminal Code provides that 'not reporting a committed (certain) criminal acts or offender' is a criminal act which shall be prosecuted ex officio by the public prosecutor. However, it is explicitly provided that the defence lawyer in that concrete case shall not be prosecuted for that criminal act. This is a direct consequence of the application of the concept of legal professional privilege.

Legal professional privilege in the context of investigations by the antitrust / competition authority

Legal professional privilege in administrative proceedings corresponds to the manner of application in civil proceedings. The exception to this general rule is an administrative proceeding before the Competition Commission, to which special rules apply. Serbian competition law explicitly states that the letters, notices and other communication between the lawyer and client directly related to the procedure before the Competition Commission represent privileged communication (please note that the same rule as in criminal proceedings applies – the communication has to be directly related to the procedure before the Competition Commission).

However, competition law also prescribes a provision which seems to be inconsistent with – or even contrary to – the reason for the very existence of the legal professional privilege. It provides that the President of the Competition Commission can decide to review the content of privileged communication if they suspect the misuse of such communication, and to decide to remove the privilege over communication or part of it. This law provides no clear criteria or conditions based on which the President of the Competition Commission can evaluate and declare certain communication as 'misused'. This represents a serious threat to the parties that their communication with their lawyers can be processed and used against them (at least indirectly, through the learning of pieces of information found in the communication, and leading to further evidence).

Additionally, although it defines privileged information, competition law does not explicitly refer to the prohibition of use of such privileged information as evidence in the procedure (stating that the same rules that applied for 'protected information' shall be applied to 'privileged communication', meaning that in certain situations it can be only decided that the privileged communication source or the privileged communication itself cannot be disclosed to third parties, without 'carving it out' from other documents).

This clearly implies that lawmakers did not recognise the real purpose of legal professional privilege. The real purpose of legal professional privilege is not to prevent publication of privileged communication to any third party or to be able to lift the protection over it in certain circumstances, but to ensure that the party and its lawyer communicate freely, without the fear that their communication can be used as evidence in proceedings such as competition law investigations. While the Competition Commission recognises this right, it seems they would have a solid legal ground to bypass it, which inevitably generates considerable risk for companies.

Finally, please note that the Competition Commission based on Serbian competition law has the right to conduct 'dawn raids'. However, in practice, this is very rare. It is expected that with Serbia approaching the EU, this extremely important segment of competition legislation would be more utilised in practice.

Last modified 1 Aug 2016

Singapore

Singapore

The discovery process in civil, criminal and regulatory proceedings in Singapore is subject to common law and statutory rules on legal professional privilege.

In common law, legal professional privilege can take two forms, namely legal advice privilege and litigation privilege. Legal advice privilege protects confidential communications passing between a lawyer and client (or the agent of a client) for the purpose of providing or obtaining legal advice, whether or not litigation is contemplated. It does not protect communications between the lawyer and third parties, unless those third parties were acting as the client’s agent at the time. In contrast, where the communication or document was prepared in circumstances where there is a reasonable prospect of litigation, the communication or document will be privileged, even if it passed between a lawyer and a third party that was not acting as the client's agent. This form of privilege is known as litigation privilege.

In terms of the statutory rules, sections 128 and 131 of the Evidence Act (Cap. 97) govern the extent of permissible disclosure of privileged communications. These provisions apply to 'judicial proceedings in or before any court' in Singapore, whether civil or criminal in nature (see section 2(1)).

Section 128 provides that no 'advocate or solicitor' is permitted, without their client’s express consent, to disclose any communication made to them in the course and for the purpose of their employment as such advocate or solicitor by or on behalf of their client, or to state the contents or condition of any document, or to disclose any advice given, in the course and for the purpose of such employment.

Section 128A extends this prohibition to any 'legal counsel in an entity'. This includes legal counsel employed by corporate entities that are 'related' within the meaning of section 6 of the Companies Act (Cap. 50).

Section 129 specifies that sections 128 and 128A shall apply to interpreters and other persons who work under the supervision of legal professional advisers.

Section 131 further provides that no person shall be compelled to disclose to the court any confidential communication between them and their 'legal professional adviser'. The Evidence (Amendment) Act 2012 added to the Evidence Act a new section 131(2)(b), which clarifies that the term 'legal professional adviser' includes in-house counsel.

Sections 128 and 128A also provide that they shall not apply to protect from disclosure any communication between an advocate or solicitor and client made in furtherance of any illegal purpose, or any fact observed by an advocate or solicitor in the course of their employment showing that a crime or fraud has been committed since the commencement of their employment.

Discovery and legal professional privilege in civil proceedings

Legal professional privilege is an exception to a litigant's discovery obligations in civil proceedings. The Singapore Rules of Court provide for 'general' discovery (under O. 24, r. 1) and 'particular' discovery (under O. 24, r. 5). Where an order is made for general discovery (which the Court may make on its own motion or upon application by a party), the party against whom the order is made must provide a list of documents which:

  • Are or have been in their possession, custody or power
  • The party will rely on
  • Could adversely affect their own case, or
  • Adversely affect another party’s case, or support another party’s case

If a party makes an application for 'particular' discovery, the Court may make an order requiring any other party to submit an affidavit stating whether any document specified or described in the application is, or has at any time been in their possession, custody or power (and if not, when possession, custody or power over the document was lost). An application for particular discovery must be supported by an affidavit in which the applicant states their belief that the document (or class of document) sought in the application falls within one of the following descriptions:

  • A document on which the party relies or will rely, or
  • A document which could adversely affect its own case, adversely affect another party’s case, or support another party’s case

Applications for specific disclosure may also be made in respect of documents that may lead the applicant to embark on a train of inquiry resulting in their obtaining additional relevant information.

Where an order for general or particular discovery has been made, the duty to disclose the documents within the scope of the order is a continuing one that must be complied with throughout the life of the proceedings (O. 24, r. 8). Discovery obligations are taken seriously by the Singapore courts. Lawyers have an ethical duty to inform clients of their responsibilities in the discovery process – to preserve and make available all documents required to be disclosed – and to take the necessary steps to discharge those responsibilities. The Legal Profession (Professional Conduct) Rules require a lawyer to cease acting for a client if the client prevents the lawyer from complying with the duty to disclose documents, and judgments may be set aside (or cases dismissed) if discovery obligations are not met.

Legal professional privilege in criminal investigations

Legal professional privilege applies to criminal proceedings to the same extent and in the same manner as in civil proceedings. It remains unclear whether legal professional privilege curtails in any way a criminal investigator's power to require the production of and / or to search and seize documents. The general view is that legal professional privilege does not exempt a company from having to comply with a summons or order of court or police for the production of documents for the purposes of advancing criminal investigations. Protection is afforded against the production of such documents only in the prosecutorial process in criminal proceedings, provided legal professional privilege can be established.

Legal professional privilege in regulatory investigations by the antitrust authority

In the context of antitrust regulations, the Competition Commission of Singapore (CCS) has broad powers under the Competition Act (Cap. 50B) to require the production of documents and information where it has reasonable grounds for suspecting infringements of the Competition Act.

However, the investigative powers of the CCS are not without limits. Communications between a professional legal adviser and their client, and communications made in connection with, or in contemplation of, legal proceedings or for the purpose of such proceedings, are regarded as privileged (this was clarified in the 2007 publication, CCS Guidelines on the Powers of Investigation). In particular, section 66(3) of the Competition Act provides that the CCS cannot compel the disclosure by a lawyer of information containing privileged communications made by or to the lawyer. Lawyers may legitimately refuse to disclose such information, but are nevertheless obliged to provide the name and address (if known) of the person to whom, or by or on behalf of whom, that privileged communication was made. We understand that the power to require production of such details will generally be exercised only to test the document's claim to privilege protection.

Documents that a person is required to disclose under the Competition Act, which they have identified as potentially self-incriminating, also may not be used against them in criminal proceedings, other than proceedings under the Competition Act in respect of their failure to produce documents or wrongful destruction of documents. However, such documents are admissible in civil proceedings against them, whether or not those proceedings are brought under the Competition Act.

Last modified 15 Mar 2019

Slovak Republic

Slovak Republic

Legal professional privilege is not explicitly stipulated in the laws of the Slovak Republic. In general, the right to legal protection is stipulated in Article 47 of the Slovak Constitution (Act No. 460/1992 Coll.).

Act No. 586/2003 Coll. on advocates, as amended, stipulates that the advocate shall not reveal any information relating to the client’s representation and shall treat such information as strictly confidential. It should be noted that a violation of this obligation is not a criminal offence and is considered a professional misconduct, possibly leading to disciplinary sanctions. The duty of confidentiality of the advocate applies to all matters related to the performance of their function unless otherwise stipulated by relevant legal regulations. Legal professional privilege does however exist in the context of criminal investigations.

Legal professional privilege in the context of civil litigation

In the course of a civil proceeding, Act No. 160/2015 Coll. the Civil Dispute Procedure Code, as amended, guarantees that during the procedure of examining a witness in civil proceedings, the witness has the obligation to maintain confidentiality if such obligation follows from laws or is recognized by Slovak Republic.

Legal professional privilege in the context of criminal investigations

According to Act No. 300/2005 Coll. Criminal Code, as amended, it is a criminal offence if someone breaches the secret provided in a closed letter or other documents transferred via post, electronic communications or computers. It is also a criminal offence to breach the secret of any document, audio record, record of image or other record, or computer data, all maintained in privacy, in a way that it will be disclosed or accessed by a third person or otherwise used in such way that a person’s rights would be damaged in a severe way.

Furthermore, any communication between a client's and their defence counsel (ie the lawyer in criminal proceedings) is protected. Any information obtained from such communication may not be used for the purpose of a criminal proceeding and must be destroyed in the prescribed manner without undue delay.

Legal professional privilege in the context of investigations by the antitrust / competition authority

With regard to the execution of inspections by the Slovak Competition Authority, pursuant to Act No. 136/2001 Coll. Protection of Competition, as amended, the Authority is entitled to request from natural and legal persons any information and documents concerning an undertaking, as well as other information and documents necessary to the Authority’s activities. These persons are required to provide such information and documents to the Office without delay, unless this is contrary to special legislation (eg banking, tax legislation).

Last modified 15 Mar 2019

Slovenia

Slovenia

Legal professional privilege is not explicitly regulated in the Slovenian Criminal Procedure Act or the Bar Act. Both acts however set the general confidentiality obligation of lawyers towards clients and the possibility for exemption from testifying in court. Case law provides that records, documentation, files and other communication in connection with the preparation of pleading are part of the exemption from testifying in court. For reasons of completeness, it is also to be pointed out that the provisions of the Slovenian criminal procedure and of the Bar Act do not cover out-of-court relations, ie administrative proceedings, business relations, etc.

The legal professional privilege in competition cases is explicitly regulated in the Prevention of the Restriction of Competition Act (Zakon o preprečevanju omejevanja konkurence).

Last modified 28 Jul 2016

South Africa

South Africa

Legal professional privilege in South Africa consists of two components:

  1. Legal Advice Privilege: protects communications between legal advisers and their clients, provided that:
    • The legal adviser must have been acting in their professional capacity as a legal professional
    • The communication must have been made in confidence
    • The communication must have been made for the purpose of obtaining or giving legal advice, and
    • The advice should not have been sought for an unlawful purpose
  2. Litigation Privilege: protects communications between legal advisers and / or their clients on the one hand; and third parties on the other hand provided that:
    • The legal adviser must have been acting in their professional capacity as a legal professional
    • The communication must have been made in confidence
    • The communication must have been made for purposes of being placed before the legal adviser in order to enable them to advise
    • The communication must have been made for the purpose of intended or contemplated litigation, and
    • The communication / advice should not be for an unlawful purpose

The contents of privileged documents need not be disclosed; however, the existence of a privileged document must be disclosed.

No distinction is drawn between legal professional privilege in the context of litigation, criminal investigations and investigations by the competition authority, as long as either component referred to above is satisfied.

Furthermore, any communications that fall within the ambit of legal professional privilege remain protected during any investigations conducted by the South African Competition Commission pursuant to merger control. Where legal professional privilege is claimed during a search or investigation by the Competition Commission, the investigator may request, by order of the High Court of South Africa, that the allegedly privileged communications be attached and removed by the Sheriff of the High Court for safekeeping until that court determines whether or not the communications are in fact legally privileged.

Last modified 15 Mar 2019

South Korea

South Korea

There are no express provisions regarding attorney-client privilege in Korean law, including with regard to any definition, scope, or applicability.

However, under various laws, there are provisions relating to lawyers' obligations of confidentiality and the right to refuse to give testimony that may be detrimental to a client. Some practitioners therefore take the view that the concept of 'legal professional privilege' is recognised under Korean law as a by-product of those confidentiality obligations.

However, even under such interpretation, privilege would only be recognized as a by-product or derivative effect of the obligation of confidentiality, and therefore it would not be capable of being  directly invoked by the client. Moreover, in practice, there have been instances where investigative authorities have expressly refused to acknowledge that documents were covered by legal professional privilege.

There are suggestions that current laws may be amended, and a group of members of the National Assembly has recently introduced two separate bills concerning attorney-client privilege. These bills suggest amendments to the current 'Attorney-at-Law Act' to include a provision expressly granting the right to refuse disclosure of documents containing privileged communications between an attorney and their client, unless there is a special exception permitting disclosure or the client consents to its disclosure. Whether the proposed bills will be passed by the National Assembly and ultimately enacted is yet to be seen.

The following assumes that legal professional privilege exists in Korea as a by-product of the obligation of confidentiality affecting lawyers.

Legal professional confidentiality in South Korea is regarded as an essential element in establishing a sound lawyer-client relationship based on trust.

In order to facilitate lawyer-client communications, the client's confidences must be protected. Legal advice between lawyer and client is protected through (i) the constitutional right to assistance of counsel (Constitution of the Republic of Korea – Article 12(4)), (ii) the lawyer’s right to resist seizure of articles held in their custody in consequence of a mandate they have received in the course of their profession (Korean Criminal Procedure Act – Article 112), (iii) the lawyer’s right to refuse to testify in respect of secrets of other persons of which they obtained knowledge in consequence of a mandate they received in the course of their profession (Criminal Procedure Act – Article 149).

The Foreign Legal Consultant Act has codified the rule of confidentiality as applied to communications with non-national qualified lawyers.

Correspondence between in-house counsel and their clients is not expressly denied protection by legal professional confidentiality. In the case of in-house counsel, the existence of privilege is subject to stricter examination. In other words, one would have to consider that there is a strong opinion against protecting lawyer-client privilege between in-house counsel and the company because in-house counsel has a dual position as an employee and counsel at the same time.  

Overall, there is increasing demand for the scope of protection afforded by the principle of confidentiality to be broadened to cater for the growing diversity of legal professionals.

In South Korea, the rule of confidentiality for legal professionals is primarily set out in the form of a duty-violation which is punishable by law. Article 317 of the Criminal Act makes it a crime for a lawyer, someone in an assisting capacity, or any person formerly engaged in the profession to disclose another's secret which has come to their knowledge in the course of practice of their profession. The article stipulates that such disclosure shall be punishable by:

  • imprisonment or imprisonment without prison labour for not more than three years;
  • suspension of qualifications for not more than ten years; or
  • a fine not exceeding seven million KRW.

Under Article 26 of the Attorney-at-Law Act and Article 18 of the Korean Bar Association's Ethics Code for Lawyers, the duty of confidentiality is regarded as one of the most fundamental duties in shaping lawyer-client relationships.

The Korean Bar Association and the Ministry of Justice have each established their own Attorney Disciplinary Committees, in which disciplinary action may be taken against lawyers violating the applicable rules.

Legal professional 'confidentiality,' as discussed below, is set out in the Civil Procedure Act and the Criminal Procedure Act. The obligation of confidentiality is only subject to certain permitted exceptions including obtaining the client's consent or disclosure being necessitated by matters of public interest.

Legal professional confidentiality in the context of civil litigation

Article 315 of the Civil Procedure Act stipulates that 'a witness may refuse to testify if an attorney-at-law, patent attorney, ... or a holder of other post liable for keeping secrets under statutes, ... or a person who used to be in such post, is examined on matters falling under the secrets of their official functions.'

However, exceptions to the general rule above include situations where:

  • a public interest of grave importance is at stake;
  • the client has consented; or
  • a lawyer is defending their own rights.

Legal professional confidentiality in the context of criminal investigations

Pursuant to Article 112 of the Criminal Procedure Act, a person who is or was a licensed lawyer may resist seizure of articles entrusted to them by their clients on the basis that they are confidential.  Article 149 of the Criminal Procedure Act states that a lawyer may refuse to testify regarding a client's confidential information, where this was obtained in the course of performing their legal duties. Exceptions to the confidentiality obligation may apply if the client has consented, or if the matter is one of grave public concern.

Legal professional confidentiality in the context of investigations by the competition authority

If the case leads to an administrative lawsuit or a criminal lawsuit, legal professional confidentiality, as outlined above, will apply.  Otherwise, the general rules of confidentiality embodied in the Criminal Act and the Attorney-at-Law Act will apply. Article 50-2 of the Monopoly Regulation and Fair Trade Act requires public officials in charge of an investigation to conduct their investigations within applicable legislative limits in order to enforce the Act. Article 50-2 goes on to state that public officials are prohibited from abusing their investigative authority for any other purpose, etc. While this article may be open to interpretation, investigations carried out by the antitrust authority will be within necessary limits to prevent any hindrance to a lawyer's ability to exercise their duty of legal professional confidentiality.

Last modified 5 Aug 2019

Spain

Spain

Different general rules regarding professional confidentiality establish that all attorneys are subject to the duties of confidentiality and secrecy and, in the same way, documents and communications exchanged between lawyer and client are protected as well (Article 542.3 of the Judiciary Law, articles 32 and 42 of the General Regulation of the Legal Profession, the 'GRLP', (and Article 22 of the New General Regulation of the Legal Profession, now being processed in Parliament which, despite not having been implemented yet, contains extensive regulation on the professional privilege).

It is important to highlight that in the Spanish legal system there is no express regulation on 'privileged' documents or communications, but an obligation to keep professional secrecy, which consists in the guarantee to discuss freely with a lawyer the issues regarding to a legal case with no fear to any interference by the public authorities. Summarizing, the professional secret is a fundamental part of the right to defense that is guaranteed by the Constitution in Article 24 (judgment of the National Court of 26 September 2011).

In Spain, all the lawyers practicing their professional activity have the same rights and obligations, regardless of being in-house lawyers or external ones. In-house lawyers have an express recognition as a form of individual practice of the legal profession regulated by the same legal regulations that rules such profession (articles 27.3 and 4 of the GRLP), including among these regulations the professional secrecy.

Legal professional privilege in the context of civil litigation

From the civil perspective, there is national case law that states that a lawyer, in application of professional secrecy in cases where they have been involved, has the right not to stand as a witness in a trial and if a lawyer stands as a witness, they have the right to withhold confidential information belonging to their client (see judgments issued by the High Court of Baleares (Audiencia Provincial) number 18/2014 on 22 January and number 174/2017 on 15 June).

Judgment number 23/2013 issued by the High Court of Madrid (Audiencia Provincial) on 21 December established that any information or evidence obtained as a result of a breach of legal professional privilege is not valid in Court proceedings, on the basis that evidence or information obtained in this way is devoid of effect.

The judgment issued by the High Court of Madrid (Audiencia Provincial) on 27 October 2011 (judgment number 289/2011) however declares that a lawyer is not obliged to provide the information / documentation received from the client, in the case of preliminary proceedings in order to allow the plaintiff to obtain information necessary to prepare the case to be filed before the court.

Pre-trial discovery proceedings in Spain

Spain has recently incorporated pre-trial discovery into sections 283-bis(a) to 283-bis (k) of the Spanish Law on Civil Procedure (hereinafter, the "SLCP"), in line with the EU Damages Directive.

Section 283-bis(b) of the SLCP has incorporated the Damages Directive’s rules on access to confidential information. Evidence subject to legal privilege or professional secrecy is accordingly protected. Depending on the specific circumstances of each case, the Court may grant particular measures in order to protect the confidentiality of certain information (such as drafting a non-confidential version of a resolution redacting confidential information or restricting public access to hearings).

Section 283-bis(k) of the SLCP also sets out the consequences of non-compliance with obligations of confidentiality. The aggrieved party may request that the Court impose any of the following measures:

  • Dismissal of the legal action or evidence in question
  • Holding the person in breach liable for the damage caused by the disclosure; and
  • Payment of costs.

Depending on the specific circumstances of each case, the Court may impose a fine between 6,000 and 1,000,000 Euros on the person in breach.

Legal professional privilege in the context of criminal investigations

From the criminal perspective, professional secrecy between lawyer and defendant cannot be violated either by the parties or by the courts, public prosecutors or the police authorities. Furthermore, according to Article 199 of the Spanish Criminal Code, the unlawful disclosure of information by lawyers is a punishable act.

In addition, the lawyer must not declare against their client regarding the information entrusted to them as a result of their professional activity. It is expressly provided in Article 416.2 of the Spanish Criminal Procedure Act and supported by the case law of the Supreme Court (issued on 24 November 2015).

The case law of the Supreme Court as well as of the Constitutional Court (Tribunal Constitucional) states that the only valid interception of communications between lawyer and client during a criminal investigation is where there is some incriminating evidence against the defence lawyer (judgment of the Tribunal Constitucional number 183/1994, judgment of the Supreme Court of 6 March 1995).

Professional secrecy can be waived on an extraordinary basis when the lawyer exceeds their legal duty and willingly cooperates in criminal activities (see the judgment of the Supreme Court of 28 November 2001, number 2026/2001). Legal professional privilege in the context of investigations by the competition authority.

Legal Professional Privilege in the context of investigations by the competition authority

From a competition law point of view, the above considerations are also applicable. Notwithstanding it, the Court of Justice (Akzo judgment) has stated that internal company communications with in-house lawyers in European Commission investigations are not covered by legal professional privilege (see Scope with regard to the inspections carried out by the Spanish competition authorities under Spanish law).

Legal Professional Privilege in the context of merger control procedures

As is the case for merger control procedures before the European Commission, the Spanish competition authority is increasing the volume of documentation requested for the assessment of transactions. This is related to the sophistication and complexity of the transactions and the assessment methods in recent years as well as the markets in which the transactions take place.

Notwithstanding the above, to date there is no particular case law in Spain dealing with legal professional privilege in the context of merger control; privileged information receives similar treatment in the context of both sanctioning and merger control procedures.

Last modified 15 Mar 2019

Sweden

Sweden

Legal professional privilege in the Swedish legal system is regulated in the Swedish Procedural Code.

Chapter 36 Section 5 of the Swedish Procedural Code provides, with respect to testimony, that advocates (ie members of the Swedish Bar Association) and their associates may be heard as witnesses regarding matters which have been confided to them in their professional legal capacity or which they have learned of in connection therewith only if there is an obligation to do so pursuant to Swedish law or if the party, for whose benefit the confidentiality applies, provides its consent to the testimony.

The main derogation from this is where the criminal offence which the defendant is being tried for carries a minimum two years prison sentence.

With respect to documentation, Chapter 38 Section 2 provides a general obligation to provide any documentation which may be evidentiary. However, advocates and their associates or trial lawyers who are not advocates may not disclose documents (electronic or physical) if the contents thereof may be assumed to be such that advocates and their associates may not be called to testify regarding it pursuant to Chapter 36 Section 5 mentioned above. If the document is held in the possession of the defendant, to whom the benefit of the confidentiality applies, the defendant is not obligated to provide the document.

Thus, legal professional privilege does indeed exist also in the civil litigation context. It protects communications with advocates and trial attorneys (even if they are not advocates) but not with non-advocate lawyers, such as in-house counsel. Non-advocate lawyers may therefore be both obliged to testify to such matters and / or disclose such documentation which would otherwise have been protected if disclosed to an advocate. As mentioned above, however, advocates' legal privilege is not absolute and exceptions to this may be provided in Acts.

Legal professional privilege in competition law investigations

With respect to investigations under the Swedish Competition Act, the Swedish Competition Act provides in Chapter 5 Section 11 that the Competition Authority is not authorised to order a company or other entity / person or its advocate(s) to provide written information or documentation which is protected by legal professional privilege according to Chapter 36 Section 5 of the Swedish Procedural Code. With respect to on-site legal investigations, ie 'dawn raids', the Competition Authority may not review or take copies of information which is covered by legal professional privilege according to Chapter 36 Section 5 of the Swedish Procedural Code. Although this might not be an issue in practice it should be noted that the provision in Chapter 5, Section 11 explicitly only concerns written documents. Following this it is not clear how it would apply to electronically stored material and which can be read, listened to or otherwise perceived only by means of technical aids eg e-mails that have not been printed.

If the Competition Authority considers that a particular document should be covered by an investigation and the investigated party claims that the document is protected according to the legal professional privilege, the document shall immediately be sealed and promptly submitted to the Patent and Market Court by the Competition Authority. The Patent and Market Court shall without delay examine whether the document shall be covered by the investigation or if it is protected under the legal professional privilege and therefore excluded.

As regard testimony the legal professional privilege provided in Chapter 36 Section 5 of the Swedish Procedural Code for testimony applies also with respect to investigations by the Swedish Competition Authority. As mentioned above, the legal professional privilege provided therein is not absolute and derogations may be provided in Acts. However, the Swedish Competition Act does not provide for any such derogations.

Although not explicitly mentioned, if the Competition Authority orders a party to provide written information in a merger control procedure the same principles described above apply.

Last modified 15 Mar 2019

Switzerland

Switzerland

Legal professional privilege exists in Switzerland and emerges from a variety of sources, such as:

  • the contractual lawyer-client relationship imposes on a lawyer a duty of diligent and faithful performance of the business entrusted to him, which includes the obligation to treat the client’s affairs as confidential (Article 398 Code of Obligations, CO, SR 220).
  • the Federal Act on Lawyers (Bundesgesetz über die Freizügigkeit von Anwältinnen und Anwälten, BGFA, SR 935.61) provides that '[l]awyers are subject to professional secrecy without time limit and must keep confidential from all persons anything which they were entrusted with by virtue of their profession from a client. A release does not oblige them to surrender anything they were entrusted.' (Article 13(1) BGFA, unofficial translation).
  • the Swiss Criminal Code (SR 311, SCC) provides that '[...], lawyers, [...] who reveal a secret which they were entrusted with by virtue of their profession, or from which they have taken notice during the exercise thereof, shall, upon motion, be punished with imprisonment up to three years or pecuniary penalty.'(Article 321(1)).
  • the Federal Act on Civil Procedure (SR 272, FCP) and the Federal Act on Criminal Procedure (SR 312, FCrP) provide that certain professionals, among them registered lawyers, may refuse to testify or provide information and specify under which circumstances a party to a proceeding may be entitled to refuse testimony or to withhold documents.
  • the Federal Act on Administrative Procedure (SR 172.021, FAP), which governs, among other things, procedures pursuant to the Federal Law on Cartels (LCart, SR 251) to the extent that the LCart does not provide otherwise, makes reference to the Federal Act on Federal Civil Procedure (FFCP, SR 273) which states that persons mentioned in Article 321(1) SCC may refuse testimony (Article 42(1) (b) FFCP) and that the court may waive testimony by persons holding other professional or business secrets if there is a prevailing interest of confidentiality.

Last modified 20 Aug 2016

Thailand

Thailand

In Thailand, legal professional privilege does not operate only as a rule of evidence, but is a substantive right. This means that legal professional privilege can protect a lawyer from having to disclose the clients' confidential information or documents in a broad range of situations.

A lawyer has a duty not to disclose any information obtained from the client during the course of performing their duties as a lawyer in accordance with Clause 11 of Regulation on Lawyers Conduct B.E. 2529, which provides that a lawyer is required to keep any information obtained from the client confidential, unless they have obtained prior consent from the client or an authorization from the court to disclose such information.

Whether a Thai lawyer does or does not appear in court does not impact their duty to keep their client’s information confidential. In our view, it appears that Clause 11 does not impose the requirement of confidentiality and as such, it remains unclear whether or not communications already in the public domain ceased to be protected under legal professional privilege. Based on a strict reading of Clause 11, a communication between lawyer and client, whether or not confidential, will attract legal professional privilege.

This interpretation is in line with the fact that there are no express laws or regulations concerning the distinction between information received by a lawyer for the purpose of court proceedings and information received for some other purpose. It is not necessary that a lawyer receives information from their client for the purpose of court proceedings; any information concerning a client’s case is always considered confidential, including any information from sources other than from the client.  

The legal professional privilege is imposed by statues under Section 92 of the Thai Civil Procedure Code and Section 231 of the Thai Criminal Procedure Code, which divided legal professional privilege into two categories:

  • Legal professional privilege in civil litigation, and
  • Legal professional privilege in criminal litigation

Legal professional privilege in the context of civil litigation

Section 92 of the Thai Civil Procedure Code can be summarised as follows, when any party or person is legally required to give testimony or produce any kind of evidence before a Thai court and such testimony or evidence may disclose:

  • Any official document or fact which relates to the affairs of the State and is by nature to be temporarily or permanently kept secret and which is in the keeping of
  • Is known to such party or person by virtue of their official appointment or any other official or semi-official capacity
  • Any confidential document or fact which was entrusted or imparted by a party to them in their capacity as a lawyer, or
  • Any invention, design or other work protected from publicity by law, the said party or person is entitled to refuse to give such testimony or to produce such evidence unless they have obtained permission from the competent official or person concerned

Legal professional privilege in the context of criminal litigation

Section 231 of the Thai Criminal Procedure Code can be summarised as follows, when any party or person is legally required to give or produce before a Thai court any kind of:

  • Document or fact which is confidential official information
  • Confidential document or fact which has been acquired by or made known to them by virtue of their professional or duty, or
  • Process, design or other works protected from publicity by law, such party or person is entitled to refuse to give or produce such evidence unless they have obtained the permission from the authority or the person involved with such confidential information

However, under both Sections, the court has the power to summon the authority or persons concerned to appear before the court and give an explanation as to why legal professional privilege attach to the communication. The court may exercise such power in order to decide whether the non-disclosure is well-grounded or not. Where the court is satisfied that the refusal is not well-grounded, the court has the power to or such party or person to give such testimony or produce such evidence. This meant that the court could override the protection afforded by legal professional privilege.

Legal professional privilege in the context of investigations or merger control by the competition authority

Legal professional privilege does not exist in the context of investigations or merger control by the competition authority. Under Section 63 of the Thai Trade Competition Act B.E. 2560, the authority has the following powers:

  • To issue a subpoena for any person to give an oral presentation and provide factual information or provide an explanation in writing or to send accounts, registrations, documents or any evidence for examination or consideration
  • To enter places and venues of operation, production, sale, purchase, storage of goods, service provision of a business operator or any person, or other places where it is reasonable believed that there is a violation of provision under this Act in order to conduct an examination under this Act to search and seize, or gather documents, accounts, registration, or other evidence for the benefit of examination and proceeding with a case under this Act;

    In this case, the authority shall have the power to inquire into factual information or call for account, registrations, documents or other evidence from business operators or relevant persons, as well as instruct any person on the premises to act as necessary
  • To collect or bring goods in the required quantity as a sample for examination or analysis without paying for the goods. This shall be carried out in accordance with the criteria prescribed in the Commission's notification

However, according to Section 76 of the Trade Competition Act of Thailand B.E. 2560, facts given to the competition authority regarding the business or operation of a business operator that is factual information normally reserved and not revealed by a business operator, or known due to performance of duties under this Act will be kept confidential and not be disclosed unless the disclosure is made in the performance of official duties or for the purpose of investigation or trial. Any person who breaches this provision shall be subject to an imprisonment of not more than one year or a fine of not more than THB 100,000, or both.

Last modified 15 Mar 2019

Turkey

Turkey

There are no specific provisions regarding legal professional privilege under Turkish law. The Legal Profession Law and the Turkish Criminal Procedure Law provide some guidance as to the protection of confidential and privileged information.

First, the Legal Profession Law regulates a lawyer’s duty of confidentiality. Article 36 of the Legal Profession Law indicates that a lawyer is prohibited from disclosing information received from the client while performing their duties as a representative of the client and/or a member of the Turkish Bar Association. This provision regulates the general duty of confidentiality generally which exists also in the relevant laws of the other professions (ie doctors and certified public accountants).

Secondly, Article 130 of the Turkish Criminal Procedure Law titled 'The search and seizure in lawyers’ offices, and seizure of mail' directly regulates that: 'If the lawyer whose office is searched or the president of the Bar or the lawyer representing him objects to the search in respect of the items to be seized, at the end of the search, by alleging that those items are related to the professional relationship between the lawyer and his client, then those items shall be put in a separate envelope or a package and be sealed by the present individuals and, in the investigation phase, the judge of peace in criminal matters, or the judge or the Court in the prosecution phase, to give the necessary decision on this matter. If the judge establishes that the seized items are privileged by the lawyer client relationship, the seized object shall be promptly returned to the lawyer and the transcripts of the interactions shall be destroyed. The decisions mentioned in this subparagraph shall be issued within 24 hours.'

Under the above article, the lawyer is entitled not to permit the confiscation of a document relating to a client through claiming legal professional privilege. In such a situation, the document should be sealed in an envelope and the Court will decide if the claimed document is indeed protected by legal professional privilege. Legal professional privilege should be claimed directly by the lawyer.

Additionally, the Supreme Court accepted in one of its decisions (which is explained in detail below) the duty of confidentiality within the scope of Article 6/3 (c) of the European Convention on Human Rights.

Since the duty of confidentiality is considered as a public interest in Turkish law, it is applicable in all litigation and investigations, including competition investigations. Legal professional privilege as described above applies in civil litigation, criminal trials and competition investigations. Accordingly, the Turkish Competition Board acts in accordance with these general rules in the scope of its administrative procedures.

Last modified 21 Oct 2015

Ukraine

Ukraine

The principles and content of legal professional privilege in Ukraine are established by the Law of Ukraine 'On Advocacy and Legal Practice in Ukraine' No. 10424 dated 5 July 2012. Based on the legislation, the legal professional privilege (where it applies, as specified below) will exist in all types of legal proceedings (criminal, civil, competition, etc). The legislation does not distinguish between the types of legal proceedings to which legal professional privilege can apply. The Criminal Procedural Code of Ukraine contains a direct statement that a lawyer shall keep the information on the client (suspect, defendant) privileged.

Last modified 15 Mar 2019

United Arab Emirates

United Arab Emirates

By way of its constitution dated 2 December 1971, the UAE encompasses seven distinct emirates: Abu Dhabi; Dubai; Sharjah; Ras Al Khaimah; Ajman; Um Al Quwain; and Al Fujairah.

While the key tenets of the legal system of the UAE are based upon Shari’a law ("Islamic Religious Law"), much of the UAE's legislation derives from a mix of European (most notably French) and Islamic concepts of Civil Law, being based loosely on the Egyptian Legal Code.

Dual courts (both Shari’a and Civil) operate in the UAE each dealing with different areas of the law. In short, Shari’a courts are generally confined to social laws (such as family law) whereas commercial matters are generally now dealt with by the civil courts. In addition, a federal judicial system operates within the UAE, but certain Emirates (such as Dubai and Ras al Khaimah) have their own separate judicial frameworks, operating in parallel to the federal system.  

The Federal Supreme Council is the highest constitutional authority in the UAE and has overarching responsibility for initiating, sanctioning and promulgating federal legislation in the UAE.

In many civil law jurisdictions in the region, the concepts of legal professional privilege and "without prejudice" communications do not exist per se, and the parties have the right to use any document which may support their position in civil litigation. This is the position in the UAE, which does not have any express provision in respect of legal professional privilege. Instead, lawyer-client legal professional privilege is interpreted under Islamic Religious Law.

Indeed, lawyers in the UAE are bound by duties of confidentiality, which in many cases, incorporate concepts similar to legal professional privilege. 

Last modified 5 Aug 2019

United States

United States

Legal professional privilege in the US is embodied in rules of professional conduct for lawyers (lawyer-client confidentiality) and rules of evidence and procedure applicable in the courts (the attorney-client legal professional privilege and the work product doctrine).

While the American Bar Association has promulgated the Model Rules of Professional Conduct ('Model Rules'), each of the 50 states in the US has jurisdiction over the lawyers practising in that state and may have adopted rules with slight variations from the Model Rules. In addition, while there are Federal Rules of Evidence and Federal Rules of Civil Procedure applicable in federal courts throughout the US, each state has its own rules of evidence and procedure which may vary from their federal counterparts. This summary is based upon the Model Rules and the Federal Rules of Evidence and Civil Procedure, except with respect to the discussion of legal professional privilege as it applies to non-national lawyers set forth below.

Ethical duties in the US relating to attorney-client privilege and lawyer-client confidentiality have their roots in early English law. Their concepts are now embodied in Model Rule 1.6. Under the Federal Rules of Evidence, Rule 501, federal common law governs the attorney-client legal professional privilege and the work product doctrine unless the US Constitution, federal statutes or court rules provide otherwise. Legal professional privilege applies to civil matters, criminal matters and antitrust enforcement.

Last modified 15 Mar 2019

Legal professional privilege is derived from the common law and from legislation, such as the Evidence Act 1995 (Cth), at both a state and federal level. It is important to remember that legal professional privilege (which is often referred to as client privilege) is a fundamental right that vests in the client.

Confidential communications between a lawyer and their client, one or more lawyers acting for the client, or lawyers acting for the client and a third person (such as an expert witness) for the dominant purpose of providing legal advice or professional legal services in relation to a current or pending legal proceeding are protected by legal professional privilege.

Legal professional privilege also extends to confidential documents prepared for the purpose of giving or obtaining legal advice and for the purpose of a legal proceeding. Legal professional privilege may be abrogated by some common law exemptions and by the express and / or necessary implication of legislative provisions.

For example, if a client seeks legal advice in an attempt to further a crime or fraud, this advice and related communications will not be subject to legal professional privilege. Further, a claim of legal professional privilege is unlikely to be able to be maintained if it is being used to frustrate a process of law. Legal professional privilege applies in the context of criminal investigations and in the context of regulatory investigations by authorities such as the competition authority.

Legal professional privilege in the context of civil litigation

In the context of civil litigation, where the court may order documents to be produced during processes such as discovery, such orders will not require documents that are subject to a claim of legal professional privilege to be produced. However, the documents will need to be identified in a list of documents that is provided to the party seeking discovery.

What is protected by legal professional privilege?

Communications and / or documents must be confidential and have occurred or come into existence for the 'dominant purpose' of obtaining legal advice or in relation to actual or anticipated litigation in order to attract legal professional privilege.

The purpose for which a communication occurs or a document is brought into existence is a question of fact that must be determined objectively. Evidence of the intention of the document's creator, or of the person who authorised or procured it, is not necessarily conclusive.

'Dominant' has been held to mean a 'ruling, prevailing or most influential' purpose. In determining whether the dominant purpose exists, the courts will examine the circumstances of the case objectively, rather than considering the subjective view of the person making the communication.

Typically, legally privileged communications occur between a client and their legal adviser, but can include those between a client and a third party (eg consultant) where the client engages the third party to produce something (eg tax advice) for the purpose of obtaining legal advice.

If the dominant purpose test is met, legal professional privilege may extend to documents such as:

  • Notes, memoranda or other documents made by staff of the client, if those documents relate to information sought by the client's legal adviser to enable legal advice to be provided
  • A record or summary of legal advice, even if prepared by a non-lawyer, but not to the client's opinions on, or stemming from, the legal advice
  • Drafts, notes and other material brought into existence by the client for the purpose of communication to the lawyer, whether or not they are actually communicated to the lawyer, or
  • A lawyer's revisions of the client's draft correspondence

Are communications with in-house counsel protected by legal professional privilege?

In Australia, courts have considered whether in-house lawyers are protected by legal professional privilege by assessing whether they are acting in their capacity as a lawyer and have the requisite independence to provide unfettered advice.

To attract legal professional privilege, communications / documents must be made in a lawyer's capacity as a lawyer in order to provide the client with legal advice or for the purpose of actual or anticipated litigation.

Communications made by in-house lawyers who act beyond their role as a legal adviser (eg by weighing in on operational matters) will fall outside the scope of legal professional privilege. This is also the case if a communication or document is found to have been made for mixed purposes.

Exercising independent professional judgement is a key factor that will be considered in establishing whether in-house counsel is acting in the capacity of a lawyer. Claims for legal professional privilege have been rejected on the basis that in-house counsel have not acted at sufficient arm's length from their client, such as when documents are produced by in-house lawyers who are subject to the directions of their managers and therefore giving rise to the impression that they lack the necessary independence.

Legal professional privilege has also been denied in relation to communications where in-house lawyers have been involved in the commercial decision-making of a transaction.

Whether an in-house lawyer has a practising certificate has also been considered by courts in Australia when deciding whether legal professional privilege should apply to their advice. While failing to have a current practising certificate is not necessarily fatal to a claim of legal professional privilege, it may lead to a court inferring that the communications made and documents created by the in-house lawyer are not for the purpose of providing legal advice or for the purpose of litigation.

Does legal professional privilege apply to the correspondence of non-national qualified lawyers?

Legal professional privilege is available in relation to legal advice from foreign lawyers, provided that the 'dominant purpose' requirement is met.

How is legal professional privilege waived?

A client will be deemed to have waived legal professional privilege if the client acts in a way which is inconsistent with the confidentiality which the legal professional privilege is supposed to protect. Waiver of legal professional privilege may be implied in some circumstances.

It is important to maintain the confidentiality of communications and documents that legal professional privilege attaches to. Legal professional privilege has been deemed to be waived in circumstances where the substance, general essence or conclusion of legal advice has been communicated in a public forum such as a media statement, board papers that have been provided to third parties or during negotiations.

Legal professional privilege in the context of merger control

Under the Competition and Consumer Act 2010 (Cth), the Australian Competition and Consumer Commission (ACCC) has broad powers to compel the production of documents, including by way of subpoenas and search warrants.

The general principles of privilege (as outlined above) apply to competition or merger control in Australia, and in respect of enforcement action taken by the ACCC.

Whilst it is clear that documents subject to legal professional privilege are protected from compulsory disclosure and requests for production by regulators (such as the ACCC), it is often impossible to ascertain if documents are privileged if the production of the documents is required immediately. If that is the case, the person or company that is the subject of the immediate requirement to produce documents ought to identify the potentially privileged documents, and reserve the right to assert a claim of privilege. The potentially privileged documents should be produced separately, and in a sealed package, to the regulator. If agreement cannot be reached with the regulator as to whether the documents are privileged, the issue of privilege will be determined by the Court.

Typically, records of internal investigations will be privileged where they were generated for the purpose of providing legal advice on the subject matter of the investigation. On the other hand, records of a transaction will generally not be privileged, even if that transaction is later investigated.

Waiver of legal professional privilege

Recent cases have highlighted that parties and practitioners must take care to avoid the unintentional waiver of legal professional privilege. For example, in ASIC v Park Trent Properties Group Pty Ltd [2015] NSWSC 342, the Supreme Court of New South Wales held that the defendant had waived privilege over legal advice provided in the preparation of a compliance manual by voluntarily disclosing the manual to the Australian Securities and Investments Commission (ASIC). Key to the court’s finding was that:

  • The legal advice shaped the substance of the manual, and
  • The manual was deployed to obtain an advantage

This decision reaffirms that privilege can be waived by disclosing the effect of the legal advice, regardless of whether the advice itself is disclosed. Accordingly, it reminds parties to think twice before voluntarily disclosing compliance material that has been prepared by lawyers.

The Western Australian Supreme Court recently found that the privilege in lawyer-client emails may be waived if a third party is copied. In TEC Hedland Pty Ltd v. The Pilbara Infrastructure Pty Ltd [2018] WASC 300, the central issue was whether the maintenance of the privilege is inconsistent with the use of the relevant communication. TEC had agreed to supply electricity to Pilbara. B&V, the party copied into the emails between TEC and its lawyers, had been engaged to perform a test procedure. The test procedure was one of the issues in dispute. The court referred to the Full Federal Court decision of Bennett v Chief Executive Officer of the Australian Customs Service [2004] FCAFC 237 and endorsed the principle that:

'for a client to deploy the substance or effect of legal advice for forensic or commercial purposes is inconsistent with the maintenance of the confidentiality that attracts legal professional privilege'.

The court concluded that TEC had waived privilege over the emails with its lawyers by copying B&V. This case confirms the importance of ensuring only essential parties, and not third parties, are copied into privileged communications.

Illegality

The principle that legal professional privilege does not apply to communications made for improper and / or illegal purposes is well settled. The Federal Court has applied this principle in circumstances where the lawyers involved were not necessarily aware of the illegality. In Aucare Dairy Pty Ltd v Huang [2017] FCA 746, there was evidence to indicate that the defendant, Huang, had moved and / or placed ownership of assets of an insolvent company beyond the reach of Aucare, with whom the insolvent company had previously been in a failed joint venture with. The court found that Huang's lawyers knew and / or participated in the alleged fraud, despite the plaintiff not having suggested this and there being no direct evidence that this was the case. The court ordered production of privileged correspondence between Huang and her lawyers. This case emphasises that there is a risk that where there is evidence of illegality and / or improper purpose by a party, that party will not be entitled to legal professional privilege.

Directors

In Equititrust Ltd (in Liq) (Receivers appointed) (Receivers and Managers Appointed) v Equititrust Ltd (in Liq) (Receiver appointed) (Receivers and Managers Appointed) (No.3) [2016] FCA 738, the Federal Court held that a director may only claim privilege over documents containing legal advice if it relates in some way to the director in their personal capacity, and not merely to the operations of the company. A former director of Equititrust claimed privilege (both joint and common interest) over a range of documents produced by Equititrust that contained legal advice. The court held that only 11 of the 625 disputed documents were privileged. In relation to joint privilege, the court found that there was scarce evidence that the director had personal concerns in the matters raised by the documents disputed and clarified that: legal advice addressed to a director or 'the Directors' did not necessarily mean that the advice was provided on the basis of joint privilege; and the fact that a director was involved in procuring the legal advice did not on its own establish joint privilege. In relation to common interest privilege, the court highlighted that commonality of interest is a prerequisite for the privilege to apply – the mere fact that legal advice was communicated to Equititrust does not mean that its directors had a common interest privilege in that advice; and the fact that a company can only act though its directors does not give rise to a common interest. This case reminds directors of the need to clearly identify legal advice obtained in their personal capacity in order for it to be subject to privilege.

Trustees

In Hancock v Rinehart (Privilege) [2016] NSWSC 12, Gina Rinehart claimed privilege over documents produced by her former lawyer pursuant to a subpoena issued by her daughter, Bianca, as the new trustee of the Hope Margaret Hancock Trust (Gina was the former trustee). The Supreme Court of New South Wales found that there was no evidence to support Gina's claim of privilege. Gina had not adduced any evidence about the circumstances and purposes of the disputed documents, including whether the documents had been created for Gina in her capacity as trustee. The court noted that if the costs of obtaining legal advice are paid from the trust fund, the suggestion is that advice was obtained on behalf of the trust and not the trustee personally. This case reiterates the position that legal advice obtained by a trustee belongs to the trust and not the trustee personally.

Gowri Kangeson

Gowri Kangeson

Partner
[email protected]
T +61 39274 5428

Nicholas Tyacke

Nicholas Tyacke

Partner
[email protected]
T +61 9286 8502