Legal professional privilege

Communications between lawyers and clients are in principle protected by professional secrecy. Article 35 of the law of 10 August 2011 on the legal profession, as amended (loi modifiée du 10 août 1991 sur la profession d’avocat) (the 1991 Law), sets out the rules on professional secrecy.

The obligation of professional secrecy is also contained in the following: (i) the internal regulation of 9 January 2013 of the Luxembourg Bar, as amended (Règlement intérieur de l'Ordre des Avocats du Barreau de Luxembourg) (the Luxembourg Bar Regulation) and (ii) the internal regulation of 22 April 2005 of the Diekirch Bar, as amended (the Diekirch Bar 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.

Article 458 of the Criminal Code (Code pénal) provides that violation of professional secrecy may be subject to a jail sentence of eight days to six months and a fine of €500 to €5,000. The same provision 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.

Also, 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.

In addition to criminal sanctions, the lawyer may face (i) disciplinary sanctions, from the bar, ranging from a warning to a ban on practising the profession (ii) as well as being held contractually liable by the injured client.

Legal professional privilege in the context of civil litigation

Luxembourg courts may order the production of documents in civil and commercial matters. Where the document is held by a party to the proceedings, the relevant framework is article 288 New Civil Procedure Code (NCPC), read together with articles 284 and 285 NCPC; article 60 NCPC may also support an order to produce evidence. Where the document is held by a third party, article 284 NCPC is the more specific basis. Article 350 NCPC is relevant in a different setting, namely where a party seeks, before proceedings on the merits are commenced, an in futurum measure to preserve or establish evidence.

These procedural powers are, however, limited by legal professional secrecy. Under article 35 of the 1991 Law on the legal profession, read together with article 458 of the Criminal Code and the applicable bar rules, lawyers are bound by professional secrecy in respect of information relating to the client and the client’s affairs obtained in the exercise of their profession. It is therefore preferable not to state in absolute terms that a court may compel a lawyer involved in the proceedings to produce protected material. Any such request would have to be assessed in light of legal professional secrecy and the protection afforded to lawyer-client communications.

Where the lawyer is no longer acting and is approached as a third-party holder of documents, the analysis is more nuanced. The issue is then whether the conditions for third-party production are met and, if so, whether professional secrecy nevertheless prevents or restricts disclosure. A lawyer called as a witness likewise remains bound by professional secrecy and may disclose only within the limits permitted by the applicable legal framework.

Legal professional privilege in the context of criminal investigations

Legal professional privilege also applies in the context of criminal proceedings (see Scope of legal professional privilege).

A lawyer who is subject to criminal proceedings, may disclose information covered by professional secrecy only to the extent strictly necessary for her/his defence.

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 (Bâtonnier) or their representative may make observations regarding the preservation of professional secrecy to the investigative authorities and, in order not to be invalidated, all acts of seizure must record the presence of the Head of the Bar or their representative, or their having been called to attend.

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.

What is protected by legal professional privilege?

Professional secrecy applies to all information pertaining to the client and their affairs brought to the attention of the lawyer by their client, or of which the lawyer has gained knowledge through the exercise of their profession, whatever the source of the information. It applies also to all documents and information emanating from the lawyer advising, representing in court or assisting their client.

It covers all legal advice given to or intended for a client, all correspondence between the lawyer and their client as well as with other lawyers, notes of meetings and generally all information received by the lawyer in the exercise of their profession, the name of the client of the lawyer, the diary of the lawyer and the financial arrangements between the lawyer and their client.

Correspondence and discussions between lawyers are protected by professional secrecy, unless the correspondence:

• is marked as "official" and does not contain any information confidential by nature;
• comprises a formal and unconditional agreement between parties; or
• is not confidential by nature (letter sending a brief or asking for a document or a procedural act).

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

In the absence of any specific legislation recognizing legal professional privilege for in-house counsel and in view of the fact that the latter are bound by an employment contract with their employers, it may be expected that the advisory activity of in-house counsel is not protected by professional secrecy.

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

Lawyers should exercise caution when communicating with lawyers who are not subject to the rules of the Luxembourg Bar, as the rules governing legal professional privilege may vary from one country to another. At European level, the recommendations in article 5.3 of the CCBE Code of Conduct for European Lawyers should preferably be followed.

How is legal privilege waived?

Although the law requires a lawyer to keep confidential all matters entrusted to them by their client, the reverse is not necessarily true as nothing prevents the client from disclosing to third parties what they have disclosed to their lawyer (in other words, the client does not owe any obligations of confidentiality).

In some cases, the court has:

• set aside the minutes of an investigation initiated by an individual who was handing over correspondence between their lawyer and another lawyer; and
• denied the application of a lawyer to file a complaint against another lawyer on the basis of an alleged criminal offense committed by the latter which threatened their client.

Pursuant to the 2013 Regulation, a lawyer may disclose confidential information if:

• she/he determines that this disclosure is in the best interests of the client; and
• her/his client has authorized them to do so after having been duly informed of the nature of the information to be disclosed and the proposed recipients of the information.

There may also be situations where a 'state of necessity' or other principles take precedence over professional secrecy thereby releasing a lawyer from their obligations of legal professional privilege. An explicit reference to the 'state of necessity' was mentioned in earlier versions of the internal regulation, and may still be reflected in the regulation of the Diekirch Bar but it is generally considered that this principle remains even if not explicitly stated in the current Luxembourg Bar regulation.

Content to follow shortly.