Legal professional privilege

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 a) the legal advice shaped the substance of the manual, and b) 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 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.  

In the related case of TEC Hedland Pty Ltd v The Pilbara Infrastructure Pty Ltd [2020] WASC 364, a recent case involving the same parties, the Supreme Court of Western Australia ruled a novel point not previously considered by the courts.  The case involved the question of whether an email seeking legal advice that was sent to 10 recipients, only one of whom was a lawyer, would be protected by legal professional privilege.  The Court held that, unless the dominant purpose of the communication is to settle instructions to the lawyer, only the copy of the email that is sent to the lawyer will be privileged.  If the dominant purpose of the email was to obtain commercial views rather than legal advice, the communication would not be privileged.

Another recent case that considered waiver of privilege in the context of a regulatory investigation is Commonwealth Director of Public Prosecutions v Citigroup Global Markets Australia Pty Ltd [2021] FCA 511.  This case involved a prosecution of cartel conduct offences, following an investigation by the ACCC into an institutional share placement undertaken by various financial institutions.  JP Morgan Australia (JP Morgan) had been granted conditional immunity from civil and criminal action in relation to the ACCC’s investigation.  One of the conditions was that JP Morgan “provide full, frank and truthful disclosure and cooperation to the ACCC and withhold nothing of relevance.”  JP Morgan later produced redacted copies of various documents to the ACCC, and asserted privilege over the redacted portions.  The ACCC pressed for unredacted copies by way of a subpoena and, eventually, the parties agreed that JP Morgan would give partial disclosure to the prosecutor by reading aloud the portions of redacted documents.  JP Morgan who maintained a claim of privilege in the document read out to the ACCC agreed to the partial disclosure because it thought it would risk losing its immunity by not complying with the subpoena.  However, the Federal Court ultimately found that the partial disclosure consisted a waiver of any privilege that JP Morgan had over the documents at the time they were created. 

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 his/her 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.  It is also important to remember that a director cannot assert legal privilege on behalf of a company once the company is in liquidation.

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.

Even though the issue of (the lack of) legal professional privilege in Austrian antitrust and competition law has been a matter of discussion for many years, the Austrian legislator did not choose to introduce legal professional privilege in Austrian antitrust and competition law with the recent amendments to the Austrian Cartel Act, which entered into force in 2013.

There do not appear to be any recent cases or other legal developments in Bahrain regarding legal professional privilege.

The following three leading cases have confirmed the important role of legal professional privilege in Belgium:

Belgian Court of Cassation, 19 October 2021

The Belgian Court of Cassation annulled a decision of the Antwerp Court of Appeal convicting a defendant based on the content of a conversation this defendant had with the lawyer of a co-defendant. The Court of Cassation considered the content of this communication to be covered by legal professional privilege and held that the Court of Appeal should have verified whether the irregularity committed (i.e. unlawfully produced evidence) had affected the reliability of the evidence, or whether its use is not contrary to the right to a fair trial.

Belgian Constitutional Court, 24 September 2020, case n° 114/2020

The Constitutional Court ruled on 24 September 2020 on the appeal for partial annulment of the law of 18 September 2017 on the prevention of money laundering and the financing of terrorist activities. The Court found that a lawyer cannot be obliged to send a report of suspicions to the CTIF (Cellule de traitement des informations financières / Financial Information Processing Unit) when his client, on his advice, withdraws from a suspicious transaction, nor can a third party to the relationship of trust between the lawyer and his client, even if he is a lawyer, be allowed to communicate information covered by professional secrecy to the CTIF.

Court of Justice of the European Union, request for a preliminary ruling from the Belgian Constitutional Court (Case C-694/20)

In December 2020, the Constitutional Court referred a preliminary question to the Court of Justice of the European Union (CJEU) in relation to the DAC 6 rules (i.e. Directive (EU) 2018/822 of 25 May 2018 imposing reporting obligations on lawyers and their clients or tax purposes). DAC 6 requires that intermediaries, who are exempted from reporting on the basis of legal professional privilege, notify other intermediaries. The preliminary question submitted relates to a possible violation of the right to a fair trial and the right to privacy by DAC 6, which imposes an obligation on lawyers to share with another intermediary who is not the lawyer’s client the information which becomes known to the lawyer in the course of the exercise of essential professional legal activities, namely the defence or representation of the client in court and legal advice, even outside legal proceedings. At the time of writing, the case was pending before the CJEU.

No details for this country.

No details for this country.

Court practice on legal professional privilege in Bulgaria is quite rare OR infrequent. This topic has not been subject to any thorough theoretical research, either. As to the trends in legislation, the latest amendments to the Bar Act were promulgated in State Gazette, no 97 of 7 December 2012. They introduce clearer and more detailed rules on the practising of the profession of a qualified lawyer in Bulgaria of foreign citizens of another EU Member State, of a state party to the EEA Agreement or of Switzerland, and who are qualified for practising a lawyer’s profession in one or more of those countries. In this regard, those changes broaden the scope of legal professional privilege protection covering the activity of the said professionals.

IGGillis Holdings Inc v Canada (National Revenue) 2018 FCA 51

The Federal Court of Appeal affirmed the existence of common interest privilege among parties to a commercial transaction. IGGillis entered into a corporate transaction with Abacus. The lawyer for Abacus prepared a memo outlining the tax implications of the transaction. The Abacus memo was shared with IGGillis. The Canada Revenue Agency ('CRA') required IGGillis to produce the memo. IGGillis and Abacus opposed the production of the memo on the basis of common interest privilege.

The Federal Court of Appeal affirmed that the Abacus memo was protected from production based on common interest privilege. Where legal opinions are shared by parties with mutual interests in commercial transactions, there is a sufficient interest in common to extend the common interest privilege to disclosure of opinions obtained by one of them to the others within the group, even in circumstances where no litigation is in existence or contemplated.

Common interest privilege is not a stand-alone ground for claiming privilege but rather is a defence to a claim that solicitor-client privilege was waived. An application for leave to appeal to the Supreme Court of Canada was dismissed.

Alberta v Suncor Energy, 2017 ABCA 221 - privilege and internal investigations

There was an employee death at one of Suncor’s worksites. Suncor initiated an internal investigation and claimed privilege over all information pertinent to its investigation. The Alberta government challenged Suncor’s blanket claim of privilege. The Alberta Court of Appeal limited Suncor’s blanket claim of privilege and held that the privilege claims over the documents collected during Suncor’s investigation must be considered on a case-by-case or category basis. The Supreme Court of Canada dismissed an application for leave to appeal.

Minister of National Revenue v Duncan Thompson, 2016 SCC 21.

The Canada Revenue Agency (CRA) sought access to a lawyer’s accounts receivable. The lawyer was in arrears of taxes. The lawyer provided the balance owing on the accounts receivable but no further information. The Supreme Court of Canada (SCC) held that the CRA was not allowed to access the lawyer’s accounts receivable because it was not the intention of the legislature for this type of information to be disclosed. The SCC reiterated that privilege belongs to the client and can only be waived by the client. The CRA was trying to gain access to information in the lawyer’s possession without notice to the client, and no opportunity for the client to challenge the release of privileged information.

Alberta (Information and Privacy Commissioner) v. University of Calgary, 2016 SCC 53.

This case involved a wrongful dismissal action against the University by a former employee. During the course of the litigation, the former employee made an access to information request under the province’s Freedom of Information and Protection of Privacy Act. The University refused to release certain information on the basis it was privileged. The Alberta Privacy Commissioner ordered production of the privileged material in order to determine whether privilege was properly asserted. The Supreme Court of Canada (SCC) set aside the Privacy Commissioner’s order for production of privileged material.

The SCC noted that solicitor-client privilege is not merely a privilege of the law of evidence, but a substantive right that is fundamental to the proper functioning of the legal system. The SCC found that the Alberta privacy legislation did not abrogate the substantive right to solicitor-client privilege. To give effect to solicitor-client privilege as a fundamental policy of the law, legislative language purporting to abrogate it, set it aside or infringe it must be interpreted restrictively and must demonstrate a clear and unambiguous legislative intent to do so.

Confidential and privileged information in Chilean competition law

The consolidated text of Decree Law No. 211 ("DL 211") sets out the legal framework for competition regulation which applies in Chile. It contains provisions regarding the treatment of privileged and confidential information in investigations and procedures carried out by the Fiscalía Nacional Económica (National Economic Prosecutor or “FNE”). The scope of legal professional privilege is not defined by DL 211, therefore the general principles applied by the PEC extend to competition investigations and procedures.

The FNE has the power to request information from parties when carrying out an investigation, which includes any investigation that is opened during a merger control procedure. Parties are obliged to provide such information and can be sanctioned if they fail to do so, unless they submit a formal application to withhold disclosure on the basis that sharing such information may cause harm to their interests or those of third parties.

• Confidentiality and/or privilege in respect of information and/or documents are determined by the FNE, pursuant to a request of the interested party or ex officio, on a case-by-case basis;
• In general terms, the FNE considers whether the information in question has the potential to affect the competitive development of the markets in order to assess whether it is confidential. The FNE has interpreted this criterion extensively throughout investigations, in order to avoid acting as an information facilitator to competitors;
• The obligation to maintain confidentiality extends to prosecutors, employees and any other person who renders services to the FNE;
• The burden of providing public (redacted) versions for the public file lies with the party that is seeking to protect confidentiality. Information can only be redacted if it is confidential.
• In principle  parties can withhold information when it is protected by legal privilege. Normally the FNE will assess whether the information is privileged.

Legal professional privilege in merger control procedures

Due to the absence of specific legal rules governing legal professional privilege in the context of competition procedures and merger control in Chile, the general provisions of the PEC are applicable to such cases.

In this regard, a lawyer has a duty of confidentiality in respect of all information provided by a client in the context of a professional relationship. This duty commences when any person becomes a client by expressing a serious intention to obtain professional services, and the lawyer expressly or tacitly consents to providing such services. This legal professional privilege extends to potential clients.

Generally, all communications and documents that involve legal advice sent to or from counsel are subject to legal professional privilege. This implies that correspondence between a client and an external lawyer, internal notes reflecting external legal advice and legal advice (even when not related to competition proceedings) are subject to legal professional privilege.

In conclusion, lawyers in Chile are subject to a strict duty of confidentiality, which extends to the application of legal professional privilege. Due to the absence of specific legal rules governing legal professional privilege in the context of competition procedures and merger control in Chile, the general provisions of the PEC are applicable to such cases. This is particularly relevant considering that merger control procedures tend to involve requests for detailed and sensitive information, which will always remain confidential from third parties and competitors (where it adversely affects the party’s competitive position) even where it is not subject to legal professional privilege.

Recent cases and/or other legal developments in Chile

On May 8, 2013, case N° 4380-12, the Supreme Court of Chile accepted a Complaint Appeal (a special disciplinary remedy against judges for faults or serious abuse committed in the exercise of their duties) filed by the State Defence Council, “CDE” (an autonomous body that is in charge of defending the interests of the Chilean State), against a decision of the Santiago Court of Appeals, upholding a decision from the “Council for Transparency” (an autonomous body that is in charge of supervising and resolving any complaint for denial of access to public information), which required the CDE to exhibit all documents, reports and communications in its own files which were being used to prepare the defence of the Chilean government in a lawsuit brought against it.

The CDE argued that lawyers cannot be forced to disclose information that they have acquired in the exercise of their profession and that the CDE maintains a relationship with the State that is akin to a lawyer-client relationship, to which the duty of confidentiality attaches.

The Supreme Court accepted this argument and allowed the appeal, declaring that the files were subject to professional secrecy and therefore protected from disclosure.

From the perspective of Chilean Competition Law, on March 18, 2021, in the context of a cartel case (Role C-386-2019), the TDLC resolved that communications between the main executives of a Company and their in-house lawyer were not subject to legal professional privilege and the transcript of such conversations could be included in the investigation file of the FNE.

Not applicable.

In 2018, a defendant claimed that there had been a breach of legal privilege because his lawyer (LMP) submitted a letter to the Attorney General containing the defendant’s threat to kill an Attorney who had previously represented him before the Municipal Criminal Court.

The defendant filed an appeal with the Municipal Criminal Court in which he requested the exclusion of a copy of the subject letter as illegal evidence because the copy of the letter was obtained by revealing a lawyer's secret.

The court rejected the defendant's appeal and ruled that the case did not constitute unlawful evidence because everyone is obliged to report a criminal offence of which they are aware, including lawyers. Furthermore, at the time the defendant sent her the letter, counsel LMP was representing the defendant before the court in the civil proceedings and was not his defence counsel in the criminal proceedings. Accordingly, she was relieved of her duty to testify about everything she discovered in the course of her representation of the defendant in civil proceedings. However, a lawyer has the option to waive the right to be relieved of its duty to testify, and giving such waiver, the lawyer would be entitled to testify about the respective information.

Accordingly, the court found that the LMP had the right to pass on her knowledge about a criminal offence to others, including the competent Attorney General.

No details for this country.

We are aware of one case heard by the authorities, namely the Billa – Meinl case (decision of the Supreme Administrative Court file no. 5 Afs 95/2007). This case involved legal professional privilege in its purest form, ie communication between an undertaking (subject to investigation by the national competition authority) and its external counsel (registered as a Czech lawyer) relating to a particular competition matter. The national competition authority took possession of documentation during a dawn raid, but immediately returned it and excluded it for the purpose of subsequent fact finding. The Supreme Administrative Court, hearing an administrative action against the decision of the national competition authority, confirmed, in obiter dictum to its judgment, the existence of legal professional privilege in this respect. The Court stated that legal professional privilege forms a part of the undertaking's right to legal protection and that the authority having become acquainted with the content of a document protected by legal professional privilege might violate that right.

Legal professional privilege in the context of merger control

Under Czech law, there is no specific regime in place relating to the application of legal professional privilege in merger control procedures (ie there are no specific guidelines issued by the Czech Antimonopoly Office or any relevant case law on the point). Instead, the general principles relating to the protection of communications between a lawyer and a client apply (for example as applied in the context of dawn raids as explained above). In the case of multinational mergers, the relevant EU rules apply (see the EU chapter regarding legal professional privilege).

However, according to the Supreme Administration Court, the fact that the administrative body is familiar with the contents of the correspondence between a lawyer and a client and that this correspondence was seized during an on-the-spot inspection is not automatically considered to breach the right to legal protection. While investigating whether the right to legal protection was breached, the particular circumstances of the case had to be balanced, namely:

• under what circumstances the administrative body became familiar with the contents of the confidential correspondence which activity or inactivity of the undertaking under investigation took place when marking the documentation as confidential; and
• whether the contents of the correspondence were confidential (ie between a client and a lawyer) and whether the correspondence was marked as confidential

Nevertheless, this is being considered as an error of the proceedings, but it shall require further inquiry to determine whether the error is critical or crucial or significant and whether it had any impact upon the lawfulness of the decision of the Office. The error will be considered as critical or crucial or significant when the familiarisation with the correspondence between a lawyer and a client constituted such a breach of right to legal protection that it fundamentally impacted the investigation and decision making of the Office.

There is no case law on legal professional privilege in Denmark. The latest legal development is the DCCA’s dawn raid guidelines from 2016, in which the authority recognizes the concept of legal professional privilege and establishes a framework for dealing with disputes regarding legal professional privilege. The guidelines are expected to be revised in 2021.

There do not appear to be any recent cases or other legal developments in Egypt regarding legal professional privilege.

In February 2017, the Law Society of England and Wales published a new guidance note on Legal Professional Privilege which was developed in consultation with the Law Society's LPP working group and reflects the Law Society's view of good practice in the area.

In Director of the Serious Fraud Office v Eurasian Natural Resources Corp Ltd (see footnote 1), the Court of Appeal overturned a controversial first instance decision relating to the scope of litigation privilege, particularly in the context of criminal investigations. The Court of Appeal held that, on the facts of the case, litigation privilege did apply to certain categories of documents including notes of interviews with employees and former employees, and the work product of forensic accountants. The judge at first instance had concluded that documents brought into being for the purposes of avoiding litigation (in this case, by self-reporting the matter to the Serious Fraud Office) could not be privileged. However, this was squarely rejected by the Court of Appeal, and the judgment has established that documents brought into existence for the dominant purpose of not only defending, but also resisting or avoiding reasonably contemplated criminal proceedings, will be protected by litigation privilege.

Of further interest is that the Court indicated that it did not agree with a previous decision (which was binding on it, but which had been widely criticised) which restricts who the 'client' is for the purposes of legal advice privilege to the employees tasked with seeking advice on behalf of the company. The Court indicated that it would prefer to expand this narrow view of the client to take account of modern multinational companies in which many employees may be required to interact with the company's lawyers.

In Sotheby's v Mark Weiss Ltd (see footnote 2), the High Court held that communications between a lawyer and a client with two purposes 'of equal importance and relevance' would not satisfy the dominant purpose test used to establish litigation privilege. In this case, the claimant commissioned a series of reports to inform certain commercial decisions and legal decisions. However, the High Court held that neither the commercial nor the legal angle could be determined as the dominant purpose of consequent communications about the reports between the company and its lawyers. The High Court also confirmed that even if litigation is the 'inevitable' consequence of taking a particular commercial decision, it must be shown that the dominant purpose of documents produced for making that decision is necessarily their use in the contemplated litigation.

In WH Holding v E20 Stadium LLP (see footnote 3) , the Court of Appeal confirmed that 'conducting litigation' (being one of the necessary elements comprising the test of litigation privilege) includes taking steps to avoid or settle litigation. However, to be covered by litigation privilege, the communications must have been made for the dominant purpose of obtaining advice or evidence in relation to the conduct of that litigation, rather than 'conducting litigation' in a broad sense. The Court of Appeal rejected the attempt to extend the scope of litigation privilege to cover purely commercial discussions, maintaining that the disputed documents (being emails between board members discussing a commercial proposal for the settlement of a dispute), were not covered by litigation privilege. The Court of Appeal did accept that litigation privilege could apply if advice or information obtained for the sole or dominant purpose of conducting litigation cannot be 'disentangled' from a broader document, or if it would otherwise reveal the nature of such advice or information.

Footnote 1: [2018] EWCA Civ 2006
Footnote 2: [2018] EWHC 3179 (Comm)
Footnote 3: [2018] EWCA Civ 2652

Tallinn Circuit Court ordered[1] that for legal privilege to be applicable, there does not necessarily have to be a contract between the attorney and the client. It is sufficient if the attorney has provided any legal services to the client.

In the context of criminal investigations, the Supreme Court of Estonia,[2] held that the court has the competence to decide whether data gathered through wire-tapping or covert observation is protected by legal professional privilege, and consequently, assess the admissibility of the use of such information as evidence in criminal proceedings.

The Supreme Court of Estonia,[3] clarified that the protection of legal professional privilege is essential in assessing the admissibility of a search of a law office. The need to protect legal privilege justifies a higher standard of procedural requirements when searching a law office. Therefore, law offices may be searched only if there is a judgment of a court to that effect. For example, one justification for the search of a law office would be the justified suspicion of a criminal offence. On a related subject, the European Court of Human Rights[4] found that the regulatory framework regarding  the search of a law office in Estonia did not provide sufficient procedural guarantees. The ECHR stated that there are no precise regulations governing the search of an attorney’s data media outside the law office (e.g. their home and vehicle), although such an obligation may be indirectly derived from the Estonian Bar Association Act. The main complaint concerned the protection of legal professional privilege, whereas the issue of differentiation of digital data media is particularly complex, for example, how the information is selected from existing materials. In this respect, the current regulation in Estonia is insufficient. At present, there is no publicly available information on whether any legislative changes are expected on this issue.

Regarding waiver of legal professional privilege, the Tallinn Administrative Court[5] held, that legal privilege is a statutory right which is intended to protect the client's interests in confidentiality of the information disclosed to the lawyer, not the attorney’s interest in the confidentiality of the legal service provided to the client. Therefore, attorneys cannot insist that clients disclose (or not disclose) information relating to the provision of legal services.

Footnotes

[1] Judgment 1-18-7408
[2] Judgment 3-1-1-64-13
[3] Judgment 3-19-467
[4] Särgava vs. Eesti (698/19)
[5] Judgment 3-19-2304 

How to proceed when EU legal professional privilege is disputed during a dawn raid conducted by the European Commission investigating possible breaches of EU competition law?

The European Commission's powers in investigating anti-competitive behaviour include the power to conduct dawn raids to examine and copy books and other records found at the premises. Documents protected by EU legal professional privilege are an exemption to the European Commission's powers.

In the course of a dawn raid, if a document is protected by EU legal professional privilege, the person claiming EU legal professional privilege protection should give the European Commission's inspectors a cursory look at the headings of the document to demonstrate that the document is indeed protected by EU legal professional privilege. The person is entitled to refuse to allow the European Commission's inspectors to take a cursory look where the person believes a cursory look is impossible without revealing the content of the documents, and provides the European Commission's inspectors with appropriate reasons for this belief.

Where the protection of EU legal professional privilege is disputed during a dawn raid by the inspectors of the European Commission, the following procedure is to be followed:

1. The disputed document is placed in a sealed envelope.
2. The European Commission's inspectors may remove the sealed envelope from the premises.
3. If the matter cannot be resolved directly with the European Commission, the person claiming EU legal privilege protection may ask the Hearing Officer to examine the claims of EU legal professional privilege. The Hearing Officer may inspect the document and will communicate their preliminary view and take appropriate steps to propose a mutually acceptable decision.
4. Where no resolution is reached, the Hearing Officer will formulate a reasoned recommendation and deliver it to the European Commission, which is not binding on the European Commission but which the European Commission will examine.
5. The European Commission then takes a decision on whether or not to grant EU legal professional privilege protection to the document. The person claiming EU legal professional privilege may apply to the General Court of the EU to annul a negative decision by the European Commission.
6. The European Commission will not look at the document before the deadline for seeking annulment of the decision by the General Court of the EU has passed, or, if seeking annulment, before the annulment proceedings are closed.

Companies should exercise caution when making claims of EU legal professional privilege, as unwarranted and deceitful claims are prohibited and may be punishable by a fine.

Exchange of information within the European Competition Network

The European Competition Network consists of the European Commission and the national competition authorities of the 28 EU Member States, and allows them to cooperate on competition matters. The members of the European Competition Network have the power to exchange and use information collected for the purpose of applying EU competition law, including confidential information. National competition authorities may use information exchanged within the European Competition Network in order to enforce EU law, or to enforce their national competition law when it is applied in parallel with EU law and does not lead to a different outcome.

This has implications on the treatment of legal professional privilege. A national competition authority in one Member State (eg the UK) is able to obtain a document from an authority in another EU Member State which is subject to more relaxed legal professional privilege rules (eg Germany). A national competition authority, in this case, is thus able to obtain and use documents even if they were collected under rules which are less protective than its own. Companies, particularly large multinationals, must therefore ensure they have adequate and efficient policies to ensure that legal professional privilege protection is most effectively used.

Private damages actions for breaches of EU competition law

Natural and legal persons that have suffered damage due to breaches of EU competition law have a right to obtain damages from those found to have breached EU competition law. Private damages actions are brought in national courts of EU Member States. In order to increase the possibility of bringing private damages actions for breaches of EU competition law, an EU Directive has been adopted. The Directive requires all EU Member States to allow for courts to impose disclosure obligations in private damages actions for breaches of EU competition law. As regards such disclosure, the Directive requires EU Member States to 'ensure that national courts give full effect to applicable legal professional privilege under (European] Union or national law when ordering the disclosure of evidence'. It remains to be seen how EU Member States will implement that provision and when the EU or national legal professional privilege regime will apply in private damages actions for breaches of competition law. EU Member States have until approximately December 2016 to implement the Directive.

Legal professional privilege in the context of merger control

Due to rapid technological development in the past few years, the merger control landscape has made room for complex highly technical mergers. A lack of understanding of certain sectors or the level of complexity of some transactions can create uncertainty as to the potential theory of harm put forward by a competition authority.

This lack of understanding around new sectors has in turn led to substantial requests for information from competition authorities. In the past, the number of requested documents from the Commission were of several hundred, whereas now the number has increased to several hundred thousand. The Commission relies heavily on internal documents to assess the markets and the strategy of the parties involved.

Deadlines might not be proportionate to the volume and complexity of the information requested. Responding to an RFI that corresponds to thousands of documents requires having access to resources that some respondents might not have access to. Considering the above, it is evident that an undertaking that wishes to make any claims of legal privilege will be in a difficult position. Therefore, the excessive amount of information requested by the Commission effectively undermines the concept of legal professional privilege. However, the Commission may decide to stop the clock in merger control proceedings until the request for internal documents has been complied with, so as to avoid the withholding of internal documents by merging parties.

Evidently, legal professional privilege plays a more significant role in complex merger cases than it used to.

Legal professional privilege has not been clearly defined within the context of merger control. EU case law on legal professional privilege relates to cartel proceedings and there is no EU case law on merger cases so far. Nevertheless, legal professional privilege has been recognized as a fundamental right and therefore it cannot be disregarded within the context of merger control proceedings. Furthermore, the EU's submission to the OECD paper (mentioned in the 'scope' section above) put forward that the Commission typically applies the same principles derived from the existing case law also in merger control proceedings.

Given that there is lack of jurisprudence for legal professional privilege in the context of merger control, we would have to look at the past behaviour of the Commission which indicates a narrow interpretation of the EU case law relating to legal professional privilege. In practice, case teams can be more flexible in light of the increased volume of documents . This does not preclude the Commission from examining legal professional privilege claims more closely nowadays. Claims of legal professional privilege claims add a significant administrative burden of work on the parties. Legal professional privilege claims are submitted in privilege logs, which must set out the reason why a document or part of it is protected by legal professional privilege.

There are two practical aspects that need to be considered having to do with responsive documents covered by legal professional privilege and responsive documents covered by legal professional privilege rules of a third country.

Responsive documents covered by the EU legal professional privilege rules

Written communications emanating from an independent EU qualified lawyer to their client within the context of a merger control proceeding are protected by legal professional privilege. Communications that are not related to competition law proceedings, eg communications in relation to other areas of law such as employment or tax, are not covered by legal professional privilege. Additionally, communications dated before the competition law proceedings might be considered not to be covered by  legal professional privilege, given that they are not connected to the proceedings.

Company documents that reflect the legal advice obtained by external counsel are covered by legal professional privilege. However, it is quite common for company documents containing legal advice to also deal with other non-legal issues as well. In such cases, the documents will be partially redacted.

Responsive documents covered by third country legal professional privilege rules

When legal advice is being obtained by external counsel that are not EU qualified, this advice is not covered by EU legal professional privilege rules. The issue becomes more complex for transactions that have an international dimension, in which multiple competition authorities investigate a transaction.

It is quite common that authorities will ask for confidentiality waivers from the parties, in order to be able to exchange information with other competition authorities. If that is the case, the different ways in which legal professional privilege rules around the world apply can become problematic, given that some are less strict than others. Where this is the case, a document obtained by one competition authority can be disclosed to another competition authority, which the latter would not normally have access to under the legal professional privilege laws of its jurisdiction. In that regard, it is quite common that documents requested by the Commission are covered by US legal professional privilege but not EU legal professional privilege (eg in-house counsel communications), which can amount to a waiver of US legal professional privilege.

Below we set out some examples of communications and documents, and their respective treatment from the Commission in relation to legal professional privilege.

• Correspondence between client and external lawyer: Correspondence that emanates from an external legal counsel to the client is covered by legal privilege. However, the same does not necessarily apply for correspondence from the client to the external legal counsel. Such correspondence would have to be justified in the privilege log.
• Internal notes reflecting external legal advice: In Hilti the Court found that 'internal notes which are confined to reporting the text or content of those communications' with an independent lawyer containing legal advice are covered by legal professional privilege. The Commission sometimes interprets the reading of Hilti very narrowly as to consider only documents containing exclusively legal advice to be protected by legal professional privilege. However, the key message from Hilti is that the content of legal advice needs to be protected irrespective of the form of the communication that contains it. In practice, the Commission will ask for a partial redaction of documents that are partially covered by legal professional privilege.
• Legal advice not related to competition proceedings: The decisional practice in cartel cases indicates that legal professional privilege covers written communications between the client and their lawyer, after the initiation of a proceeding, and it can also extend to earlier communications if there is a link with the subject matter of the proceeding. Within the context of merger control, earlier communications between a lawyer and their client are protected by legal professional privilege if there is a link with the subject matter of the proceeding for a specific transaction. Legal advice that refers to alternative transactions would therefore not be covered by legal professional privilege.
• Correspondence with economists: legal professional privilege is limited to communications with lawyers. There is no EU case law dealing with communications with economists in merger cases. Moreover, the Best Practices Notice of the Commission clearly indicates that legal professional privilege does not extend to other professions, therefore it would be hard to make a legal professional privilege claim for correspondence with economists. However, advice obtained from economists, but vetted through an external lawyer, would likely be covered by legal professional privilege. The content of the correspondence with economists could be incorporated within the legal advice obtained by an external lawyer, which is evidently covered by legal professional privilege.

In a nutshell, legal professional privilege in merger control proceedings has acquired a new importance. It is imperative that companies have set up beforehand adequate mechanisms to respond to potential document requests from competition authorities in order to ensure that legal professional privilege in documents or communications is not undermined by the vast number of documents requested. In addition, even in circumstances where legal professional privilege would normally not be applicable, there might be ways to prevent documents from being disclosed. Communications emanating from EU qualified external lawyers are presumably covered by legal professional privilege. By incorporating within these communications information obtained by other professionals, there is the potential to extend the application of legal professional privilege to advice obtained from other professionals. However, this requires that no communications take place directly between the undertaking and the other professionals.

In terms of legislative changes, the Finnish provisions regarding production of evidence were reformed during 2014 and 2015. Most importantly the amendments (which entered into force in the beginning of 2016), extended the prohibition on advocates and licensed legal counsel giving testimony. 

The Finnish Parliament approved a government bill implementing the European Union (EU) Directive on the mandatory disclosure and exchange of cross-border tax arrangements (referred to as DAC6 or the Directive) on 16 December 2019. The legislation entered into force on 1 January 2020 and is effective from 1 July 2020. The final Finnish legislation exempts certain intermediaries (attorneys, public legal aid counsels and licensed legal counsels) from applicable reporting obligations on the basis of legal professional privilege. However, the exemption only applies to certain categories of information, and intermediaries must comply with the requirements on reportable arrangements in respect of non-exempt information. Intermediaries that are exempt from reporting due to legal professional privilege are also required to inform other intermediaries or relevant taxpayers of their obligations to report.

There have been two recent Supreme Administrative Court decisions of significance. As noted above (see Legal professional privilege in the context of investigations by the antitrust / competition authority), the Supreme Administrative Court confirmed in its ruling KHO:2019:98 that in an unclear situation the undertaking’s right of defence should be interpreted in a broad manner. The FCCA had attached an e-mail chain from the undertaking responding to the FCCA’s penalty payment proposal, and one of the emails referred to a legal recommendation issued by a law firm. The message also contained a statement from a company representative regarding the recommendation. The e-mail had been forwarded both within the undertaking and to an external party. Despite the fact that the legal recommendation given by external legal counsel to the undertaking (with the purpose of using its right of defence) was forwarded to a third party, the Court concluded that it was protected by legal professional privilege. 

Another recent ruling by the Supreme Administrative Court (KHO:2019:83) concerns legal professional privilege in the context of state-owned companies. Despite the importance placed on right of access to documents, the Court concluded that the National Audit Office of Finland could refuse to grant access to an audit memorandum concerning a state-owned company to the extent that it contained business secrets. The memorandum contained information on assessments and views given by attorneys acting as the company’s legal advisers. The Court considered these parts of the memorandum to be covered by legal professional privilege under section 5c of the Advocates Act as the company had not waived its privilege. Therefore, the information also constituted a business secret under section 23 subsection 1 paragraph 20 of the Act on the Openness of Government Activities and access could be refused.

The French Cour de Cassation has held that a seizure of documents en masse is valid despite the fact that it includes legally privileged documents (27/11/2013; 12-80336). However, the Court has also held that documents covered by professional secrecy must be returned (24/04/2013; 12-80336).

No details for this country.

'Jonas Day'-Decision of the German Constitutional Court on attorney-client privilege in internal investigations, dated 6 July 2018

The attorney-client privilege in Germany follows different concepts than in the US or the UK. The current legislation and jurisprudence regarding information and documents derived from internal investigations is ambiguous. The German Constitutional Court decided on 6 July 2018 on the seizure of documents at the office of Jones Day in Munich in connection with the Diesel-investigation of Volkswagen and its subsidiaries.

The Constitutional Court decided that in the case at hand the seizure of the documents did not violate constitutional rights of Volkswagen and allowed the review of the seized investigation documents. Further, the Constitutional Court pointed out that Jones Day, as non- EU based law firm cannot rely on constitutional protections regarding seizure of documents. On the other hand, the Constitutional Court ruled that a legal entity can rely on seizure protection even if the entity is not yet under investigation as long as the internal investigation is for concrete defence purposes which has to be decided on a case to case basis.

Based on the legislation and jurisprudence so far the following principles apply:

• Defence correspondence and defence documents and any work products of an internal investigation conducted by outside counsel, eg protocols of witness interviews, summary of results of review of documents, legal assessments, are privileged under German law and may not be seized.
• This applies also in case that the corporation is not yet formally investigated, but the internal investigation conducted by outside counsel serves the purpose to prepare the potential up-coming defence of the corporation (if this is the case has to be decided on a case to case basis).
• The results of an internal investigation conducted by in-house counsel or auditors is not protected, the authorities may seize these documents.
• If the internal investigation serves other purposes than the defence of the corporation, eg the preparation of claims against or the defence against claims of third parties, assessment of claims against (former) board members or to inform regulators abroad, it may be disputed whether a general attorney-client privilege applies to these documents.

Therefore, we made the following conclusions from the decision of the Constitutional Court:

• In the engagement letter it should be clearly stated to what extent the investigation is conducted for defence purposes and in the context of a corporate structure who the client is.
• The investigation should be performed by EU based law firms and by specialized corporate defence counsels.
• Those defence documents should be marked as such and be stored in custody of the mandated law firm.
• Documents and work products for other purposes, eg for remedial actions, civil litigation or for disclosure to foreign authorities, should be separated from purely defence documents.
• Those other purposes should also be clearly stated in the engagement letter in order to try to claim attorney-client privilege based on the relationship of trust.

The Law 3213/2003, as amended, on the obligations of particular categories of persons to submit to the tax authorities statements of origin of their ownership of assets (the doctrine of 'pothen eshes' – 'where from') provides for important exceptions to the protection of legal privilege (see above). By reference to the legislation on money laundering (the provisions of which are adopted), lawyers are obliged to inform the competent committees of any violation of the law on 'where from' and breach of such obligation constitutes a criminal offence (imprisonment of up to two years). According to the preamble of L. 4065/2012, 'any professional privilege is inflected and no obligations of confidentiality apply as against any person obliged to submit a statement of 'where from''.

It should also be noted that the law provides that in case a lawyer has to testify against their client, permission of the relevant Bar Association is required. The relevant jurisprudence refers to matrimonial matters, wills and child support, rather than corporate matters, and the permission is usually denied.

On 29 June 2015, the Hong Kong Court of Appeal in Citic Pacific Limited v Secretary for Justice & Commissioner of Police [2015] 4 HKLRD 20 (the “Citic Decision”), rejected the restrictive definition of “client” in the context of legal advice privilege taken by the English Court of Appeal in Three Rivers District Council v Governor and Company of the Bank of England (No. 5) [2003] QB 1556.  In Three Rivers (No. 5), the English Court of Appeal ruled that the “client” means the person or persons authorized by a corporation to seek and obtain advice from its legal advisers and therefore confidential internal communications within a corporation created with a view to putting the information before the legal advisers do not attract legal advice privilege.

The Hong Kong Court of Appeal did not follow the decision of the English Court of Appeal in Three Rivers (No. 5) and decided that a more liberal approach should be adopted. In essence, the Hong Kong Court of Appeal ruled that the client is simply the corporation and its employees should be regarded as being authorised to act for it in the process of obtaining legal advice. Therefore, legal advice privilege should not only be limited to communications passing between the client and its legal advisers, but should also cover a wider range of communications, including documents generated during the information gathering process.

The Hong Kong Court of Appeal found that a narrow definition of "client" would basically frustrate the rationale behind legal professional privilege, which is to give effective and meaningful protection for confidentiality whilst clients obtain legal advice in any context. The Hong Kong Court of Appeal further held that the "dominant purpose" test is more appropriate in setting proper limits for legal advice privilege, is consistent with authorities and rationale of legal professional privilege, and should therefore be the test to be adopted in Hong Kong.

On 5 September 2018, the UK Court of Appeal in Director of the Serious Fraud Office v Eurasian Natural Resources Corp Ltd [2018] EWCA Civ 2006 made specific reference to the Citic Decision to note that Three Rivers (No 5) is an outdated decision that fails to reflect the nature of modern day multinational corporations.

Since the UK Court of Appeal decision in Director of the Serious Fraud Office v Eurasian Natural Resources Corp Ltd, there have been a number of new decisions related to legal professional privilege made by the UK courts e.g. in Civil Aviation Authority v R Jet2.com Ltd [2020], the UK Court of Appeal held that actions such as copying lawyers into an email chain is insufficient to claim legal professional privilege as parties need to expressly claim legal professional privilege for the relevant communications.   Although these new cases are not strictly binding on Hong Kong courts, they are persuasive authorities which the Hong Kong courts will take into account if similar issues arise before the Hong Kong courts.

No details for this country.

No details for this country.

Defender Ltd v HSBC [2018] IEHC 587, High Court, Twomey J, 15 October 2018

Whether privilege can be claimed over witness statements which have been delivered to the opposing party is a question that was considered by the Irish High Court in Defender Ltd v HSBC.

In summary, the position in Ireland is that a witness statement does not lose its status as a privileged document once it is served and that privilege is preserved until the witness statement is "adopted by the witness or otherwise put into the public arena."

The plaintiff, Defender Limited (Defender), invested with Bernard L Madoff Investment Securities LLC (Madoff) and suffered losses when Madoff’s investment business was exposed as having operated the world’s largest Ponzi scheme. Defender then issued proceedings against HSBC in its capacity as Defender’s custodian, claiming negligence and breach of contract.

During the course of the proceedings, Defender sought copies of witness statements that had been delivered by HSBC in two separate sets of proceedings which Defender was not involved in. Both sets of proceedings involved funds (Thema and Primeo respectively) that alleged negligence against HSBC following the exposure of Madoff’s fraud. The Thema proceedings were heard by the Irish High Court. The proceedings settled after 17 days and therefore not all of the witness statements sought were adopted in Court. The Primeo proceedings, however, were heard in full by the High Court of the Cayman Islands. HSBC claimed privilege in respect of the witness statements sought.

The High Court held that the witness statements delivered in the Primeo proceedings had lost their privilege during the course of the trial as they had been adopted in open court by the relevant witnesses. The High Court ordered that the Primeo witness statements be made available to Defender on discovery.

In relation to the Thema witness statements, a question arose as to whether privilege is lost when a witness statement is delivered to the opposing party but not adopted in open court. The High Court noted that there are policy reasons for preserving the privileged status of witness statements and emphasised in particular the importance of frank and honest witness statements to encourage settlement between the parties and the benefits of retaining privilege over witness statements until "the last minute". The High Court held that a witness statement does not lose its status as a privileged document once it is served and that privilege is preserved until the witness statement is "adopted by the witness or otherwise put into the public arena."

As the concept of "once privileged, always privileged" does not exist in respect of litigation privilege in Ireland, and the privilege ends when the proceedings end unless another set of proceedings is considered to be sufficiently closely related in order to allow the privilege to continue, the High Court also considered whether the Thema and Primeo proceedings were sufficiently closely related to the Defender proceedings. The High Court held that, while the overlap of parties involved in the various sets of proceedings was relevant, more significantly, the subject matter of all three cases are closely connected, since they involve claims by three different funds against a HSBC company that, inter alia, the HSBC entity was negligent in relation to its alleged use of a Bernie Madoff company as a sub-custodian for the assets of the funds.

The High Court therefore found that, to the extent that privilege exists in the witness statements, that privilege would "prevent the discovery of those documents to Defender, because although the Thema and Primeo Cases have finished, they are closely connected with the Defender Case."

There do not appear to be any recent cases and other legal developments in Israel regarding legal professional privilege.

The Supreme Administrative Court has held that legal professional privilege does not apply to internal notes of the company (see Supreme Administrative Court, 24 June 2010, No. 4016). In that regard, the ICA has held that it is not relevant that the external lawyer participated in a meeting during which a certain document was shown or discussed, since the mere fact that the contents of a certain document have been discussed with an external lawyer does not automatically make that document subject to  legal professional privilege (see ICA, decision of 22 December 2020, case PS11517 – MYWORLD-LYCONET-CASHBACK).

With Legislative Decree No. 3 of 19 January 2017 Italy implemented EU Directive 2014/104/EU of 26 November 2014, according to which:

'Member States shall ensure that national courts give full effect to applicable legal professional privilege under the Union or national law when ordering the disclosure of evidence'.

As provided by Art. 3 of Legislative Decree No. 3 of 19 January 2017:

'In the actions for damages for infringements of the competition law provisions, upon receipt of a party's reasoned request,[…] the judge can order the parties or a third party to disclose relevant available evidence in accordance with the provisions of this Chapter. […] This is without prejudice to the confidentiality of communications between lawyers in charge of a party's representation and the client itself'.

Law No. 31 of 12 April 2019, entered into force on 19 May 2021, reformed Italian rules on class actions, entrusting the judge with a similar power to order the disclosure of relevant evidence available to the defendant. Also in the context of class actions proceedings it is provided that 'This is without prejudice to the confidentiality of communications between lawyers in charge of a party's representation and the client itself' (see new Article 840-quinquies of the Italian Civil Procedure Code).

In Japan, there is a Legal Apprentice (Shihou-Shuushuu-Sei) programme which is a national legal training system for lawyers, judges and prosecutors who have passed the Bar exam. All legal apprentices study legal practice for one year under the supervision of experienced judges, prosecutors and lawyers. Under the rules regarding Legal Apprentices formulated by the Supreme Court (Article 3), legal apprentices are also obliged to hold in confidence information that they have come to know while acting as an apprentice.

There do not appear to be any recent cases or other legal developments in the State of Kuwait regarding legal professional privilege.

Decision of the Department of Criminal Cases of the Senate of the Republic of Latvia of 29 September 2020 in case no. SKK-97/2020

An advocate who provided legal assistance to the victim testified in criminal proceedings about the unlawful activities of the accused. The accused argued that the testimony could not be used as evidence because it is prohibited to interrogate an advocate as a witness regarding facts that have become known to them while providing legal assistance. However, the Supreme Court did not agree with this because the purpose of the professional secrecy obligation is to protect the client’s information which has become known during the provision of legal assistance. In this case, the advocate was authorised to file an application to the police on behalf of their client regarding the accused’s unlawful activities. Thus, the advocate, when giving testimony in criminal proceedings, acted with the consent and in the interests of the victim. Therefore, such testimony must be recognised as admissible and usable evidence.

Decision of December 17, 2020, of the European Court of Human Rights (ECHR) in the case Močuļskis v. Latvia (Application no. 71064/12)

The applicant complained that, during a search of his residence, police officers had seized the his computer, which contained information about his clients, to whom he had provided legal assistance as an advocate.

The ECHR noted that in other countries, independent observers are required to be present who can, independently of the investigators, identify material covered by the advocate’s professional secrecy. Latvian law contains no such requirement. It is possible that in the specific criminal proceedings the investigator could invite a representative of the Latvian Council of Sworn Advocates as an “independent observer.”

The ECHR found a violation of Article 8 of the European Convention on Human Rights. It concluded that the applicant did not have the opportunity to ensure the protection of advocate-client correspondence and other privileged information, and that the applicant had been denied access to all private information on his computer for an indefinite period.

There do not appear to be any recent cases or other legal developments in Lebanon regarding legal professional privilege.

In the most recent case, the Supreme Administrative Court of Lithuania rejected the appeal of a company and left unchanged the ruling of the court of the first instance declaring that the Lithuanian competition authority was right in not applying the protection of legal professional privilege to correspondence between two companies and their lawyer and not removing this information from the case material of an investigation. It was stated that the lawyer holds a significant number of shares of the companies, participates in their activities by voting at the shareholders’ meetings, and therefore may affect important decisions on the economic commercial activity of the companies and form its strategy. The relationship between the company and the lawyer could not be considered unconditionally independent. Accordingly, it was ruled that the competition authority acted lawfully when it did not apply the legal guarantee laid down in the Law on the Bar to correspondence, and such measure is reasonable, essential and necessary in a democratic society and proportionate to the attainment of the objective pursued. Administrative case No. eA-3015-629/2021.

In the same process, it was ruled that the legal guarantee laid down in the Law on the Bar Association is not absolute and may be limited where it is legitimate and strictly necessary in a democratic society. The Court stated that it should always be assessed whether there was a sufficiently justified and proportionate and legitimate aim in restricting the guarantee. Administrative case No. eA-2145-556/2020.

The Supreme Administrative Court of Lithuania also provided clarification on the information constituting a lawyer's professional secrecy. The Inspectorate requested information on whether the complainant, I. B, had contacted the office regarding the investigation of its activities in obtaining and processing her data; if such information had been provided, indication of when, how and what information was provided; and if it was not provided, why not. It requested certified copies of the documents confirming the facts of the complainant's application and any reply. Paragraph 5 of Article 46 of the Law on Advocacy stipulates that a lawyer's professional secret consists of the fact of contacting a lawyer, the terms of the contract with the client, the information and data provided by the client, the nature of the consultation and the data collected by the lawyer. Such information that the managing partner of the law firm could provide to the Inspectorate would be, for example, a copy of the agreement with the State Enterprise Centre of Registers. Thus, the managing partner of the law firm was able to answer some of the Inspectorate's requests (regarding that part of the information that did not constitute a lawyer's secret) without commenting on the activities of another lawyer. Administrative case No. A-47-822/2018.

No details for this country.

No details for this country.

In October 2021, the Malaysian Court of Appeal affirmed the High Court’s decision in an action brought by the Malaysian Bar Council against the Inland Revenue Board of Malaysia (IRB). The Malaysian Bar Council sought certain declarations to prevent the IRB from conducting raids on law firms in order to audit client accounts and access accounting books and records pertaining to client accounts.

The Court of Appeal held that the client accounts, and information related to the client accounts, are protected under Section 126 of the Evidence Act i.e. subject to legal professional privilege. The Court of Appeal further held that privilege is absolute and may only be waived by the privilege holder. The Malaysian Court of Appeal’s decision is currently the subject of an appeal to Malaysia’s Federal Court.

In Hon. Joe Mizzi v. The Office for Competition (Onorevoli Joe Mizzi v. Ufficju ghall-Kompetizzjoni), decided by the Competition and Consumer Appeals Tribunal in 2013, the juxtaposition of national rules and the special rules relating to antitrust and competition proceedings was considered.

The Office for Competition ('Office') opposed a demand for the production of documents in the file held by the Office concerning a decision made by the Office. The tribunal referred to rule 9 of the Rules of Procedure contained in the Malta Competition and Consumer Affairs Authority Act relative to the Competition and Consumer Appeals Tribunal.

Rule 9 states: 'In the interpretation of this Act, the Appeals Tribunal shall have recourse to the judgements of the Court of Justice of the European Union, and to relevant decisions and statements of the European Commission, including interpretative notices on the relevant provisions of the TFEU and secondary legislation relative to competition and may also refer to its previous decisions'.

The tribunal took the view that it should first look to national law to resolve issues that may arise during the proceedings, and it is in the absence of a provision of national law or in the absence of clarity that the tribunal must have recourse to the provisions of rule 9.

The tribunal stated that the Malta Competition and Consumer Affairs Authority Act is a special law, and where this special law does not specify otherwise, the European Union sources referred to in rule 9 should be applied. The tribunal specifically included European Commission rules relating to Commission proceedings as applicable European Union sources. The tribunal stated that the Rules of Procedure contained in the Maltese Code of Civil Procedure, qua general law, gives the tribunal discretionary powers in the interests of justice, but this discretion must be used most restrictively.

In this particular case, the tribunal held that national law was silent as to whether the file of the Office could or should be produced in the proceedings. The documents in the file that were instrumental in arriving at the Office’s decision had in fact already been produced. The documents demanded in these proceedings were not so instrumental, and therefore the tribunal held that it should follow the European Union regulatory norm, and the circumstances did not warrant the use of the discretion given to the tribunal by general law to compel the Office to produce the documents.

The applicability of EU competition procedural rules to local competition proceedings was confirmed in Liquigas Malta Limited vs Office for Competition decided by the Competition and Consumer Appeals Tribunal on 14 April 2015. The reference was to competition procedural rules in general, which are likely to include those relating to legal professional privilege.

There are no significant court precedents regarding legal professional privilege. The two most relevant establish that:

• Persons with privileged information may only disclose it in civil or criminal procedures with the consent of the client.
• The authorisation made by litigation counsel to third parties to review the file of a procedure does not constitute a violation of the professional secrecy obligation.
• The recently enacted Mexican Anti-Money Laundering Law and its Regulation establish the obligation to file reports with the Mexican Tax System Administration detailing specific information of certain transactions carried out by lawyers advising their clients. Such reporting obligation is considered an exception to legal professional privilege.

Commentary on the law n°43-05

The anti-money laundering law n°43-05 brought important exceptions to the legal professional privilege as it imposes a declaration of suspicion to lawyers when they receive from their clients information which may lead them to think that their client may be found guilty of anti-money laundering.

Furthermore, the lawyers cannot invoke the legal professional privilege to refuse to communicate information to the administrative or judicial authorities investigating about cases of anti-money laundering.

By judgement of 15 March 2013 (ECLI:NL:HR:2013:BY6101), the Dutch Supreme Court (Hoge Raad) confirmed the legal professional privilege for in-house lawyers who are admitted to the Bar and comply with requirements guaranteeing their independence. This principle therefore applies in the Netherlands with regard to all fields of law, except in the event of an investigation in the Netherlands by the European Commission.

By judgements of 26 January 2016 (ECLI:NL:HR:2016:110) and 6 June 2017 (ECLI:NL:HR:2017:1018), the Dutch Supreme Court confirmed that when a lawyer is copied in on an email or is requested to be present at a meeting with the apparent sole purpose of bringing the contents of that email or meeting within the scope of legal privilege, the lawyer is not acting “in his capacity as a lawyer” and cannot invoke the protections of legal professional privilege.

By judgement of 7 October 2019 (ECLI:NL:RBROT:2019:7856) the Rotterdam District Court clarified the position of external lawyers and in-house counsel admitted to a foreign Bar. The Rotterdam District Court further clarified the position of foreign in-house counsel admitted to a foreign Bar by judgement of 28 January 2021 (ECLI:NL:RBROT:2021:527).

Law Commission review and recommendations

There have been no recent changes to the Evidence Act 2006 and the Law Commission's most recent report on the Evidence Act (from March 2019) concluded that no amendments to the sections relating to privilege were necessary.

Recent case law of interest

NZ Iron Sands v Toward Industries Limited [2019] NZAR 1199

The High Court considered a challenge to a privilege/confidentiality claim under rule 8.15/8.25 of the High Court Rules.

The Court held that:

• Where in-house counsel have multiple duties, whether or not privilege attaches to any particular document depends on the nature of the relationship, the subject matter of the advice and the circumstances in which the advice was rendered.
• Privilege does not attach to a document sent to the legal advisers if that document was not prepared for the purpose of seeking advice or preparing for the litigation.
• A document containing both privileged and non-privileged material should be disclosed with the privileged material redacted.  If redaction is not possible, the whole document may be treated as privileged.
• Where a claim of privilege is challenged, another judicial officer not connected with the case should inspect the documents.

Minister of Education v Carter Holt Harvey Ltd [2020] NZHC 1539

The High Court considered in detail claims about mis-classification of privileged documents and held that there would need to be cogent evidence of a system error in the party's approach to privilege to justify an independent review of every document over which privilege has been claimed.

Primero Maritime Ltd v Southern Spars Ltd [2019]

The Court held that:

• The provisions of the Evidence Act replicate the common law test for litigation privilege.
• Questions of whether litigation was reasonably apprehended at the time the statements were prepared and as to whether they were prepared for the dominant purpose of such litigation have to be determined on the basis of evidence, with both limbs of the test having to be satisfied before litigation privilege attaches.
• Whether or not litigation was reasonably apprehended is a question of fact, importing an objective element; the question is whether a reasonable person in the position of the party in question, and possessed of the same information at that time, would have regarded the future commencement of litigation as probable.
• Where the party claiming litigation privilege is a corporate entity, if an individual with influence in that party’s decision to litigate has formed a view as to the likelihood of litigation, that will be a critical fact from which an objective observer would almost certainly infer that litigation was probable. 

Miah v AMP Life Ltd [2018] NZHC 1964

The Court refused to uphold a claim for privilege in relation to documents relating to work carried out by in-house lawyers, because the party had not produced evidence that the in-house lawyers in question held current practicing certificates.

Historically, there is a debate between the National Authority for Investigation and Prosecution of Economic and Environmental Crime ('Økokrim') and the Norwegian Bar Association on the privilege of lawyer / client information. Økokrim has been arguing that legal professional privilege is an obstacle to its work against white collar crime, and has been asking for new regulations to limit legal professional privilege. The Norwegian Bar Association has, on its part, been clear about the importance of trust and confidentiality in the lawyer / client relationship and that lawyer / client legal privilege is a fundamental part of this.

This debate culminated in the mandating of a task force to propose legislative changes in relation to legal professional privilege in general. The proposal for the new legislation was published by the Norwegian Government on 11 June 2021 (see footnote 1). In general, the proposal only contains minor changes compared to the current applicable law. For instance, it is proposed that information received by a lawyer whilst acting in another capacity should be covered by the legal professional privilege.  

In December 2010, the Supreme Court concluded that information regarding money transfers as part of the lawyer's legal practice, as well as the client's identity in a specific instruction for legal advice, was privileged information (see footnote 2). This view was further sustained by a High Court ruling in 2011. In 2012, the Supreme Court stated that even when a lawyer is subject to bankruptcy proceedings, information on names of clients and on money transfers between lawyer and client will be subject to legal professional privilege, and supersede any duty of disclosure unless  otherwise provided by a clear statutory provision (see footnote 3). The Supreme Court has assumed that the lawyer can, without prejudice to the duty of confidentiality, recover outstanding fees, even if such action results in the client relationship being disclosed (see footnote 4).

In 2013, the Supreme Court concluded that evidence in the form of email correspondence will be considered privileged information if it is sent as a copy to the lawyer, regardless of whether the lawyer has had access to its content (see footnote 5). However, taxation and VAT legislation was retrospectively amended so that a lawyer is required, regardless of legal professional privilege, to give transaction data, and balance and debt information (including in relation to the parties to the transaction), to the government. The Supreme Court has also found that email correspondence between a tax payer and their lawyer is exempt from review by the Tax Authorities without further examination (see footnote 6). In 2018, the Supreme Court also rejected Økokrim's request for access to a lawyer's time sheets (see footnote 7). In addition, the Supreme Court clarified the duty to produce legally privileged material (in this case a lawyer's annual accounts) in a redacted version as evidence in a law suit (see footnote 8). In 2019, the Supreme Court concluded that written testimonies drawn up by a lawyer is covered by the legal professional privilege (see footnote 10). 

Footnote 1: Prop. 214 L (2020–2021)
Footnote 2: Rt-2010-1638
Footnote 3: HR-2012-00788-A
Footnote 4: Rt-2012-608
Footnote 5: Rt-2013-1336
Footnote 6: HR-2017-467-A
Footnote 7: Rt-2018-109
Footnote 8: HR-2018-2403-A
Footnote 9: HR-2019-2168-U

There do not appear to be any recent cases or other legal developments in the Sultanate of Oman regarding legal professional privilege.

On the basis of the latest amendment to the Polish Criminal Procedure, evidence that is obtained illegally by authorities can be used in criminal cases. It is likely that this change may have a negative impact on legal professional privilege protection.

As of 1 Jan 2019, the very recent amendment of Polish tax law pertaining Mandatory Disclosure Rules entered into force. The Act transposes the Council of the European Union (EU) Directive 2018/822 of 25 May 2018 and makes the so-called promoters (ie tax advisors, advocates and attorneys-at-law) subject to the obligation to submit to the Head of National Revenue Administration information about tax schemes. The obligation to disclose arrangements applies not only to cross-border arrangements, but also to some domestic arrangements in Poland. In specific situations, it may be the case that advocate or attorney-at-law will be the party notifying about the tax scheme to the authorities (after the consultation with the client). As a result, the professional privilege is such cases is waived.

There is ongoing litigation regarding this subject matter in criminal and civil litigation, as well as in litigation concerning investigations of alleged competition infringements (which are misdemeanours). As concerns the latter and on the basis of public info, court actions concern primarily Competition Authority’s actions in the context of surprise inspections ('dawn raids'). For instance, as regards the seizure and reading of e-mail communications sent or received by lawyers by the Competition Authority’s officials, undertakings are currently arguing their illegality.

As for recent legal developments the focus is on the transposition of EU Directives.

The Private Damages Directive has been transposed by Law nr. 23/2018, of 5 June.  If, on the one hand, the Directive provides that consistency is particularly necessary in what regards the arrangements for access to documents held by national competition authorities, on the other hand it provides for a restriction on disclosure of evidence covered by legal professional privilege. This is also provided in Law nr. 23/2018.

The process of transposing the ECN+ Directive into the Portuguese legal system is still continuing, even though the deadline for  transposition has already passed. The original bill, drafted by the Competition Authority, envisaged certain limitations on legal privilege for in-house counsel, aimed at bringing the Portuguese regime closer to the EU regime. However, these provisions have been excluded from the modified bill that is currently under discussion in the Portuguese Parliament. It is expected that the law transposing the ECN+ Directive will be adopted before the end of 2021.

There do not appear to be any recent cases or other legal developments in the State of Qatar regarding legal professional privilege.

Recent legal developments

The scope of the documents covered by legal privilege has been narrowed down following recent amendments to the Competition Law, entered into force on 1 January 2016. As a consequence, the RCC inspectors will be able to seize and use as evidence preparatory documents.

Case Law

To our knowledge, there are only few court decisions regarding the privileged nature of documents seized by the Romanian Competition Council during a dawn raid.

In these cases (Bucharest Court of Appeal, Alpiq Romindustries SRL. and Energy Holding SRL v. The Romanian Competition Council, Decision no. 5938 from 22 October 2010 and Decision no. 7074 from 11 December 2012, decisions maintained by the High Court of Cassation and Justice through its Decisions no. 5881 from 20 June 2013 and no. 7707 from 11 December 2013, and High Court of Cassation and Justice decision no. 7707/2013), the documents for which the application of legal professional privilege was invoked were legal opinions of the external lawyers issued prior to the beginning of the investigation in respect of the relationships between the undertakings involved in the case.

The Bucharest Court of Appeal rejected the claims on the ground that the legal advice referred to purely commercial considerations and was not related to the right of defence of the undertakings investigated in relation to the enforcement of the competition rules. The High Court of Cassation and Justice irrevocably rejected the appeals made. The High Court of Cassation and Justice also defined the right of defence (for the purpose of legal professional privilege application) as including all the rights and procedures a person may employ for the purpose of defending its fundamental rights and liberties, in the cases where the breach of certain legal provisions may entail the application of an administrative or criminal fine, as the case may be. The document in question related only to the parties contractual relationship and did not have a connection with the potential anticompetitive nature of such relationship.

Legal professional privilege in the context of merger control

To our knowledge, legal professional privilege has not been invoked in practice in connection to merger control procedures.

However, as legal professional privilege covers communication exchanged between an investigated undertaking and the external lawyer, it may be inferred that correspondence exchanged with a lawyer is only protected in the context of an investigation and not in the context of other type of procedures in front of the Competition Council, such as merger control procedures.

Furthermore, the High Court of Cassation and Justice has adopted a narrow definition of the right of defence concept (for the purpose of legal professional privilege application) in the above mentioned decisions. As such, the right of defence refers to all the rights and procedures a person may employ for the purpose of defending its fundamental rights and liberties, in the cases where the breach of certain legal provisions may entail the application of an administrative or criminal fine.

No details for this country.

There do not appear to be any recent cases or other legal developments in Saudi Arabia regarding legal professional privilege.

Holman Fenwick Willan LLP v Procurator Fiscal, Glasgow 2017 HJAC 38: High Court decision relating to the recovery of privileged documents from a solicitor's office. The court held that where a search warrant had been obtained by the Crown for material over which there was an ongoing dispute about legal privilege, with no suggestion that the relevant solicitors' firm were involved in any form of illegality or any averment that it would be likely to destroy or conceal the relevant material, the application for the warrant, without intimation, was oppressive.

We expect to see changes in this area as Serbia gets closer to joining the EU. Consequently, the changes would probably mean that national law would become more compliant with acquis communautaire.

The recent amendments to the Evidence Act, which clarify that the protections under sections 128 and 131 extend to in-house counsel, place renewed emphasis on the purpose test where legal professional privilege is concerned. Per their terms, the protections afforded by sections 128A and 131(2)(b) are available only where communications to and from the in-house lawyer are made 'in the course and for the purpose of his employment as such legal counsel'.

In Boey Chun Hian v. Singapore Sports Council [2013] SGHCR 15, the High Court indicated that a large volume of documents could be generated within a corporation, and that many of them may pass through the hands of the in-house counsel. The High Court considered that mere submission of a document to an in-house counsel should not easily attract a claim to legal professional privilege, as the effect would be that an excessive numbers of documents would be excluded from production in discovery, yet would still remain available for use by the party possessing those documents in a manner that would surprise their opponent. The High Court therefore favoured the application of the 'dominant purpose' test to determine whether legal advice privilege attaches to particular documents. This was clearly intended to curtail and discourage excessively broad claims to legal advice privilege when dealing with documents that have been provided to in-house counsel.

In HT SRL v Wee Shuo Woon [2016] 2 SLR 442, the Singapore High Court held that the fact that a document was privileged (and illegitimately or inadvertently released to an opposing party) would not in itself be a bar to its admissibility as evidence. The court could, however, exercise its equitable jurisdiction to regulate the improper use of privileged documents that were improperly or inadvertently disclosed to protect its confidential character. In this case, the fact that the privileged documents were obtained as a result of the commission of cybercrime by a third party, was a key factor motivating the court's exercise of equitable jurisdiction to preclude the admissibility of the disclosed privileged documents. The decision of the High Court was upheld by the Singapore Court of Appeal in Wee Shuo Woon v HT SRL [2017] SGCA 23.

In the case of ARX v Comptroller of Income Tax [2016] 5 SLR 590; [2016] SGCA 56, the Singapore Court of Appeal clarified the scope of the Evidence (Amendment) Act 2012. The decision confirmed that communications with in-house counsel, even if they existed prior to the 2012 amendments, are protected by legal professional privilege. The Evidence Act was held not to detract from the existence of the common law principle that privilege extends to in-house counsel. Furthermore, the Court of Appeal clarified the applicable test for implied waiver of privilege and stated that a fact-sensitive exercise of judgment and objective enquiry is required. The mere reference to a privileged document in legal proceedings, as opposed to disclosure of its contents, did not constitute an implied waiver. When determining whether reference to a privileged document amounts to the existence of implied waiver, a court should examine all circumstances of the case including:

• The materiality of the information in the context of the pending proceedings
• The circumstances under which the disclosure took place
• Whether it may be said that the party had 'relied' or 'deployed' the advice to advance their case
• Whether it can be said that there is a risk that an incomplete and misleading impression had been given

Legal professional privilege is not expressly recognised in Slovak legislation. There is unfortunately no case law in this respect, therefore it is difficult to anticipate the standpoint of the Slovak courts on this. According to recent information, however, the Slovak Competition Authority is proceeding in line with the case law of the Court of Justice of the EU, thus its procedure in the course of investigations shall be similar to the procedure of the European Commission in the course of investigations.

In line with this, the company shall prove to the Authority that:

• the respective document related to the subject of the investigation, and
• the document/correspondence relates to the communication between the undertaking and its advocate.

For this purpose, the employees of the Authority conducting the investigations do have the right to look into the document in order to identify to whom this document is designated, but they have no right to investigate the content of such document. If the company will not allow the Authority’s employees to look into the document, it will have to provide to the Authority sufficient evidence that indeed these documents present information relating to the communication with the advocate.

In 2016, the Slovenian Constitutional Court published a decision which lays the foundation for the current regime relating to legal professional privilege. The court ruled that an attorney can respect the client’s confidentiality only when their own confidentiality is protected. Legal professional privilege may only be limited based on an act adopted by a legislator and in exceptional cases, such as criminal investigations. The decision resulted in the amendments to the Slovenian Criminal Procedure Act in 2019. Effectively, the level of legal professional privilege was raised considerably.

• In the matter of The Competition Commission v. Arcelormittal South Africa Ltd, delivered by the Supreme Court of Appeal in May 2013, it was held (in the context of the Commission’s corporate leniency policy) that reference to a part of a document sufficient to constitute waiver destroys the legal professional privilege attached to the entire document, and not just the part referred to (unless the document consists of severable parts and is capable of severance).

• In A Company and Two Others v The Commissioner for the South African Revenue Service 2014 (4) SA 549 (WCC) the court held that where a fee note sets out the substance of the privileged communications in respect of the person seeking or giving of legal advice, or contained sufficient particularity of their substance to constitute secondary evidence thereof, those parts, but not the document as a whole, would be amenable to the privilege. The test was whether, upon an objective assessment, the references disclose the content, and not just the existence, of the privileged material. The privilege should be asserted by blacking out the information, so as to disclose those parts of the document that were not subject to the privilege and covering up those that were, and that the party asserting the legal professional privilege should generally be able to provide a rational justification for such claim without needing to disclose the content or substance of the matter in respect of which the privilege is claimed.

• The right to privilege is also recognised by the Promotion of Access to Information Act 2 of 2000, which was enacted to give effect to the right to access to information. This piece of legislation upholds privilege by firstly excluding its application to pending litigation, where the rules of discovery remain unchanged, and secondly prohibiting access to privileged records.

On May 17, 2012, the Supreme Court of Korea ruled on whether a legal memorandum which contained a client's admission of guilt could be used as incriminating evidence in court (Case Number: 2009 Do 6788). The court held that Article 149 of the Criminal Procedure Act granted lawyers the right to refuse testimony when asked whether the lawyer had prepared the legal memorandum.  However, if the lawyer acknowledges that they produced the legal memorandum, thereby waiving the right to refuse testimony, then the legal memorandum can be used as incriminating evidence.

The court emphasized that the inadmissibility of the legal memorandum was not by virtue of 'lawyer-client privilege,' explaining that lawyer-client privilege does not extend so far as to protect clients seeking routine legal advice against whom investigations/trials have not yet commenced. The reluctance of the Supreme Court of Korea to rely on the principle of lawyer-client privilege in reaching its decision has invited some criticism from the Korean legal community.

In August 2016, the Korean Prosecution instituted an investigation against the owner family of the Lotte Group for tax evasion. During that process, the Prosecution reportedly summoned as witnesses and questioned the lawyers from the law firm that provided legal advice to the owner family, and also applied for a search warrant in respect of the tax related materials held by the owner family. The court issued the warrant, and given the impending threat of additional warrants being issued against the law firm, the law firm had to 'voluntarily' submit its materials related to this case.

The Korean Bar Association issued a statement criticizing the actions of the Prosecution for such investigative practices.

From a criminal law perspective, even judges have been prosecuted for breaching professional secrecy between lawyer and defendant, for example by taping their private conversation without sufficient legal grounds. The Supreme Court recognises the right of a lawyer to refuse to testify against their client on the basis of information obtained as a result of their professional activity. More recent Supreme Court case law confirms that:

• The basis of the obligation is the trust and confidentiality of the client relationship.
• A breach of this duty implies damage to the client´s rights of confidentiality and to effective legal protection;

• The obligation begins when a lawyer is instructed by a client. This is to ensure an adequate defence in the future process, which may require defendants to provide their lawyers with all available information required to guarantee an effective defence;

• Lawyers are also not required to report any incriminating or damaging information in accordance with art. 263 of the Spanish Criminal Procedure Act.

From the civil perspective, there are relevant precedents such as judgment number 6/2018, issued by the High Court of Valencia (Audiencia Provincial) on 16 January (appeal number 355/2017). In this case, a lawyer acted as a witness. In the hearing, the lawyer recognised that he was appointed as a lawyer by the plaintiff in criminal proceedings against the defendant and that an amicable settlement had been agreed between both parties (plaintiff and defendant). By means of this agreement a debt was recognised and the criminal complaint filed by the plaintiff was withdrawn. The Court held that, these statements did not infringe the lawyer's obligations of professional secrecy.

A more recent precedent was issued by the High Court of A Coruña on 25 January 2021. The court pointed out that the right to professional secrecy is not a right, but an absolute obligation of confidentiality and it is a right of the client. So, to respect this right, the lawyer cannot be forced to testify. The only exception would be that the client exempts the lawyer from this duty for his own protection. Furthermore, the judge stated that any response given by the lawyer in those circumstances would be a violation of fundamental rights and should be inadmissible.

From an antitrust perspective, the Spanish Competition Authority had the opportunity to decide on the application of legal privilege to competition procedures in Spain in a decision issued in December 2020 (Case R/AJ/079/20 Albia). In particular, the Spanish Competition Authority obtained certain evidence related to potential infringements during a merger control procedure in the funerary services sector (Case C/1086/19 Santa Lucía/Funespaña). That evidence allowed the authority to open an investigation and conduct a dawn raid on Albia’s premises, which was subsequently appealed by the company under investigation.

In that context, Albia filed an appeal and claimed, among other things, that the Spanish Competition Authority had breached  legal privilege on the basis that European case-law (i.e., Akzo judgment) on this matter did not apply. From their perspective, the difference between  legal privilege for in-house lawyers and external lawyers is not valid. This argument -together with the entire appeal- was rejected by the Spanish Competition Authority and it remains to be seen if the defendant appeals.

There have been no recent cases or legal developments impacting the application of legal professional privilege in Sri Lanka.

Swedish legal professional privilege has most recently been discussed in a case following the Swedish Competition Authority's dawn raid on Swedish postal companies (decision number Ä 6673-11 of 22 June 2011). In the decision by the District Court of Stockholm, the Court provided that Swedish legal professional privilege should be interpreted in accordance with EU law. The Court held that a minimum, but not maximum, level of privilege was provided for in the European Court of Justice's decision in the AM & S Europe case (case 155/79). However, it was maintained by the Court that Swedish legal professional privilege was more far reaching than the minimum EU standard in so far as Swedish legal professional privilege protects almost every document which has been confided to an advocate in their professional legal capacity. In order for the protection provided not to be hollowed out, the Court furthermore held with reference to Swedish Supreme Court decision NJA 1990 s 537 and NJA 2010 s 122, which held that it was only 'to a modest extent' necessary to show that the document was protected by legal professional privilege. In that case, the in-house counsel, who was not an advocate, had prepared a document of interest to the authority. The in-house counsel could however provide an email which indicated that the memorandum had been confided to the company's external counsel, an advocate, and therefore the Court deemed the document protected by legal professional privilege.

No details for this country.

In 2002, there was a case in which a lawyer was punished by the Lawyer Conduct Committee due to his violation of Clause 11 of the Regulation of Lawyer Conduct.

Pertaining to the probe conducted by the Lawyer Conduct Committee, they found that he had disclosed confidential information obtained from his client to the adverse party which caused damages to the client. The Lawyer Conduct Committee then ordered the removal his name from the lawyers’ register.

The Turkish Competition Board evaluated legal professional privilege in one of its decisions (dated 13.10.2009 and numbered 09-46/1154-290) and followed an approach similar to that of the European Commission. The Competition Board indicated in its decision that, in order to deem the information privileged, the lawyer shall be independent, and the relevant document must be produced in the scope of a lawyer/ client relationship. Secondly, the Competition Board indicated that the information must be subject to the right of defence of the client.

Additionally, there must be a causal link between the lawyer’s practice and the information obtained in order to deem such information privileged.

In a decision by the Constitutional Court (dated 14.11.2011, merit number 2009/19013 and decision number 2011/21017), it was held that the Supreme Court deems that the lawyer can avoid disclosing the whereabouts of their client as per their obligations regulated in the Legal Profession Law and European Convention on Human Rights. The Constitutional Court stated that the trust and loyalty is in the nature of the 'client-lawyer relationship'. Moreover, according to the decision, the parties may raise their objections not only to the judiciary bodies of the Turkish Republic but also to the administrative bodies.

No details for this country.

There do not appear to be any recent cases or other legal developments in the UAE regarding legal professional privilege.

In June 2014, the United States Court of Appeals for the District of Columbia Circuit ('DC Circuit'), in the case of In re Kellogg Brown and Root, 756 F.3d 754 (D.C. Cir. 2014), strengthened the application of the lawyer-client privilege in situations in which in-house counsel is leading a company's internal investigation. The trial court had held that the privilege did not apply when an investigation is being conducted to determine whether the company was complying with government regulations that require companies to maintain compliance programmes or respond to allegations of wrongdoing. The lower court concluded that in-house counsel did not have the same privilege protections as retained outside counsel and that was particularly so when the internal investigation involved communications with non-lawyers who were working under the direction of the in-house lawyers. The DC Circuit reversed the decision and concluded that:

• A lawyer's status as in-house counsel 'does not dilute the privilege'
• The fact that the investigation was being conducted by non-lawyers does not vitiate the privilege as long as the non-lawyers were working under the direction of the legal department
• The privilege is not lost simply because employees being interviewed were not told that the purpose of the interview was to assist the company in obtaining legal advice, and
• Even if there is a business purpose for the interviews – such as assessing compliance with governmental regulations – the privilege will still apply if 'one of the significant purposes of the internal investigation was to provide legal advice'

In 2018, the DC Circuit also clarified the proper application of the so-called 'primary purpose test,' which provides that a communication between an attorney and client is privileged if its primary purpose is to seek or provide legal advice. Application of this test can become complicated when the client and attorney discuss both legal and business issues in the course of their communication. In FTC v. Boehringer Ingelheim Pharmaceuticals, Inc., 892 F.3d 1264 (D.C. Cir 2018), the DC Circuit explained that a communication with both legal and business purposes will be privileged so long as 'obtaining or providing legal advice was one of the significant purposes of the communications at issue.' Id. at 1268.

Application of legal professional privilege to former and prospective clients

The attorney-client privilege also protects communication with prospective clients and former clients. Under Rule 1.18, communication between a lawyer and a prospective client who does not retain the lawyer's services remains privileged. In these situations, lawyers should limit the information obtained during a preliminary interview to the information necessary to screen for conflicts. Under Rule 1.9, communication between a lawyer and a former client – arguably even one who is deceased – also remains privileged. The question of whether the legal professional privilege should survive a client's death is a debatable one. On the one hand, disclosure will not place the client in jeopardy; on the other hand, disclosure may call into question the former client's character.