Scope of legal professional privilege

Australia

Australia

What is protected by legal professional privilege?

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

How is legal professional privilege waived?

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

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

Legal professional privilege in the context of merger control

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

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

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

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

Last modified 15 Mar 2019

Austria

Austria

In the context of civil litigation and investigations by the competition authority, a lawyer may not give evidence relating to advice given to a client on the basis of their obligations of confidentiality under the Attorney Regulation. The Attorney Regulation also prohibits any attempted circumvention of the confidentiality obligation.

In the context of criminal investigations, legal professional privilege is derived from the prohibition of attempts to circumvent a lawyer's right to refuse to give evidence on matters subject to legal professional privilege. It covers communications between a client and their lawyer and is not limited to communications between a lawyer and their client after a criminal investigation has been initiated. Legal professional privilege protection begins when a client consults their lawyer about conduct of the matter, even if the police do not have any evidence against the client at that point. Legal professional privilege remains in place even after the termination or conclusion of the lawyer-client relationship. It is not limited to the lawyer but extends also to the lawyer's employees.

Examples of protected communications include minutes of meetings and notes on conversations between the client and the lawyer, compliance reports, strategy papers, copies of contracts given to the lawyer for information and expert opinions, as well as the lawyer's notes and memos regarding the case. Documents recording the results of inquiries regarding the client made by the lawyer are also protected.

Evidence of criminal activity is not protected by legal professional privilege and so cannot be made 'immune' from disclosure by being deposited with a lawyer. This means that exhibits of evidence (eg original contracts) are never covered by legal professional privilege regardless of the time of their creation. Another significant limitation to legal professional privilege is the fact that it only covers documents in the lawyer's immediate possession (ie kept at the lawyer's premises), while communications between the client and their lawyer found in the client's possession are not protected.

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

Legal professional privilege is not applicable to in-house counsel as in-house counsel cannot be or remain registered with the Austrian Bar. To be able to register or remain registered with the Austrian Bar, lawyers need to be independent and not under the control of the client. These requirements are not met by in-house counsel that are normally integrated in the organisation of their client. In-house counsel usually have various functions, which extend beyond the services normally provided by a lawyer, sometimes including management functions.

There are no explicit legal provisions protecting communications between in-house counsel and officers, directors or employees of a company. However, Austrian labour law establishes a general duty of loyalty owed by employees to an employer. This means that all employees of a company (including in-house counsel) are obliged to protect the employer's business interests. It includes the obligation not to disclose relevant information concerning the enterprise to third persons. Under Art 15 DSG, the Austrian Data Protection Act, data which has been accessible during and by virtue of one's employment, has to be treated as confidential subject to any legal requirements for its disclosure. Communications between in-house counsel on the one hand and officers, directors or employees of the company on the other are subject to this general duty of secrecy if this is in the employer's interest. These secrecy obligations, however, are not applicable if the employee is called as witness in proceedings which are criminal, administrative or civil. Furthermore, this obligation of secrecy normally only lasts for the duration of the respective employment contract. At a later stage, the employee is only committed to confidentiality if a particular confidentiality agreement has been entered into.

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

Legal professional privilege principally only applies to lawyers registered with the Austrian Bar and to European lawyers (lawyers from other EU and EEA Member States). Therefore, there is no guarantee that a client's communications with other foreign qualified lawyers are protected.

How is legal professional privilege waived?

While the client can release their lawyer from the obligation to maintain confidentiality, this does not mean that the lawyer therefore automatically loses their right to refuse to give evidence in a criminal investigation against the client, since the right of refusal to testify is personal in nature and has to be exercised in accordance with the professional code of conduct (Austrian Attorney Regulation).

An exception to legal professional privilege is applied in cases of money laundering. When there is a suspicion that a certain client is connected to money laundering activities, their lawyer is obliged to report such activities to the Austrian Federal Office of Criminal Investigation. This rule does not apply in respect of facts learned in the preparation of court proceedings.

Legal professional privilege in the context of merger control

Neither of the Austrian competition acts contain any express provisions regarding legal professional privilege in the context of merger control procedures, or in general. There has also been no case so far heard by the Austrian cartel court regarding legal professional privilege.

Last modified 15 Mar 2019

Bahrain

Bahrain

Legal professional privilege protects all communications between a professional legal adviser and their client from being disclosed without the permission of the client. The privilege is solely for the benefit of the client and not the lawyer. The objective of this legal principle is to protect one's access to the justice system by ensuring individuals can disclose all relevant information to their legal advisers without the fear that this disclosure may result in negative repercussions or prejudice them in the future.

A lawyer ceases to be bound by the requirements of legal professional privilege if the lawyer can demonstrate that documentation or information:

  • was in the public domain at the time it was disclosed to the lawyer;
  • entered the public domain subsequent to the time it was disclosed to the lawyer through no fault of the lawyer; or
  • was in the lawyer's possession free of any obligation of confidence at the time it was disclosed to the lawyer, evidenced by records in existence at the time of disclosure.

Notwithstanding the lawyer-client privilege, a lawyer may disclose certain documents / information to the extent such disclosure is required by a valid order of a court or other governmental body having jurisdiction, provided that the lawyer provides the client with reasonable prior written notice of such disclosure, and makes a reasonable effort to obtain a protective order preventing or limiting the disclosure and/or requiring that the documents / information so disclosed be used for the purposes for which the law or regulation was required, or for which the order was issued.

It is advisable that if parties are attempting to settle their dispute in Bahrain, they should qualify any form of communications with statements to the effect that any offer or communication does not constitute an admission of liability. Parties should also seek an undertaking that any information contained within such communications will not be used as evidence in any subsequent proceedings.

It appears that the same privilege protections do not apply to in-house legal counsel advising officers, directors or employees of the company as they are not independent of the client. However, to protect this information, it is possible to enter into a confidentiality agreement between the employer and the employed in-house legal counsel.

Legal professional privilege in the context of merger control

Legal professional privilege has not been clearly defined within the context of merger control in Bahrain.

Last modified 25 Jul 2019

Belgium

Belgium

What is protected by legal professional privilege?

Legal professional privilege applies to lawyers (Avocat / Advocaat) who are members of the Flemish (OVB) or the French and German Bar (OBFG) in Belgium. Legal professional privilege is not limited in time and is also applicable during any pre-trial stage.

Any information received by a lawyer (acting in their capacity as lawyer) or obtained in the context of the provision of legal advice, legal proceedings or any dispute in general, or in matters determining the client’s rights and obligations, are protected by legal professional privilege. This may include emails, correspondence, notes, advice, or preparatory documents.

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

Belgian law recognises legal professional privilege for in-house counsel. Under Article 5 of the Act of 1st March 2000 creating the Belgian Institute for In-house counsel (Institut des Juristes d’Entreprise / Instituut voor Bedrijfsjuristen), advice given by in-house counsel, for the benefit of the counsel's employer and in the framework of activity as legal counsel, is confidential.

This was confirmed by the Brussels Court of Appeal in a judgment of 5 March 2013. The Court of Appeal held that in accordance with Article 5 of the Act of 1st March 2010 read in conjunction with Article 8 of the ECHR (right to privacy), the Belgian Competition Authority could not seize documents containing legal advice provided by in-house counsel. The Court of Appeal held that legal professional privilege also covered internal requests for legal advice, correspondence relating to the legal advice, draft opinions and preparatory documents.

How is legal professional privilege waived?

The question of whether legal professional privilege can be waived has been often debated: whereas some commentators consider that the core principle of legal professional privilege can never be waived, as it is an obligation of public policy, others consider that legal professional privilege belongs to the client and may therefore be waived.

Past judgments have held that legal professional privilege may be overridden in certain cases in favour of the client’s right of defence.  It is generally accepted that a lawyer should or is entitled to set aside legal professional privilege if a higher value (overriding public interest grounds or state of necessity (Article 71 of the Belgian Criminal Code)) is at stake which can only be safeguarded through disclosure of the privileged information.

Legal professional privilege in the context of merger control

Legal professional privilege has not been clearly defined within the context of merger control in Belgium.

Last modified 15 Mar 2019

Bosnia and Herzegovina

Bosnia and Herzegovina

What is protected by legal professional privilege?

The current legal provisions in F BiH are silent as to the moment when the documents created by a lawyer are protected by legal professional privilege. However, bearing in mind the applicable Advocacy Acts and Criminal Proceedings Acts, a conclusion can be derived that all documents created after the hiring of the lawyer by the client are protected. Pursuant to the Code of Attorney Ethics of the Attorney Bar of F BiH and Republic Srpska, a lawyer is obliged to keep as confidential even information disclosed to him by a client whom he refused to represent. Pursuant to the aforementioned, all documents between the lawyer and the client are protected by legal professional privilege. The scope of legal professional privilege in criminal proceedings where the lawyer acts as defence lawyer to a client is broader than the general legal professional privilege applicable to litigation and competition law subjects. Legal professional privilege in criminal proceedings includes the protection of mail and communication with the lawyer and exemption from specific investigation measures which are all established by the Criminal Proceedings Acts.

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

All the provisions regulating legal professional privilege relate to certified lawyers who are registered with the Attorney Bar, and thus not to in-house counsel.

The right not to testify against a client, although not specifically regulated for in-house counsel, can to a certain extent be extended to in-house lawyers due to their obligations of professional secrecy.

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

The above-mentioned applies also to foreign qualified lawyers.

How is legal professional privilege waived?

The waiver of legal professional privilege must be done explicitly by the person in whose favour it is established.

Last modified 31 Aug 2016

Brazil

Brazil

What is protected by legal professional privilege?

Attorneys cannot disclose any non-public information received from their clients or otherwise obtained in the context of the attorney-client relationship, regardless of the nature of such information or the manner in which it is disclosed / obtained. Moreover, attorneys cannot testify before courts or any other authority about facts pertaining to their clients or when such testimony involves matters that may be subject to the duty of confidentiality.

The attorney’s office / workplace, work tools / products and work-related communications are also protected by the attorney-client privilege and cannot be searched and / or seized by third parties (unless the attorney is the subject of an investigation for having committed a crime, whether in collusion with their client or not, and a specific search warrant is obtained from a competent court).

The duty of confidentiality must be observed by all attorneys duly enrolled with the Brazilian Bar Association, including in-house counsel and foreign attorneys acting in Brazil as 'consultants on foreign laws' under Rule 91/00 enacted by the Federal Council of the Brazilian Bar Association.

The privilege applies without distinction, whether the attorney-client relationship involves civil litigation, criminal investigations or investigations by any competition or other authorities.

The privilege will not apply to information that is already in the public domain at the time that it is disclosed / obtained or that subsequently enters the public domain, and while attorneys should refrain from publicly discussing matters involving their clients, they will not be in violation of their duty of confidentiality if they discuss with third parties information already in the public domain at the time of their engagement or that enters the public domain outside their control.

Attorneys will only be authorised to disclose confidential information revealed to or obtained by them in the context of the attorney-client relationship in the cases of 'severe threat to life or honour' or when any action taken by the client against the attorney is regarded as an 'affront' and the disclosure of confidential information is required in 'self-defence'. The cases that may fall into the category of 'severe threat to life or honour' or 'affront' are not expressly defined by Law 8,906/94 or by the Code of Ethics and Discipline.

Legal professional privilege in the context of merger control

As in Europe, rapid technological development has changed the merger control landscape, with complex highly technical mergers taking place. The lack of understanding of certain sectors leads to massive requests for information and review of corporate internal documents is often required in order to assess the markets and the strategy of the undertakings. This may result in disclosure to the detriment of legal professional privilege in some cases.

Legal professional privilege is not defined within the context of Brazilian merger control, but has been recognized as a fundamental right under the Brazilian legal framework and will not be disregarded within the context of merger control proceedings.

Given the lack of case law on legal professional privilege in the context of merger control, undertakings may rely on the basic legal privilege set forth by the Federal Law 8,906/94 to prevent undue use of privileged information by the Competition regulator ('CADE'). Any breach of legal privilege by CADE in the course of a merger filing could be challenged in courts and any decision rendered by the regulator misusing privileged data may be held null and void by a court of law. CADE may then be obliged to reassess the merger filing using solely the content that does not breach Brazilian legal privilege, creating delays, compromising enforcement and entailing a reputational risk to the authority. The decision will be granted by a court of law using Brazilian Federal laws not necessarily CADE’s regulations.

In merger cases, it is relatively common to rely on work prepared by economists as well. These documents are not covered by privilege and may be freely used by the Competition Regulator and even shared with other competition regulators, provided that they ensure that competitively sensitive data (prices, quantities, commercial strategy, business secrets, amongst others) cannot be accessed by competitors and the general public.

Last modified 15 Mar 2019

Bulgaria

Bulgaria

What is protected by legal professional privilege?

Legal professional privilege covers all data, documents and correspondence (papers, files, electronic documents, computer equipment and other carriers of information) which are in the possession of lawyers and which relate to their clients. Legal professional privilege covers all information obtained by the lawyer in regard to his work on a particular case or for a particular client, and which has been provided to the lawyer either by the client or by third parties. In this regard, it makes no difference if the case is related to litigation, completion of a deal, soliciting advice, etc. This protection commences as soon as the lawyer is instructed by the client.

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

The correspondence between lawyers and their clients’ in-house lawyers is subject to legal professional privilege.

The correspondence between in-house lawyers and their employer is not regulated by the Bulgarian legislation. Therefore, and with the lack of an explicit court or administrative practice to the contrary, we consider that the communication between in-house lawyers and their employers might not be subject to legal professional privilege.

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

Lawyers who are citizens of another EU Member State, of a state party to the EEA Agreement or of Switzerland, and who are qualified to practise as a lawyer in at least one of the said countries, have the same rights and obligations as regards legal professional privilege as lawyers that are Bulgarian nationals and admitted to any of the Bulgarian local Bar Associations.

Apart from foreign qualified lawyers as per the previous paragraph, lawyers who are citizens of other countries might enjoy protection of legal professional privilege pursuant to the provisions of an international treaty between the Republic of Bulgaria and the country of nationality of the said lawyer or on the basis of reciprocity between the two countries.

How is legal professional privilege waived?

The duty of professional secrecy is provided by the law in order to secure the right to obtain legal advice in criminal, civil and administrative proceedings. However, being a right of the client, legal professional privilege can be waived by the client. The client can allow the lawyer to testify as a witness before the court and to provide information which otherwise would have been confidential and subject to professional secrecy, including correspondence between the lawyer and the client.

The Bulgarian legislation against money laundering and financing of terrorism provides for some limitations of legal professional privilege. Finally, legal professional privilege may be derogated from in cases such as a state of war, martial law or other state of emergency pursuant to the provisions of the Constitution of the Republic of Bulgaria.

What are the differences between the scope of legal professional privilege in civil litigation, criminal investigations, and antitrust and competition law investigations?

According to Article 166, Para 1, point 1 of the Civil Procedure Code, the lawyer representing a party to a civil case has the right to refuse to testify 'in the same case'. The way that provision is drafted opens the door to the interpretation that the lawyer may not be entitled to refuse to testify on matters concerning his client if disclosed to the lawyer in another case. Such interpretation would however be clearly contrary to the Constitution and to the Bar Act.

The Criminal Procedure Code in Article 121, Para 2 contains a broader provision, which states that witnesses may not be interrogated about circumstances which were confided to them as defence counsel or lawyer.

Similarly, the Administrative Procedure Code in Article 48, Para 2 provides that lawyers, being by law obligated to respect the professional secrecy of a party to the proceeding, may refuse to provide information obtained by them in their capacity as such.

Article 47, Para 1 of the Protection of Competition Act provides that all persons from whom assistance is requested in an investigation (antitrust and competition) under that Act may not invoke 'industrial, trade or other secrets protected by law'. Although drafted broadly, the phrase 'other secrets protected by law' should not be interpreted to include secrets covered by legal professional privilege. That conclusion is made when the cited provision is interpreted in conjunction with the special provision of the Administrative Procedure Code as mentioned above on the position of lawyers in any type of administrative proceedings undertaken by administrative bodies (such as the Commission on Protection of Competition).

Despite the slight differences in the above-cited provisions related to legal professional privilege, there is no dispute regarding the constitutional provision of Article 30, Para 5 that the confidentiality of the communications between the lawyer and the client shall be inviolable. No exceptions to that constitutional right are allowed. In accordance with this, the special provisions of the Bar Act as cited and discussed above contain no limitations as to the kind of proceedings in which legal professional privilege can be invoked. Thus the conclusion shall be that legal professional privilege shall be equally applied in any legal actions and proceedings – civil, criminal, administrative, antitrust and competition investigations.

Last modified 7 Jun 2016

Canada

Canada

Are communications with in-house counsel privileged?

In-house counsel, performing the function of a lawyer, are covered by privilege. However, where in-house counsel are acting in a business capacity rather than a lawyer’s role, privilege will not apply. It is the nature of the communication and the relevant circumstances which will determine privilege, not the job title.

Are communications with foreign qualified lawyers privileged?

As long as the client is seeking legal advice from a qualified lawyer in a foreign jurisdiction, communications will be privileged. This issue has not been addressed extensively in Canadian courts. The safer option would be to retain a Canadian lawyer who then communicates with the foreign qualified lawyer, which would provide a stronger basis for ensuring the communications are privileged.

Are there any exceptions to legal professional privilege?

There are three exceptions to privilege that are rooted in public policy and are not controlled by the client:

  • No privilege attaches to communications that are made for the purpose of assisting someone to commit a crime
  • Privilege may be set aside in order to afford an accused person the right to make a full answer and defence when innocence is at stake, and
  • There is an exception to the privilege where there exists a 'clear, serious and imminent threat to public safety.' This is called the public safety exception. The exception only applies to future harm, and not past harm that has already occurred.

How is legal professional privilege waived?

Privilege will cease to apply where it has been waived; privilege can be waived expressly or by implication. Waiver requires some voluntary action by or on behalf of the client that is inconsistent with continuing to protect privilege.

Privilege can only be intentionally waived by the client. Privilege can be waived on a limited scope, restricting the amount of information that will be disclosed as long as it is not misleading or would take unfair advantage.

Privilege can also be waived by implication. Waiver by implication typically occurs where a party to litigation takes a legal position that is inconsistent with maintaining privilege, for example, by putting in issue the legal advice it obtained.

Implied waiver will occur where the following three criteria are met:

  • The voluntary disclosure by the privilege holder that they sought or received legal advice
  • On an outstanding issue between the parties, and
  • The attempt by the privilege holder to rely on that legal advice in order to justify a particular course of action

Implied waiver also arises where a client challenges the cost or adequacy of legal services or refuses to pay for legal services. In proceedings to review or collect a lawyers bill or in a negligence suit against a lawyer, privilege will be impliedly waived to the extent necessary to determine the issues in such lawsuits.

Where privileged information is disclosed through inadvertence, Canadian courts have resisted finding a waiver of privilege. Lawyers who receive privileged communications inadvertently generally have an ethical obligation to return or destroy the communications and not use them.

Legal professional privilege in the context of merger control

Privilege may also be claimed in the face of government investigations. Authorities may compel production of records in various ways, including orders requiring a person to deliver documents to a government agency and the execution of search warrants (referred to in some jurisdictions as a 'dawn raid').

The procedures for asserting privilege will depend on the governing legislative regime. For example, when Canada’s Competition Bureau executes a search warrant under the Competition Act, the person whose premises are searched may, before or during the examination, copying or seizure of a record by the Bureau officer, claim privilege over the record and require it to be sealed in a package. The package will normally be placed into the custody of a court registry (or other person by agreement) for later judicial determination as to the privilege claim. A party who is otherwise required to produce information (including documents) to the Commissioner of Competition as part of merger review may withhold privileged information or redact privileged portions. In so doing, the party must inform the Commissioner under oath or statutory declaration and explain why the information has not beensupplied.

Last modified 15 Mar 2019

China

China

No details for this country.

Last modified 15 Mar 2019

Croatia

Croatia

What is protected by legal professional privilege?

The Lawyers’ Code of Ethics provides that all documents, recordings, computer data, pictures and similar materials and deposits kept in the lawyer’s office are protected by secrecy. Lawyers must preserve the confidentiality of any information acquired from a client or otherwise while rendering legal assistance, particularly during legal representation or defence.

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

The protection of communications with in-house counsel is not explicitly regulated by statutory provisions. However, since the protection under the applicable legislation refers only to communication with lawyers (odvjetnik), this would indicate that communications with in-house counsel are not protected.

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

The law does not specify any restrictions on the application of the secrecy obligations in the case of foreign qualified lawyers. Pursuant to the Legal Profession Act, lawyers qualified to practise law in an EU Member State must comply with the Lawyers’ Code of Ethics and therefore they fall under the scope of the secrecy obligations.

Last modified 17 Jun 2016

Cyprus

Cyprus

What is protected by legal professional privilege?

Legal professional privilege extends to communications between clients and third parties if the sole or dominant purpose for which they were produced was to obtain legal advice in respect of existing or contemplated litigation, or to conduct, or aid in the conduct of, such litigation. In such types of communications, litigation needs to be in reasonable prospect at the time when the document was created, and that the sole and dominant reason for obtaining such document was either to enable an advocate to advise as to whether a claim should be made or resisted, or to produce such document as evidence at trial. Advocates cannot take on an additional case without their client’s consent if such case touches upon a matter with regard to which the client has disclosed information to them during the provision of professional services. Advocates are not excluded from accepting a case, unless they honestly and justifiably believe that, in the exercise of their duties, they would find themselves in an embarrassing situation as a result of the trust demonstrated by another client to whom they had previously given advice regarding the matter in question. Advocates must without any time limitation respect the secrecy of all information and evidence entrusted to them by their clients.

If an advocate practises in a firm or partnership, the rules of confidentiality and legal professional privilege extend and apply to the entire firm or partnership and to all its members.

It should be noted that legal professional privilege applies only in relation to an advocate’s legal communications with his client and does not extend to any additional role the advocate may take up. For example, an advocate that holds the position of trustee or agent cannot withhold inspection of documents, claiming that the documents are privileged from inspection.

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

To the extent that in-house counsel are admitted to the Cyprus Bar, their communications with clients will be protected by legal professional privilege.

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

The Regulations will be applicable to foreign qualified lawyers when such lawyers are allowed or granted a licence by the Cyprus Bar to practise the legal profession in Cyprus.

How is legal professional privilege waived?

The Regulations explicitly provide that the legal professional privilege shall not apply where the advocate-client relationship aims at committing or assisting the commission of an illegal act, offence or crime. In such cases, the advocate-client communications cease to be considered privileged and the court has discretion to order the disclosure of the documents and/or information.

Furthermore, in the event that a client makes a complaint against his advocate, or if the advocate faces criminal or disciplinary action, the advocate is entitled to disclose any confidential information with regard to the accusation or the case, even if information confided to him by his client would thereby be disclosed.

Legal professional privilege may also be waived where the provisions of Prevention of Money-Laundering Activities Law 61(1)/1996 ('Money Laundering Law') apply. In particular, in the course of investigating the possible commission of offences for the purposes of inquiry in relation to the prescribed offences or in relation to inquiry for the determination of proceeds or instrumentalities, under the Money Laundering Law the court may on application of the investigator of the case make an order for disclosure.

Last modified 15 Jun 2016

Czech Republic

Czech Republic

What is protected by legal professional privilege?

The protection against seizure of documents on the premises of a lawyer covers all information provided between a client and a lawyer which is related to the proceedings and which was communicated either before or after the commencement of proceedings before the public authority. The protection of confidential information starts with the mere preparation for the representation in the proceedings, especially at the moment when the client turns to the lawyer and requests legal services.

There is no express regulation of 'protected' documents or communications. This is applicable to any spoken or written communications, documents or correspondence exchanged between a lawyer and their client. Any breach of this duty could lead to sanctions being imposed by the Chamber and under certain circumstances the lawyer can be held criminally liable.

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

In comparison with external independent lawyers, in-house lawyers are in a different situation, especially with respect to functional, structural and hierarchy reasons. Communications between a company and its in-house lawyer are not protected against seizure.

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

Current Czech case law does not provide any guidance as to the question of whether communications with foreign qualified lawyers are protected. Most likely, the national approach would follow the position of EU law, ie the answer would be that the lawyer must be qualified to practise law in a country of the EEA, unless there are any strong reasons for a deviating position (this could be the case, for example, if the relevant non-EEA qualified lawyer, advising in a relevant matter, was registered by the Chamber as a 'foreign attorney'). The protection is applicable to non-national qualified lawyers who are members of the Chamber.

How is legal professional privilege waived?

A lawyer can be exempted from the duty of confidentiality only by waiver of a client or after the client's death or after the winding-up by a legal successor. When the subject of the proceedings is a dispute between a client or their legal successor, the lawyer is not bound by the duty of confidentiality to the extent the information is required for proceedings taking place before the court or other authority.

The duty of confidentiality does not apply to the legally imposed duty of preventing criminal offences in cases set by the law.

Last modified 15 Mar 2019

Denmark

Denmark

What is protected by legal professional privilege?

The scope of legal professional privilege in administrative investigations conducted by the DCCA mirrors the principles of EU case law on legal professional privilege.

Legal professional privilege in criminal investigations conducted by the SEIC protects the lawyer from being required to give testimony and protects the lawyer’s written advice or the like from being searched or seized (Sections 794(3) and section 802(4) cf. section 170 of the Administration of Justice Act).

The lawyer’s written advice encompasses correspondence from the lawyer or the lawyer’s assistants to the suspect, including e-mails and telecommunications from a mobile phone. It does not cover the suspect’s own notes of any meeting(s) with their lawyer. During any police investigation at the premises of a suspect, the SEIC must be on hand to determine whether a document contains written advice from a lawyer. Where there is any doubt, the SEIC may seize the documents in question in the first instance in order to refer the matter for decision by the court. Any interference with the confidentiality between a suspect and their lawyer always requires a prior court order.

Provided that documents are created in the lawyer’s capacity as a lawyer they will fall under the scope of legal professional privilege. The court may, however, in special cases order a lawyer to disclose certain evidence, unless the lawyer is acting as criminal defence counsel. The lawyer is considered to be acting as criminal defence counsel from the moment the lawyer and the client could reasonably have known that the client would be charged with a crime.

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

Danish lawyers are allowed to keep the qualification of lawyer when they are employed as in-house counsel. However, as in-house lawyers take instructions from their employer they do not act independently, which means that communications made by in-house lawyers to their employers are not covered by legal professional privilege.

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

EU lawyers are generally given the same rights as Danish lawyers, but they can only appear before the Danish courts if they represent their client alongside a lawyer admitted to the Danish Bar. Law degrees from outside the EU are not recognised in Denmark. Communications made by lawyers qualified within the EU are therefore covered by legal professional privilege in Danish proceedings. Lawyers who have qualified outside the EU cannot rely on legal professional privilege in respect of their communications.

How is legal professional privilege waived?

Legal professional privilege under Danish law follows EU case law on legal professional privilege and can only be waived with the client’s instructions.

Legal professional privilege in the context of merger control

Merger control cases falling within the remit of the DCCA are conducted according to EU case law on legal professional privilege.

Last modified 16 Jul 2019

Egypt

Egypt

Legal professional privilege protects all communications between a professional legal advisor and their clients from being disclosed without the permission of the client. The privilege is solely for the benefit of the client, and not the lawyer. The objective of this legal principle is to protect one's access to the justice system by ensuring individuals can disclose all relevant information to their legal advisers without the fear that this disclosure may result in negative repercussions or prejudice them in the future.

A lawyer ceases to be bound by the requirements of legal professional privilege protection if the lawyer can demonstrate that documentation or information:

  • was in the public domain at the time it was disclosed to the lawyer;
  • entered the public domain subsequent to the time it was disclosed to the lawyer through no fault of the lawyer; or
  • was in the lawyer's possession free of any obligation of confidence at the time it was disclosed to the lawyer, evidenced by contemporaneous records.

A lawyer may disclose certain documents / information that would otherwise be protected by lawyer-client privilege to the extent such disclosure is required by a valid order of a court of other governmental body having jurisdiction, provided that the lawyer provides the client with reasonable prior written notice of such disclosure and makes a reasonable effort to obtain a protective order preventing or limiting the disclosure and/or requiring that the documents / information so disclosed be used only for the purposes required by law.

It is advisable that if parties are attempting to settle their dispute in Egypt, they should qualify any form of communications with statements to the effect that any offer or communication does not constitute an admission of liability. Parties should also seek an undertaking that any information contained within such communications will not be used as evidence.

It appears that the same privilege protections do not apply to in-house legal counsel advising officers, directors or employees of the company as they are not independent to the client. However, to protect this information, it is possible to enter into a confidentiality agreement between the employer and the employed in-house legal counsel.

Legal professional privilege in the context of merger control

Legal professional privilege has not been clearly defined within the context of merger control in Egypt.

Last modified 18 Sep 2019

England and Wales England and Wales

England and Wales

What is protected by legal professional privilege?

Litigation privilege

Litigation privilege affords a wider protection than legal advice privilege since, where it applies, it can protect communications with third parties as well as those between a lawyer and their client. It applies where adversarial proceedings are existing or are reasonably in prospect (for instance, where negotiations over a contractual issue are breaking down or one party sends or receives a formal letter before action). Enquiries by regulatory authorities, requests for staff to give witness evidence, third party disclosure orders and other investigative processes may not be considered adversarial, although regulatory proceedings in which judicial powers are being exercised are likely to be considered adversarial for these purposes. A good approach to determining whether proceedings are in prospect is to consider whether there is a legal issue to be determined as between the parties to the relevant process.

If adversarial proceedings are existing or reasonably in prospect, a 'dominant purpose' test will apply to protect as privileged all confidential documents prepared for the dominant purpose of giving or obtaining legal advice with regard to that litigation or aiding the conduct of that litigation. Determining the purpose of a document can be problematic, particularly as the test is one of dominance and not exclusivity. However, the court will assess the purpose of a document on an objective basis.

Litigation privilege has no retrospective effect.

Documents created before adversarial proceedings are reasonably in prospect will not attract litigation privilege (although they may attract legal advice privilege).

Legal advice privilege

If no adversarial proceedings are in contemplation, legal professional privilege will only attach to documents which constitute confidential communications between a lawyer and their client made for the purpose of giving or obtaining legal advice and documents which evidence such communications, including material forming part of the continuum of those communications. Each part of this test requires further explanation.

Communications

To attract legal advice privilege, a document must actually transfer information between a lawyer and their client or be intended for that purpose. A document which is not prepared for the purpose of being placed before a lawyer for the purpose of seeking legal advice or is not addressed and delivered to a lawyer specifically for advice may not constitute a communication. A statement prepared by an employee at the request of a manager to record the employee's recollection of events is unlikely to benefit from legal advice privilege – even if the employee believes that the document will be passed to lawyers for advice – since it is not a communication with a lawyer. The onward transfer of that statement by a client to their lawyer for advice would, however, benefit from legal advice privilege.

Lawyer

Includes all members of the legal profession: solicitors, in-house lawyers, barristers within the UK and duly accredited foreign lawyers (whether foreign in-house counsel who are not required to be a member of their local Bar would still qualify is currently untested). Where appropriate provisions for supervision are in operation, it can also include legal executives, paralegals and trainee solicitors.

A risk may arise in communications with in-house lawyers where the context of the communication relates to commercial rather than legal matters. Where that is the case, privilege will not apply. A further exception applies in relation to in-house lawyers, in that communications between them and their clients will not be protected by privilege in the context of European Commission competition investigations, on the basis that the in-house lawyers are not deemed to be sufficiently independent from their clients in those circumstances.

Client

Not every employee in a company will be the client for the purpose of attracting privilege. The 'client' will only comprise those few individuals who are authorised to obtain legal advice and who seek and receive legal advice from the lawyer, whether external or in-house. This might be an ad hoc committee or group formed to respond to a specific issue or incident, or it might be members of senior management. Often, however, those with direct knowledge of the facts or matters in issue will not fall within the concept of 'client' and particular care will therefore need to be exercised when interviewing or obtaining information from such employees.

Documents created for the purpose of giving or obtaining legal advice

Legal professional privilege only attaches to communications that give or seek legal advice as to what should prudently and sensibly be done in a relevant legal context. This includes advice on how best to present facts in light of legal advice given. In determining whether there is a relevant legal context, consideration should be given to whether the advice relates to 'the rights, liabilities, obligations or remedies of the client either under private law or under public law'. Privilege will not attach to advice which is purely commercial or strategic.

Difficulties arise when determining the status of copy documents and documents which are only privileged in part.

Further difficulties can arise if privilege has been impliedly or expressly waived. These issues are beyond the scope of this brief summary. Expert legal advice should be taken.

Legal professional privilege in the context of criminal investigations

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

Litigation privilege will apply in any case once it is clear that some form of prosecution or litigation arising from the investigation is in reasonable contemplation. Whether prosecution will be in reasonable contemplation is a factual question in each case and does not require a formal criminal investigation to have commenced or a decision to prosecute to have been made. Nor does it require the defendant to have full details of what might emerge in the investigation or complete certainty that proceedings will be initiated. Litigation privilege may also apply at an earlier stage, if the investigation process itself has become sufficiently adversarial so that the company under investigation effectively stands accused of wrongdoing and should, therefore, be able to claim litigation privilege over witness evidence gathered for the purpose of obtaining advice to defend itself.

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

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

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

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

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

Yes, except in the context of an antitrust and competition investigation by the European Commission.

An in-house lawyer must, however, take particular care to ensure that they distinguish clearly between advice which is legal and that which is commercial in nature, since the latter will not attract legal professional privilege. The in-house lawyer must also take care when instructing external lawyers to clearly identify and effectively manage the relevant lawyer / client relationships.

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

Yes, where the question of disclosure is governed by the law of England and Wales. Legal professional privilege applies to advice given by all duly accredited members of the legal profession. It is not necessary for the lawyer to be qualified in England and Wales. The question of whether this extends to in-house counsel in European jurisdictions where those counsel are not required to be members of their local Bar and whose advice in their own jurisdictions would not be protected by local professional secrecy laws remains to be determined by the UK courts.

Where the question of disclosure is governed by European law (such as in the context of an antitrust and competition investigation within the UK by the European Commission), only the advice of an independent lawyer qualified within the EEA is protected by legal professional privilege.

How is legal professional privilege waived?

Legal professional privilege is waived if the relevant material is placed before a court. It is also lost if the material in the document loses confidentiality or if the document came into being for the purpose of furthering a criminal or fraudulent scheme. A lawyer has a duty to protect a client’s legal professional privilege and cannot waive it without the client’s express authority.

It is possible to waive legal professional privilege on a selective basis so that disclosure to a third party of a privileged document will not mean that it ceases to be privileged for any other purpose. However, for a waiver to be selective, the terms of the disclosure must be clearly established in advance. This is a complex area. Always seek legal advice.

Legal professional privilege in the context of merger control

It is usual for merging parties to engage in pre-notification discussions with the CMA during which it is the CMA's practice to send the parties detailed questions concerning the transaction. Further questions from the CMA are likely after the formal Merger Notice has been submitted, for example, to respond to information concerning the transaction that the CMA has received from third parties such as customers of the merging parties. Such requests for information supplement the information that the parties are required to submit under the terms of the Merger Notice.  Once the filing is made, the CMA has wide statutory powers to require the parties to produce information and documents for the purpose of the investigation (section 109 of the Enterprise Act 2002). However, the parties are not required to disclose legally privileged documents. In the area of merger control (as in other areas of English law), privilege refers to legal advice privilege and litigation privilege discussed above.

Last modified 7 Mar 2019

Estonia

Estonia

What is protected by legal professional privilege?

The scope of legal professional privilege under Estonian law is considerably wide, covering the correspondence between the client and the lawyer (the member of the Bar Association) in the course of court proceedings, pre-trial procedure or any other legal procedure, legal counselling and executing of any other legal act in the interests of the client ('Legal Services'). This means that legal professional privilege applies to all the information revealed in the correspondence between the client and the lawyer related to the provision of Legal Services and not only to the correspondence related to the right of defence in the courts. Therefore, all documents and information created within the scope are protected by legal professional privilege – there are no rules as to the specific time the documents or information has to be created.

All rights and obligations under legal professional privilege are valid without term. The immunity of the information mediums related to the provision of Legal Services also applies to the information mediums in the possession of the client. As described in more detail above, the protection of legal professional privilege may be limited in the context of criminal investigations and investigations by the Competition Board, but not in civil litigation.

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

Legal professional privilege covers also the employees of the law offices and Bar Association and public officials who have acquired information covered by legal professional privilege in the course of their professional activity. Furthermore, the clients of the lawyers are covered as well regarding the immunity of the information mediums. Persons other than the above-mentioned do not enjoy legal professional privilege (eg in-house counsel).

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

With regard to foreign lawyers, the Bar Association Act stipulates that the lawyer, who has the full legal right to act as a lawyer in another EU Member State and is not a member of the Estonian Bar Association, must comply, when acting in Estonia, with all the professional and ethics requirements set for lawyers who are members of the Bar Association. The rights and obligations under legal professional privilege serve as an integral part of the professional requirements set for the members of the Bar Association and are therefore applicable also to the EU Member State lawyers.

How is legal professional privilege waived?

Although, as a rule, the lawyer and other obliged persons are bound by the obligation without term to keep all the information received in the course of providing Legal Services confidential, there are a couple of exceptions:

  1. A client or its legal successor may release an obliged person from the confidentiality obligation.
  2. The obliged person may file before the chair of the administrative court or before the administrative judge (appointed by the chair) a reasoned written application for releasing him from the confidentiality obligation in order to prevent a crime of first degree. However, the judge may refuse to grant approval.

Last modified 4 Aug 2016

European Union

European Union

There are two conditions that must be satisfied in order for a written communication to be protected by EU legal professional privilege:

  1. The written communications must be made for the purposes and in the interests of the client's rights of defence.
  2. The written communications must emanate from an independent lawyer qualified to practise in a jurisdiction of the European Economic Area (EEA), that is to say a lawyer who is not bound to the client by a relationship of employment.

Communications with in-house counsel are thus not protected by EU legal privilege, even where the in-house lawyer is a member of the relevant bar association or law society, and irrespective of in-house counsel's status under national law. The Court of Justice of the EU held that an in-house counsel's relationship as an employee of the company by its very nature does not allow them to ignore the commercial strategies pursued by their employer. Communications with lawyers qualified outside the EEA are not protected.

In applying the two conditions set out above, the Court of Justice of the EU has recognised three categories of documents protected by EU legal professional privilege:

  1. Written communications emanating from an independent EEA-qualified lawyer to their client exchanged after the initiation of an administrative procedure by the European Commission. This category also covers earlier written communications which have a relationship with the subject matter of the administrative procedure.
  2. Notes internal to the client which report or reproduce the advice given to them by an independent EEA-qualified lawyer. The advice needs to be given for the purposes and in the interests of the client's rights of defence (ie after the initiation of an administrative procedure by the European Commission, or having a relationship with the subject matter of the administrative procedure).

    The client should be cautious not to include in the internal notes their opinions on or amendments to the legal advice provided by the external EEA-qualified lawyer. These will not be protected by EU legal professional privilege.
  3. Preparatory documents, even if they were not exchanged with a lawyer or were not created for the purpose of being sent physically to a lawyer, provided they were drawn up exclusively for the purpose of seeking legal advice from a lawyer in exercise of the rights of defence.

    Such preparatory documents may include, for example, working documents or summaries prepared as a means of gathering information which will be useful, or essential, to the external EEA-qualified external lawyer for understanding the context, nature or scope of the facts for which their assistance is sought.

    This category of documents is construed restrictively. EU legal professional privilege will apply to such preparatory documents only where they were drawn up exclusively for the purpose of seeking legal advice from an external EEA-qualified lawyer in exercise of the rights of defence. It is for the client relying on EU legal professional privilege to prove that the document in question was drawn up with the sole aim of seeking legal advice from a lawyer. This must be unambiguously clear from the content of the document itself or the context in which the document was prepared and found.

    As explained in the EU submission to the OECD paper on the "Treatment of legally privileged information in competition proceedings" from November 2018, the protection may even apply in cases where the documents were not exchanged with a lawyer at the time of the request by the Commission or were not created for the purpose of being sent physically to a lawyer.

Further, the EU's submission to the OECD paper adds that merely marking a document as "Legally privileged" does not mean that the document is actually protected by legal professional privilege. A justification as to why the document is protected will still be required.

EU legal professional privilege does not prevent a lawyer's client from disclosing the written communications between them if the client considers that it is in their interest to do so. Waiving EU legal professional privilege vis-à-vis the European Commission while reserving it vis-à-vis others is possible.

The protection of EU legal professional privilege may thus differ substantially from legal professional privilege protection under national laws. For example, EU legal professional privilege does not protect legal advice emanating from in-house counsel. This is in contrast to national rules on legal professional privilege protection in Belgium, Greece, the Netherlands, Norway, Portugal, England and Wales and other jurisdictions. EU legal professional privilege protects only correspondence made for the purposes and in the interests of the client's rights of defence. In some jurisdictions, the protection of legal professional privilege covers a wider range of legal advice. EU legal professional privilege protects communications with EEA-qualified lawyers only, while the national rules in England and Wales protect communications with any lawyer. In some jurisdictions, the national rules offer a narrower protection than EU legal professional privilege.

For example, under national legal professional privilege rules in Germany, only communications created after the initiation of an investigation are protected.

Companies and their lawyers need to be aware of these differences and understand the risks they are exposed to in their jurisdictions of operation. It is therefore of utmost importance to have correct internal procedures dealing with legal professional privilege and to appreciate the differences between the various regimes of legal professional privilege.

Last modified 1 Apr 2019

Finland

Finland

What is protected by legal professional privilege?

The scope of protection is to some extent dependent on whether the information has been obtained in connection with legal proceedings or other advisory tasks. Subject to these prerequisites, there are no general limitations as to the types of documents and correspondence that fall within the scope of protection. Information which must be kept confidential covers nearly any piece of information that is not known to public.

Likewise, the point of time on which the documents were prepared or sent by the client is not as such relevant as long as there is a connection to legal proceedings (unlicensed non-advocate lawyers or licensed legal counsel and advocates) or other advisory tasks (licensed legal counsel and advocates only) and the information has been obtained in the lawyer’s capacity as a legal advisor.

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

This is not entirely clear. The preparatory works of the Code of Judicial Procedure maintain that the above-described prohibition for advocates and licensed legal counsel to testify regarding information obtained in connection with other tasks than legal proceedings must be interpreted in line with the judgment of the European Court of Justice in case C-550/07 P, which clarified that only independent, non-employee lawyers are protected. However, it is unclear whether the same applies to information obtained by in-house lawyers in their capacity as attorney or counsel of the employer in legal proceedings.

In the field of competition law, section 38 subsection 3 of the Competition Act maintains that communications with in-house lawyers within a company or group do not fall within the scope of protection as section 38 subsection 3 only covers correspondence between an external counsel and the client. Furthermore, the preparatory works of the Competition Act specifically maintain that legal professional privilege does not cover advice provided by in-house counsel.

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

As far as information related to legal proceedings is concerned, Finnish legislation does not differentiate between national and non-national lawyers in terms of protection as long as the lawyer has obtained the information in their capacity as an attorney or counsel.

Protection of information obtained in connection with other advisory tasks is more equivocal as the rules are linked to the adviser’s professional status stipulated by Finnish legislation. According to the Advocates Act, anyone entitled to practice advocacy in one of the member states of the European Economic Area (EEA) is, when representing a client before a court of law or an authority or when pursuing other activities in Finland, bound to observe the rules of professional conduct in force in Finland, including its obligations relating to professional secrecy. Similarly, the provisions concerning advocates in Finnish law and the Decision of the Ministry of Justice on the by-laws of the Finnish Bar Association apply to an advocate registered in the EU register (see footnote 1). Therefore, legal professional privilege applies at least to non-national advocates registered in the EU register as well as other qualified EEA lawyers pursuing activities in Finland. For other situations the legal status is not as clear and the limits of the personal scope of privilege have not to our knowledge been tested in legal praxis.

Privilege of communications with a non-EEA adviser is likewise uncertain in Finland as applicable legislation only refers to an advocate in the meaning of a member of the Finnish Bar Association or an advocate qualified within the EEA.

Footnote 1: The EU register is administered by the Finnish Bar Association. A lawyer qualified to practice advocacy in another EU member state may enter the EU register to practice advocacy in Finland by using the professional title afforded by that other member state.

How is legal professional privilege waived?

The privilege may be waived by the client or another party, whose interests are protected by the rules. There are no requirements as to the form of the permission.

There are also certain statutory exceptions to the protection of legal professional privilege. Chapter 15, section 10 of the Finnish Criminal Code (39/1889) lays down a duty to report to authorities or to the person in danger a serious offence the preparation of which the person with the duty to report has knowledge of. Likewise, the Act on Detecting and Preventing Money Laundering and Terrorist Financing (503/2008) includes disclosure duties which may override lawyers' confidentiality obligations. Also, the Advocates Act provides that an advocate must openly and truthfully supply the information required by the Disciplinary Board of the Finnish Bar Association in supervisory matters regardless of the possible confidential nature of the information.

Legal professional privilege in the context of merger control

Everything stated in the section 'Legal professional privilege in the context of investigations by the antitrust / competition authority' applies also to merger control investigations.

Last modified 15 Mar 2019

France

France

What is protected by legal professional privilege?

Pursuant to Article 2 of the Réglement Intérieur National (RIN) of the French Bar Council, French professional secrecy applies in all matters, whether advisory or contentious. Secrecy applies no matter when a document was created, and regardless of the medium, whether physical or electronic (paper, fax, email, etc).

Professional secrecy covers:

  • legal opinions addressed by lawyers to their clients
  • correspondence between lawyers and their clients, and between lawyers – except correspondence identified as 'official' meeting notes and, in general, all the elements of lawyers’ files, including all information provided to lawyers in the exercise of their profession
  • clients’ names and lawyers’ agendas
  • payment of fees, and
  • information required by statutory auditors 

To ensure professional secrecy applies, it should be made clear that the document has either been drafted by or is intended for a lawyer, and has been prepared in connection with the request for or provision of legal advice.

Note that, in accordance with recent case law, the involvement of a lawyer in an electronic communication between non-lawyers (for instance when the lawyer is copied in on an email) is not, in itself, sufficient to make such exchange subject to professional secrecy .

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

As a matter of French law, in-house lawyers (juristes d’entreprise) are considered to be a separate profession and do not enjoy the same status as members of the Bar (avocats). Under French law, in-house counsel are subject to professional secrecy obligations regarding information that can be characterized as 'business secrets' received within the framework of their position within the company. In-house counsel are also prohibited from voluntarily sharing with non-authorized third parties legal advice they provide to the company they work for. A breach of this obligation is deemed a criminal offence (Article 226-13 of the French Criminal Code).

Nonetheless, French courts do not extend the full professional secrecy coverage to communications between in-house counsel and employees, officers or directors of a company in the context of obtaining legal advice. The European Court of Justice confirmed this principle in the Akzo Nobel judgment in an EU competition context. As a result of the French courts' position and the Akzo Nobel judgment, French authorities investigating antitrust and competition law issues can make use of internal company legal advice. Furthermore, in-house counsel (unlike external lawyers) are obliged to testify if called or to provide evidence regarding their employers.

Lastly, the French Cour de Cassation recently decided that French law will be applicable to determine whether legal professional privilege applies to communications with in-house counsel from other jurisdictions, not the local law of the country in which the communication was made.

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

Communications between French lawyers and foreign lawyers will be subject to professional secrecy only if certain precautions are taken (Article 3 RIN).

For EU lawyers, such precautions may consist of clearly marking communications as 'confidential' and / or entering into a confidential agreement covering any, or specified types of, communication (Article 5.3.1 of the Code of Conduct for Lawyers in the European Union).

The French Cour de Cassation has ruled that, whether professional secrecy covers communications between lawyers registered in two different countries, will depend on an analysis of the provisions of the applicable foreign laws.

How is legal professional privilege waived?

A client can opt to use a document covered by professional secrecy, but the client cannot release the lawyer from their professional secrecy obligations. Professional secrecy may, however, be waived in the interest of the defence of the client or in the interest of the defence of the lawyer where they are personally facing judicial proceedings. In the latter circumstance, the production of protected documents must be essential to the lawyer’s defence.

Legal professional privilege in the context of merger control

Legal professional privilege in the context of merger control has not been clearly defined. There is no case law on this point so far, though it has been mentioned in the context of antitrust investigations by the French competition authority (Decision n°07-D-49 of 19 December 2007) and by several courts (eg see Cour de Cassation on 24 April 2013 , Société Medtronic France, n° 12-80331 and Appeal Court of Paris, 8 November 2017, Whirlpool France, RG n°14/133844).

However, legal professional privilege cannot be disregarded within the context of merger control. Given the lack of jurisprudence, the general definition of legal privilege, as set out in Article 66.5 of Law 71-130 (see further above), should apply.

Last modified 1 Apr 2019

Georgia

Georgia

What is protected by legal professional privilege?

The Ethics Code contains general (catch-all) provisions on the scope of professional secrecy applicable to lawyers without providing any details as to the type or content of information/documents protected. In particular, the Ethics Code stipulates that a professional secret comprises any information that:

  • the lawyer receives from a client
  • the lawyer gave to the client, or
  • the lawyer obtained from other sources in relation to the client’s case.

Neither the Law on Advocates nor the Ethics Code provide the details of the type or content of information protected by professional secrecy applicable to lawyers; rather, any information that meets the conditions above is covered.

Georgian law does not regulate professional secrecy applicable to lawyers according to different spheres of law. Rather, there is a general legal professional privilege regulation that applies to any legal context (whether civil, criminal or competition-related).

The Law of Georgia on Advocates is silent on the issue of when documents need to be created in order for them to be covered by the professional secrecy obligations. We believe, however, that the document/information becomes protected the moment it is shared between the client and the advocate within the scope of advocacy activities. Therefore, no matter when the document is created, when it is handed to the advocate by the client for the purposes of receiving legal advice or representation, it becomes protected.

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

No, but in-house counsel can be obligated to be bound by professional secrecy, for example under their employment contract.

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

No, communications with foreign qualified lawyers are not protected. Professional secrecy applicable to lawyers applies to advocates only, ie Georgian citizens that are qualified to practise law in Georgia and are members of the Association of Advocates of Georgia. An advocate under the Law on Advocates must:

  • be a Georgian citizen
  • have a higher legal education degree
  • have passed an advocate’s test, and
  • have at least one year’s work experience as a lawyer or advocate’s assistant.

Further, under the same Law, an advocate must be a member of the Association of Advocates of Georgia.

How is legal professional privilege waived?

A lawyer may disclose confidential information in the following circumstances:

  • if the client consents to the disclosure
  • if disclosure during advising/representing the client is justified and is necessary to protect the client’s interests, provided that the client has not prohibited the lawyer from disclosing this information in advance
  • if disclosure is necessary for a lawyer to defend himself against claims brought against him, or
  • if disclosure is necessary in order for him to obtain his legal fees.

Last modified 6 Jun 2016

Germany

Germany

What is protected by legal professional privilege?

Civil litigation

Since the protection of documents in civil litigation is mainly based on professional secrecy obligations pursuant to section 43a (2) BRAO, the scope of legal professional privilege mirrors the scope of application of the professional secrecy provisions and therefore covers any document or other material that has become known to the lawyer in their professional relationship with the client, irrespective of its specific type or content.

In civil litigation, the general distinction between lawyers and in-house counsel must be borne in mind, too. The professional secrecy obligation pursuant to section 43a (2) BRAO is not applicable to in-house counsel and therefore cannot prevent the production of documents if ordered. Exceptions may exist where it can be shown that the in-house counsel acts independently from their employer.

As regards foreign qualified lawyers, only correspondence with lawyers enrolled at the German Bar is protected. Lawyers from other jurisdictions within the European Union are deemed equivalent as far as they meet the prerequisites set out in the German European Attorney Act (Gesetz über die Tätigkeit europäischer Rechtsanwälte in Deutschland — EuRAG). Correspondence with other foreign lawyers does not, in general, fall within the scope of the protection.

Criminal law / internal investigations

As regards the effective right of defence and the seizure prohibition based on the right to refuse testimony, the correspondence which shall not be seized must relate to the client's defence. Investigation proceedings must be initiated, the suspected person (ie the client) must be aware of those proceedings and the correspondence must be prepared and / or exchanged within the scope of an existing instruction with regard to the respective proceedings.

As regards correspondence which has been prepared and / or exchanged before the initiation of the respective proceedings, there is in general, under German law, no seizure prohibition, even if the correspondence relates to the subject matter of the procedure.

As regards the seizure prohibition based on the right to refuse testimony, section 97 (2) StPO provides that the person who is entitled to refuse testimony must be in the possession of the correspondence in question. According to legal practice, section 148 StPO has to be taken into account if the entitled person is the defence lawyer. It provides that the suspected person must be freely permitted to correspond with their defence lawyer. In view of this provision, seizure of correspondence is, in deviation from section 97 (2) StPO, even prohibited if the respective correspondence is in the client's possession, as long as it concerns the client's defence. It is also prohibited to seize documents which are in the possession of the client and recognisably prepared by the client for the purpose of defence.

The seizure prohibition does not apply if the lawyer is suspected of having participated in the infringement. Legal professional privilege, in general, only applies to lawyers enrolled in the German Bar. Exceptions only apply to lawyers from other EU Member States if they meet the prerequisites of the German European Attorney Act.

More complex is the situation with regard to internal investigations of a company. There are no explicit provisions for internal investigations, but there are a number of contradictory regional court decisions. Mid of 2018 the Constitutional Court in Germany clarified at least to some extent if a Public Prosecutor's Office can reach out to attorney work products in the context of an internal investigation (for details please see below). In addition, the legislator is currently planning new legislation covering inter alia legal standards and safeguards for internal investigations.

Competition law

The rules set out above for criminal law apply also to competition law investigations.

Legal professional privilege in the context of merger control

In essence there is no legal privilege concerning documents produced by outside counsel in merger control proceedings. Merger control in Germany is an administrative procedure. Based on Section 57 et seq Act on Restraints of Competition (ARC), the German Federal Cartel Office (FCO) may require information from the parties to the merger. In addition to the obligatory information required for a filing (Section 39 ARC), the FCO may collect any evidence gathered pursuant to an investigation, (Secton 57 ACR). The FCO has the power to conduct investigations, send RFIs and require submission of documents relating to the economic situation of the undertakings concerned (Section 59 ACR) and seize documents (Section 58 ACR).

However, the applicability of privilege when answering questions, RFIs or producing documents related to the proceedings (eg management presentations, emails etc) is limited and has not yet been fully tested before the courts. There have been suggestions to extend the EU concept of Legal Professional Privilege to German merger control (and other administrative) proceedings. However, in practice, as described above, correspondence with external counsel is not protected from seizure and, therefore, may legally be subject to a request for disclosure if such correspondence is in the possession of the person concerned. If the correspondence is only in the possession of the external counsel, there is arguably no obligation to submit those documents.

Any request by the FCO is, however, subject to the concept of proportionality. Thus, it may not be appropriate to require the disclosure of correspondence with external counsel if the information can be obtained in a comparable way by other means or if the reason(s) for requiring the information do not justify the request.

A party may refrain from giving responses which may be self-incriminating when responding to FCO requests (Section 55 StPO).

Last modified 15 Mar 2019

Greece

Greece

What is protected by legal professional privilege?

According to Article 38 of the (new) Code of Lawyers, lawyers should keep in confidence anything entrusted to them by their clients at the time of their engagement as well as in the course of the execution of their clients’ mandate or whatever comes to their knowledge while dealing with their clients’ cases.

All data (verbal, written, electronic, etc.) obtained in the course of legal practice and the correspondence between the lawyer and the client is treated by the law as privileged – unless such data is in the public record – even after the termination of the lawyer-client relationship, and cannot be used even for the purposes of judicial proceedings.

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

The legal professional privilege protection applies equally to the communications with in-house counsel as there is no specific legislation on the matter and the Code of Lawyers does not distinguish between in-house counsel and independent lawyers. In principle, they are all subject to the local Bar and fall under the same ethical and disciplinary rules. It should be noted that lawyers in Greece are not considered to be 'employees'.

Even as in-house counsel, they remain independent legal professionals providing legal services against 'remuneration' even if such remuneration is monthly and of a fixed amount. However, and under the impact of EU jurisprudence, it should be considered whether the lawyer is bound to the client by a relationship of employment. Due to the fact that in everyday practice in-house counsel are 'not bound to the client by a relationship of employment', it is accepted that their communication with the business is also protected by legal professional privilege. However, in cases where 'exclusive employment' exists and in-house counsel in the exercise of their duties participate in administrative decisions or exercise administrative duties, their communication with the business is not covered by legal professional privilege, when their particular function does not constitute provision of legal services. Generally speaking, each case is being decided ad hoc and the practice tends to recognise privilege rather than to deny it.

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

The Code of Lawyers does not differentiate between Greek and EU nationals (who can practise law in Greece under permit of the local Bar association, PD 130/23.05.2000) as to the application of legal professional privilege. Third country nationals cannot qualify as lawyers in Greece with the exception of Greek expatriates following special permit by the Ministry of Justice and respective Bar Association. Given that standard EU jurisprudence shall be respected, communications, other than correspondence, between a Greek (or EU) in-house legal counsel and lawyers outside the EU (third countries) are not covered by legal professional privilege.

Legal professional privilege is a concept and an institution of public order, deriving and protected by the Constitution, and therefore, in principle, it is afforded special status (as all public order rules) and cannot be derogated from without specific legislation and it cannot be waived. Parties sometimes waive such protection by consent, but such waiver is not binding and enforceable.

Overall, legal professional privilege applies to every aspect of the legal profession, irrespective of proceedings and without differentiation between independent lawyers and in-house counsel, save for specific exceptions prescribed by law. However, in the context of competition law investigations by the Commission, it has become accepted that legal professional privilege does not apply to communication between in-house counsel and the business.

Last modified 2 Mar 2015

Hong Kong

Hong Kong

What is protected by legal advice privilege?

Letters and other communications passing between a party and their lawyer are privileged from production if they are, and sworn to be:

  • Confidential
  • Written to or by the lawyer in their professional capacity, and
  • For the purpose of getting legal advice or assistance for the client

Legal advice privilege applies to communications between a lawyer and their client. It does not provide protection for communications with an independent third party. However, legal advice privilege does extend to information that the lawyer receives in a professional capacity from a third party and which the lawyer conveys to their client.

In addition to confidentiality, a document or communication must also be made for the purpose of getting legal advice before legal advice privilege can apply.

The purpose of getting legal advice has been construed broadly. Where information is passed between a lawyer and their client as part of a process aimed at keeping both informed, so that advice may be sought and given, legal professional privilege will attach. Moreover, legal advice is not confined to telling the client the law; it may include advice about what should prudently and sensibly be done in the relevant legal context.

Where the client appoints employees to communicate with their lawyer, those employees are the client for the purpose of legal advice privilege. Information provided to the lawyer by any other employee of the client for the dominant purpose of obtaining legal advice will also attract legal advice privilege.

Where legal advice privilege applies to lawyer-client communications, internally circulated documents or parts of documents revealing such communications are also privileged.

What is protected by litigation privilege?

Litigation privilege is wider than legal advice privilege. It not only covers communications between a lawyer and their client, but also covers the communications between a lawyer and their non-professional agent, a lawyer and a third party or the client and their agent or third party, provided that:

  • They came into existence after litigation is commenced or contemplated, and
  • They are for the dominant purpose of giving or obtaining legal advice, obtaining or collecting evidence or obtaining information which may lead to the obtaining of such evidence

These two requirements must be satisfied before litigation privilege can be applied.

Litigation refers to proceedings in court and tribunals, arbitration, disciplinary proceedings and any other adversarial proceedings. It must be 'adversarial' as opposed to investigative or inquisitorial. Hence, where a proceeding is merely fact-gathering or where a tribunal is an administrative one, it is unlikely that litigation privilege can be claimed.

The application of the 'dominant purpose' test can be problematic:

  • If the relevant communication came into existence for more than one purpose, and
  • In deciding at what stage it can fairly be said any such purpose is obtaining advice in anticipated litigation

In analysing the dominant purpose, it is important to turn to the facts of the particular case. Hong Kong courts have in the past examined 'purpose' from an objective standpoint, examining all the relevant evidence, including reference to the intention of the actual author or creator of the relevant document (or the person under whose direction it was made) at the time when the document is brought into existence.

If a document or communication has not come into existence for the purposes of the litigation, but is already in existence before the litigation is contemplated or commenced, litigation privilege does not apply even if it was obtained by the client or their lawyer for the purposes of the litigation. Hence, a pre-existing document not entitled to legal advice privilege does not become privileged merely because it is handed to a lawyer for the purposes of litigation.

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

Yes. The definition of 'professional lawyer' for the purpose of legal advice and litigation privilege includes all members of the legal profession:

  • Solicitors
  • Barristers
  • In-house lawyers, and
  • Foreign lawyers

Communications between the in-house lawyer and the management and employees of the same company are therefore prima facie entitled to enjoy legal professional privilege and / or litigation privilege in a similar way to those of private lawyers.

Legal advice privilege however cannot be sufficiently established based on the mere fact that a party to a communication is a lawyer. The lawyer must be acting in a professional capacity as a lawyer. Therefore, if an in-house lawyer is consulted about anything other than the law, or where legal advice had been given on a social rather than professional basis, legal advice privilege will not be attached to such advice.

Moreover, an in-house lawyer should take particular caution if, apart from being a legal adviser, they hold other positions within the company (such as an executive or operational role). If the lawyer is consulted in their capacity as a business adviser about commercial issues, legal advice privilege will not apply.

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

Yes. Legal advice privilege exists between a foreign lawyer and their client to the same extent as the legal advice privilege exists between a Hong Kong lawyer and their client. The approach to determining the question of legal advice privilege is the same as adopted for communications with Hong Kong lawyers.

How is legal professional privilege waived?

Privilege is in all cases the privilege of the client and not of the lawyer, and it may only be waived expressly or impliedly by the client. Privilege is considered waived if the relevant document or communication is included in the depositions filed in the course of a court action or in the transcripts of other notes of court proceedings.

Hong Kong law also incorporates the concept of partial waiver of privilege. If a privileged document is disclosed for a limited purpose only (eg for investigation by a regulator such as the Securities and Futures Commission), it does not follow that privilege is waived generally. The privilege is waived for that particular purpose only.

Legal professional privilege in the context of merger control

Legal professional privilege has not been clearly defined within the context of merger control in Hong Kong. Currently, only the telecommunications sector is subject to merger control in Hong Kong. As of 14 December 2015, the applicable merger control rules are contained in Schedule 7 of the Competition Ordinance (Chapter 619, Laws of Hong Kong). There are no Hong Kong cases on merger control so far. Nevertheless, legal professional privilege has been recognised as a substantive right and cannot be disregarded within the context of merger control proceedings.

Last modified 15 Mar 2019

Hungary

Hungary

What is protected by legal professional privilege?

It can generally be stated that documents enjoy the protection regardless of the point in time at which they were created due to the nature of the secrecy obligation described above. Generally, there is no specific rule with regard to the type of documents or contents protected. Attorney-client privileged information may include any and all facts, information and data obtained by the legal practitioner during the course of carrying out their professional duties.

In competition law procedures, it is generally irrelevant when the document was created, provided it is labelled as privileged lawyer-client communication with the caveat that a court may rule otherwise if it can be established from the contents of the document in question that it was created for the purpose of abusing legal professional privilege.

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

In-house counsel (including bar association legal counsel and legal clerks) may only benefit from the protections of legal professional privilege if they are practising law (eg endorsement or legal representation) under the Hungarian Act on Legal Practice. However, bar association legal counsel and legal clerks are not bound by any obligations of confidentiality towards their employer (or any persons specified by this employer or their client) in circumstances in which the privileged information was obtained during the course of their employment.

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

Regarding lawyers

European Community jurists who permanently practice law in the territory of Hungary have to, in the course of their activities, comply with the provisions of the Act on Legal Practice and the Hungarian Bar Association regulations.

The Act on Legal Practice also governs the activities of European Community jurists who provide temporary services with regard to legal representation. The activities of European Community jurists who provide temporary services in Hungary other than legal representation are governed by the laws of the EU Member State where the European Community jurist is registered. In case of such European Community jurists, the Act on Legal Practice and the regulations of the Hungarian Bar Association would be applicable notwithstanding the lack of a permanent practice in the territory of Hungary.

Foreign (non-EEA) qualified lawyers are only subject to the Hungarian Act on Legal Practice if they practice law (eg endorsement or legal representation) in Hungary and are registered as foreign legal counsel at the Hungarian Bar Association.

Regarding in-house counsel

Legal professional privilege rules deriving from the Act on Legal Practice would apply to the activities of any non-national in-house counsel practising law (eg endorsement or legal representation) in Hungary as registered in-house counsel.

How is legal professional privilege waived?

Generally the client can grant an informed waiver of the professional secrecy obligation owed by lawyers. However, in criminal proceedings, even upon the informed consent of the client, the lawyer may not disclose confidential information they obtained in their capacity as a defence lawyer.

Other remarks

Legal trainees registered with the Hungarian Bar Association are covered in the same way as fully licensed lawyers are.

Legal professional privilege in the context of merger control

Legal professional privilege has not been clearly defined within the context of Hungarian merger control. Hungarian case law on legal professional privilege relates to cartel proceedings and there is no Hungarian case law for merger cases so far. Nevertheless, legal professional privilege has an increased importance within the context of merger control proceedings, because the Hungarian Competition Authority has been empowered to conduct dawn raids also in merger control proceedings since 2018.

As far as we know there were only one inspection in the form of dawn raid conducted in merger control proceedings so far, however companies have to set up to protect their internal strategic documents if they contain legal professional privilege. Since the communications coming from attorneys and bar association legal counsels benefit from the protections of legal professional privilege, by incorporating within these communications information obtained by other professionals (such as economic advisors), is a possible way of extending the legal professional privilege to other professionals. It shall be esured however, that no communications take place directly between the undertaking and the other professionals without adding an attorney or bar association legal counsels to the communication flow.

Last modified 15 Mar 2019

Indonesia

Indonesia

What is protected by legal professional privilege?

The concept of legal professional privilege in Indonesia is generally contained in Article 19 of the Advocates Law. Article 19 of the Advocates Law provides that:

  • 'Lawyers must keep confidential anything known or acquired from their client as a result of their professional relationship, unless otherwise stipulated by law'.
  • 'Lawyers have the right to confidentiality of their relationship with their client, including the protection of related files and documents from seizure or inspection, and protection against the tapping of their electronic communications' (unofficial translation).

The broad wording of Article 19 of the Advocates Law ensures that all types of documents, regardless of the document’s contents or creation date, are covered by legal professional privilege so long as the document was obtained by the lawyer as a result of the lawyer-client relationship. Importantly, Article 4 (h) of the Advocates’ Code of Ethics ensures that legal professional privilege extends after the lawyer-client relationship has ended, stipulating that:

'Advocates are obliged to hold the confidentiality of their position relating to matters that are informed by the client based on trust and are obliged to uphold such confidentiality after the advocate client relationship has ended' (unofficial translation).

The Advocates’ Code of Ethics also protects the confidentiality of documents and correspondence between lawyers and colleagues if the document or correspondence is headed 'Sans Prejudice'. Article 7 of the Advocates’ Code of Ethics provides that documents headed 'Sans Prejudice' are excluded from the general stipulation that lawyers’ documents and correspondence with colleagues may be shown to the judge if deemed necessary.

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

The Advocates Law and the Advocates’ Code of Ethics apply to any person who professionally provides legal services either inside or outside court and meets the requirements of the Advocates Law.

Legal professional privilege generally does not apply to communications between an employee of a company and in-house counsel. Despite varied opinions regarding the valid application of legal professional privilege under the Advocates Law, common practice demonstrates that in-house legal advisers are deemed to be employees of the enterprise and hence fall beyond the scope of Article 19 of the Advocates Law and the Advocates’ Code of Ethics.

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

A foreign lawyer is defined as a lawyer who is a foreign national carrying out his profession in Indonesia. Article 24 of the Advocates Law expressly provides that foreign lawyers are subject to the Advocates’ Code of Ethics and prevailing legislation. However, legal professional privilege does not apply to correspondence between clients and foreign lawyers. Nonetheless, correspondence marked 'Sans Prejudice' cannot be shown to the judge. Further, settlement negotiations of foreign lawyers cannot be used for evidential purposes.

How is legal professional privilege waived?

Although Article 19 provides that legal professional privilege may be effectively diminished by law, Indonesian legislation generally protects client-lawyer legal professional privilege. Hence, the scope of legal professional privilege is similar in civil litigation, criminal prosecution and Antimonopoly Law investigations. Notably, however, lawyer-client legal professional privilege may be undermined by:

  • Article 42 Paragraph 2 of Law No. 36/1999 on Telecommunications ('Telecommunications Law')
  • Article 36 of Law No. 31/1999 on the Eradication of the Criminal Act of Corruption as amended by Law No. 20 of 2001 ('Corruption Law')

Article 42 Paragraph 2 of Telecommunications Law

Article 42 paragraph (2) of the Telecommunications Law potentially reduces the scope of legal professional privilege in criminal prosecution. The provision states that: “With respect to the criminal justice court process, telecommunications service providers may record information they send or receive and may present the necessary information, if there is:

  • A written request from the Attorney General and/or the Republic of Indonesia’s Chief of Police with respect to a certain criminal act, and/or
  • A request from the investigator in charge of a particular criminal action that conforms to the prevailing legislation' (unofficial translation).

Pursuant to Article 42 paragraph (2) of the Telecommunications Law, legal professional privilege of lawyer-client electronic communications may be ignored if the Chief of Police or Attorney General opines that the communication may be used to support a criminal allegation.

Article 36 of Corruption Law

Further, Article 36 of the Corruption Law states: 'The obligation to give testimony as referred to in Article 35 also applies to those who by profession, dignity or position keep secrets, except for religious officers who keep secrets in accordance with their religion' (unofficial translation).

Despite the plain wording of the provision, it is generally considered that Article 36 does not apply to lawyers who are acting in their professional capacity as legal representative of the accused in a corruption proceeding.

It is also important to note that under Law No. 30/2002 regarding the Commission for the Eradication of Corruption Criminal Practices ('Law No. 30'), it is stated that the Corruption Eradication Commission (Komisi Pemberantasan Korupsi or KPK) may tap and record conversations for the purposes of examination, investigation and prosecution of corruption crimes. Law No. 30 does not specifically exclude lawyer-client communications, hence the tapping and recording provisions of Law No. 30 diminish protections provided under Article 19 of the Advocates Law.

Last modified 20 Aug 2016

Israel

Israel

Legal professional privilege protects all communications between professional legal advisers and their clients from being disclosed without the permission of the client. The privilege is solely for the benefit of the client and not the lawyer. The objective of this legal principle is to protect one's access to the justice system by ensuring individuals can disclose all relevant information to their legal advisers without the fear that this disclosure may result in negative repercussions or prejudice them in the future.

A lawyer ceases to be bound by the requirements of legal professional privilege protection if they can demonstrate that documentation or information:

  • Was in the public domain at the time it was disclosed to the lawyer;
  • Entered the public domain subsequent to the time it was disclosed to the lawyer through no fault of the lawyer; or
  • Was in the lawyer's possession free of any obligation of confidence at the time it was disclosed to the lawyer, evidenced by contemporaneous records.

A lawyer may disclose certain documents / information that would otherwise be protected by lawyer-client privilege to the extent such disclosure is required by a valid order of a court or other governmental body having jurisdiction, provided that the lawyer provides the client with reasonable prior written notice of such disclosure and makes a reasonable effort to obtain a protective order preventing or limiting the disclosure and/or requiring that the documents / information so disclosed be used only for the purposes required by law.  

Under Israeli law (pursuant to both the Bar Association Law 1961 and the Evidence Ordinance [New Version] 1971), all matters or documents exchanged between a client and their lawyer, pertaining to the professional service granted by the lawyer to their client, are privileged. Accordingly, communications between in-house legal counsel of a company and  its officers, directors or employees, pertaining to legal services rendered by the in-house legal counsel to their client – the company – are privileged.

The fact that the in-house legal counsel is an employee of the company is irrelevant and does not influence the application of privilege.

However, the communication is privileged only if both the officers, directors or employees are acting on behalf of the company and the communication relates to matters falling within the professional lawyer-client relationship between the in-house legal counsel and the company. In instances where privilege applies, it is absolute, and can only be waived by the client.

Legal professional privilege in the context of merger control

Legal professional privilege has not been clearly defined within the context of merger control in Israel.

Last modified 18 Sep 2019

Italy

Italy

What is protected by legal professional privilege?

Confidentiality of written communications between lawyers and clients should be protected under two cumulative conditions:

  • Information exchange with the lawyers must be connected to the right of defence of the client concerned
  • Such information exchange must emanate from an independent lawyer who is not bound to the client by any employment relationship

Similar to the situation under EU law, the legal basis for legal professional privilege in Italy derives from the confidential character of the relations between a lawyer and their client. Legal professional privilege covers written communications exchanged after the launching of a competition investigation, although it extends to previous written communications which are linked to the subject matter of such procedures.

Legal professional privilege covers all written communications, including information stored electronically. It does not cover any written communications which illustrate the external lawyer’s opinion although is not written by them.

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

Legal professional privilege does not cover communications between a client and its in-house lawyer. Indeed, the employment relationship with the client could affect the lawyer’s ability to exercise their professional independence by taking into account the commercial strategies of their employer. Italian administrative case law has confirmed that legal professional privilege is limited to the communications between the defendant and their external lawyers (TAR Latium, sec. I, 9 September 2012, No. 7467).

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

Legal professional privilege in Italy applies without distinction to any lawyer that is entitled to practise law in one of the EU Member States.

How is legal professional privilege waived?

A party may choose to waive legal professional privilege in a document or part of a document which is helpful to their case.

Legal professional privilege in the context of merger control

Italian case law on legal professional privilege relates to infringement proceedings. To date there have not been any cases in the Italian courts relating to the question of privilege in merger control proceedings.

However, since Italian case law acknowledges the applicability of the principle of 'legal professional privilege' to the ICA's investigative activity, it is arguable that the same principle also applies in the context of merger control proceedings.

Last modified 15 Mar 2019

Japan

Japan

What is protected by legal professional privilege?

The scope of the Confidentiality Obligation is not clearly delineated but it is limited to confidential information which the lawyer has come to know in the course of their work with clients. The obligation is not just limited to secret information which the client believes will not be disclosed but includes any information that a reasonable person would expect to be held in confidence. It should also be noted that the obligation continues after a case is completed or if a case is transferred to another lawyer, regardless of whether the client has paid the lawyer for the lawyer’s work. In addition, the Confidentiality Obligation may extend beyond the client to cover information about third parties if that information is learned of during a lawyer’s representation of a client.

There is no provision in Japanese law regarding the timing of the creation of protected documents as long as the documents contain the confidential information of other people which the lawyer has been entrusted with and of which they retain or possess in the course of their duties.

There is no limitation regarding the types of documents protected as long as the documents contain the confidential information of other people which the lawyer has been entrusted with and retains or possesses in the course of their duties.

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

In-house counsel have similar rights and obligations with respect to confidential information that private lawyers have in Japan. In-house counsel are subject to the same obligations and have the same rights not to divulge confidential information regarding their employers (provided the in-house counsel is a licensed lawyer). Pursuant to the Code of Attorney’s Ethics, in-house counsel are expected to perform their duties as freely and independently as possible within their enterprises or organisations (Article 50). If in-house counsel comes to know information regarding some unlawful conduct, they should take appropriate action within the enterprise or organisation, ie report the issue to their superior. However, the in-house counsel is not required to disclose confidential information outside their enterprise or organisation under the Code (Article 51).

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

The Confidentiality Obligation applies to a foreign qualified lawyer registered as a Foreign Lawyer (Gaikokuhou-Jimu-Bengoshi) under the Foreign Lawyers Act (Law No. 66 of 1986, Article 50.1, which stipulates that the provisions in Articles 23 to 30 of the Attorney Act shall apply to a registered Foreign Lawyer). Similar to the treatment of Japanese lawyers, if a foreign qualified lawyer violates the Confidentiality Obligation, they could be disbarred by the JFBA (Articles 51 and 52) and this violation is subject to imprisonment of up to 6 months or a fine of up to JP ¥100,000 (Article 67).

How is legal professional privilege waived?

The Confidentiality Obligation may cease to exist in the following situations:

  • When the client permits the lawyer to disclose the confidential information
  • When the client clearly intends to commit a crime and the threat of the client carrying out this intent is high, or
  • Where the lawyer faces accusations regarding the matter in which the information was learned of and disclosure is necessary to protect the lawyer from claims or damages

The Confidentiality Obligation in Japan applies to information in the lawyer’s possession, not necessarily information created by the lawyer but no longer in the lawyer’s possession. Therefore, if documents created by a lawyer are held by a third party, including the client, the documents will not be subject to the Confidentiality Obligation.

What are the differences between the scope of legal professional privilege in civil litigation, criminal investigations, and antitrust and competition law investigations?

While refusal rights are protected in civil litigation and criminal investigations, there is no special protection guaranteed in antitrust and competition law investigations. Also, in criminal cases, even where the confidentiality has not been waived by the person in question, if the refusal is deemed to be an abuse of rights wholly for the interests of the accused (unless the person is the accused), the lawyer may not exercise the refusal right (ie if there is no confidential information to be protected for the person in question and the only reason for the refusal is to decriminalise the accused, the lawyer cannot assert the refusal right).

Legal professional privilege in the context of merger control

Whether the protections afforded by Legal Professional Privilege apply in particular merger control proceedings depend on the type of action being brought. As noted above, if the action is based on a competition law investigation, fewer protections are granted and Legal Professional Privilege may not apply. However, Legal Professional Privilege may apply if criminal proceedings are brought pursuant to any investigation.

Last modified 15 Mar 2019

Kuwait

Kuwait

Legal professional privilege protects all communications between a professional legal adviser and their client from being disclosed without the permission of the client. The privilege is solely for the benefit of the client and not the lawyer. The objective of this legal principle is to protect one's access to the justice system by ensuring individuals can disclose all relevant information to their legal advisers without the fear that this disclosure may result in negative repercussions or prejudice them in the future.

A lawyer ceases to be bound by the requirements of legal professional privilege if the lawyer can demonstrate that documentation or information:

  • Was in the public domain at the time it was disclosed to the lawyer;
  • Entered the public domain subsequent to the time it was disclosed to the lawyer through no fault of the lawyer; or
  • Was in the lawyer's possession free of any obligation of confidence at the time it was disclosed to the lawyer, evidenced by contemporaneous records.

Notwithstanding the lawyer-client privilege, a lawyer may disclose certain documents / information to the extent such disclosure is required by a valid order of a court or other governmental body having jurisdiction, provided that the lawyer provides the client with reasonable prior written notice of such disclosure and makes a reasonable effort to obtain a protective order preventing or limiting the disclosure and/or requiring that the documents / information so disclosed be used only for the purposes required by law.  

The concept of legal professional privilege in the State of Kuwait is limited only to the professional relationship between a lawyer and their client, through the lawyer’s obligation to keep confidential all information disclosed by their client (pursuant to Kuwait Law No. 42/1964 organizing the legal profession). Accordingly, the relationship between a lawyer and their client benefits from a limited scope of privilege because the parties are independent entities and the lawyer, of course, owes a duty of confidentiality to the client.

It appears that the same privilege protections do not apply to in-house legal counsel advising officers, directors or employees of the company as they are not independent to the client. However, to protect information or communications passing between in-house counsel and the employer, it may be possible for a confidentiality agreement to be put in place.

Legal professional privilege in the context of merger control

Legal professional privilege has not been clearly defined within the context of merger control in Kuwait.

Last modified 5 Aug 2019

Latvia

Latvia

What is protected by legal professional privilege?

As explained above, the scope of legal professional privilege covers the sworn attorney-client relations even after the termination of the relations. To elaborate, it follows from the law that all postal and telegraph correspondence and documents, as well as the information systems and means of communication, including electronic means of communication, which sworn attorneys have received or prepared in providing legal assistance cannot be requested for submission to the government authorities, except in cases where it falls under the competence of the Office for Prevention of Laundering of Proceeds Derived from Criminal Activity in the light of the Law on Prevention of Money Laundering and Terrorist Financing as mentioned above.

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

Concerning the communications with in-house counsel, presently there is no specific legal framework for activities of an in-house counsel in Latvia. A sworn attorney may act as an in-house counsel only in conjunction with a cooperation agreement with a company. In this case, his professional activities fall within the general protection of the legal professional privilege as described before. It should be noted that according to the Advocacy Law a sworn attorney relying on the protection of legal professional privilege shall provide legal assistance independently and cannot enter into employment relations with the client. This is reflected in the opinion of the European Court of Justice in case C-550/07P, Akzo Nobel Chemicals, Akcros Chemicals Ltd v. European Commission, and case 155/79, AM&S v. European Commission, provided that the correspondence between the client and the lawyer is legal professional privilege if it relates to the written correspondence between the client and the lawyer whose relations are not bound by the employment agreement.

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

In Latvia, a qualified lawyer from another EU Member State may provide legal assistance only upon registration with the Latvian Council of Sworn Advocates and upon receipt of a permit to perform a professional activity. Afterwards the foreign qualified lawyer may participate in criminal court proceedings only in cooperation with a Latvian sworn attorney. Alternatively, if the Latvian Council of Sworn Advocates recognises the professional qualification of the foreign qualified lawyer from another EU Member State as sufficient to be able to practise independently (upon passing an examination on knowledge of the Latvian language and Latvian legislation), such foreign qualified lawyer has the same rights and obligations as a Latvian sworn attorney. Therefore, the regulatory framework for legal professional privilege applies only to the foreign qualified lawyers from another EU Member State who have obtained the aforesaid recognition with the Latvian Council of Sworn Advocates.

How is legal professional privilege waived?

Legal professional privilege may be waived based on the obligation for a sworn attorney to notify the government authorities on particular client cases that may be detrimental to public interests and in order to prevent activities related to money laundering and terrorism financing. The obligation does not cover the cases when a sworn attorney defends or represents a client in relation to such transactions in out-of-court criminal proceedings or court proceedings or when they provide legal advice on the initiation of the court proceedings or evading thereof. The Law on the Prevention of Money Laundering and Terrorist Financing prohibits informing the client about such notification of the government authority on suspicious and unusual transactions. This prohibition is aimed at preventing elimination of evidence. Ultimately, under the Law on Prevention of Money Laundering and Terrorist Financing, the Office for Prevention of Laundering of Proceeds Derived from Criminal Activity may request information regarding client transactions from a sworn attorney; in such case, legal professional privilege is waived under the law.

Additionally, according to Article 315 of the Criminal Law, a sworn attorney is obliged to notify government authorities of the preparation of a crime in case there is valid and true information precluding any doubts that the crime could be committed. The Criminal Law establishes criminal liability for a failure to notify. At the same time, the duty of a sworn attorney is to discourage the client from committing such crime.

Last modified 1 Aug 2016

Lebanon

Lebanon

Legal professional privilege protects all communications between professional legal advisers and their clients from being disclosed without the permission of the client. The privilege is solely for the benefit of the client, and not the lawyer. The objective of this legal principle is to protect one's access to the justice system by ensuring individuals can disclose all relevant information to their legal advisers without the risk that this disclosure may result in negative repercussions or prejudice them in the future.

A lawyer ceases to be bound by the requirements of legal professional privilege protection if they can demonstrate that documentation or information:

  • Was in the public domain at the time it was disclosed to the lawyer;
  • Entered the public domain subsequent to the time it was disclosed to the lawyer through no fault of the lawyer; or
  • Was in the lawyer's possession free of any obligation of confidence at the time it was disclosed to the lawyer, evidenced by contemporaneous records.

A lawyer may disclose certain documents / information that would otherwise be protected by lawyer-client privilege to the extent such disclosure is required by a valid order of a court or other governmental body having jurisdiction, provided that the lawyer provides the client with reasonable prior written notice of such disclosure and makes a reasonable effort to obtain a protective order preventing or limiting the disclosure and/or requiring that the documents / information so disclosed be used only for the purposes required by law.  

As is the position with most civil law jurisdictions in the Middle East, there are no express privilege rules in Lebanon and parties are able to, in theory, adduce in evidence any document which may support their position. Instead, the concept of legal professional privilege in Lebanon is limited only to the professional relationship between a lawyer and their client, through the lawyer's obligation to keep confidential all communications passing between the lawyer and their client.

It appears that the same privilege protections do not apply to in-house legal counsel advising officers, directors or employees of the company as they are not independent to the client. However, to protect this information, it is possible to enter into a confidentiality agreement between the employer and the employed in-house legal counsel.

Legal professional privilege in the context of merger control

Legal professional privilege has not been clearly defined within the context of merger control in Lebanon.

Last modified 18 Sep 2019

Lithuania

Lithuania

What is protected by legal professional privilege?

The law sets the following prohibitions pertinent to the protection of a lawyer’s professional secret:

  • it shall be prohibited to summon a lawyer as a witness or to give explanations as to the circumstances which came to his knowledge in the pursuit of his professional activities
  • it shall be prohibited to examine, inspect or take a lawyer’s practice documents or files containing information related to his professional activities, examine postal items, wiretap telephone conversations, control any other information transmitted over telecommunications networks and other communications or actions, except for the cases when the advocate is suspected or accused of a criminal act (the latter exception covers only the documents related to the allegations or charges made against the lawyer), and
  • it shall be prohibited to be familiarised, overtly or covertly, with the information comprising a lawyer’s professional secret and use it as evidence.

For the purposes of the latter, the law specifies that the lawyer’s professional secret shall encompass the fact of consulting the lawyer, the terms of the contract with the client, the information and data provided by the client, the nature of consultation and the information collected by the lawyer by order of the client (the list is not exhaustive). Despite its wide scope, neither the law nor the current court practice provides for a clear response as to whether the lawyer’s professional secret also encompasses the client’s internal communications made for the purposes of seeking legal advice or reporting this within the client’s organisation.

It is established court practice, however, that legal professional privilege covers only those communications between the lawyer and the client which are not made public; if such communications are public, they cannot be protected by legal professional privilege. It is also understood that the client has a right to waive the protection under legal professional privilege. The lawyer, however, has a right to waive the protection under legal professional privilege only in cases provided for by the law.

The duty to preserve a lawyer’s professional secret is only imposed on, and the above prohibitions only apply in respect of, a regulated legal professional who is authorised to pursue his professional activities under the professional title of 'advokatas' (in English: 'advocate'), ie a member of the Lithuanian Bar, or under the professional title of 'advokato padėjėjas' (in English: 'advocate’s assistant'), ie a candidate member of the Lithuanian Bar.

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

Other legal professionals, including in-house counsel, are not covered by legal professional privilege in Lithuania. In practice, however, there are cases when an external lawyer is exclusively engaged by the client for the provision of legal services to that client (without becoming the client’s employee). Such lawyer is currently covered by legal professional privilege.

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

Legal professional privilege would usually extend to legal professionals originating from the EU Member States who are lawfully practising in Lithuania. The laws, however, do not extend legal professional privilege to other foreign (non-EU) legal professionals.

Last modified 5 Sep 2016

Luxembourg

Luxembourg

What is protected by legal professional privilege?

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

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

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

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

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

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

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

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

How is legal privilege waived?

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

In recent cases, the court has:

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

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

  • they determine that this disclosure is in the best interests of their client; and
  • their client has authorized them to do so after having been duly informed of the nature of the information to be disclosed and the proposed recipients of the information.

There may also be situations where a 'state of necessity' or other principles take precedence over professional secrecy thereby releasing a lawyer from their obligations of legal professional privilege. An explicit reference to the 'state of necessity' was mentioned in a previous version of the 2013 Regulation (and may still be found in the 2005 Regulation) but it is generally considered that this principle remains applicable despite its omission from the 2013 Regulation.

Last modified 15 Mar 2019

Macedonia

Macedonia

What is protected by legal professional privilege?

The obligation to produce documents in the possession of a lawyer and the lawyer’s obligation to appear in court as a witness are regulated in the legislation concerning civil and criminal proceedings. When a lawyer appears in court as a defence counsel or representing a person in civil proceedings, the court cannot order the lawyer to give evidence as a witness or to produce documents. Generally speaking, any requirement to produce documents or other written materials in court proceedings (including civil and criminal proceedings) would be subject to the obligations of a lawyer to observe professional secrecy.

The lawyer may disclose information that is a professional secret, and was confided to him by his client, only if the client unequivocally permits it; if it is in the interest of the defence (necessary for the defence); and when he requests it and gets permission from the Bar Association.

Regarding communications with foreign lawyers, lawyers from other states can provide legal aid and legal activities performed in the Republic of Macedonia under conditions of reciprocity. That means that the obligations for professional secrecy apply in such cases also because the Statute of the Macedonian Bar Association provides that providing legal advice and performing legal activities in the territory of the Republic of Macedonia by lawyers and law firms from EU Member States is in accordance with the Law on Legal Practice.

Last modified 12 Aug 2016

Malta

Malta

What is protected by legal professional privilege?

The rules mentioned earlier concerning civil litigation and criminal investigations and proceedings, do not specifically mention documents, but it is likely that the position regarding documents would be similarly privileged.

In the context of police investigations, the police may not seize items that are subject to 'legal professional privilege'. This extends to any communication between a 'professional legal adviser' and his client or any person representing his client and any document or record enclosed with or referred to in such communication and made in connection with the giving of legal advice or in connection with or in contemplation of legal proceedings and for the purposes of such proceedings.

In the context of investigations by the competition authority, they cannot order the production of any document or the disclosure of any information that is covered by the duty of professional secrecy.

Various special laws include professional secrecy and/or legal professional privilege as a limitation of a public authority’s powers of investigation. For example, in the context of investigations carried out by the Attorney General in connection with money laundering or funding of terrorism, any investigation order does not confer any right to production of, access to, or search for communications of professional confidence between an advocate or legal procurator and his client. Broadly similar limitations to powers of investigation exist also in various fiscal laws.

Outside the context of the above-mentioned general and special laws and in the absence of any other special law referring to legal professional privilege, advice and documents would be protected within the limits of the duty of confidentiality owed by professionals in general:

  • The duty covers any 'secret' confided in the lawyer or legal procurator
  • The duty of confidentiality continues after the lawyer or legal procurator has ceased to exercise his profession
  • The duty of confidentiality extends to employees, partners and assistants of the lawyer or legal procurator entrusted with the secret
  • The lawyer or legal procurator may disclose secret information in good faith to the extent that is required for the specific purpose of defending himself against any claim with regard to professional work, or to initiate and maintain judicial proceedings in order to pursue lawful claims or interests, and
  • The lawyer or legal procurator may be compelled to disclose information when required to do so by a competent law enforcement authority investigating a criminal offence or a breach of duty, or by a court of criminal jurisdiction prosecuting a criminal offence, or if ordered by a court to disclose secret information pursuant to an express provision of law for the specific purpose for which that provision was enacted, or for the specific purpose of preventing, disclosing or detecting the commission of acts that amount or are likely to amount to a criminal offence (except in the circumstances referred to in Article 588 of the Code of Civil Procedure and Article 642 of the Criminal Code referred to above).

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

In dealing with legal professional privilege, the law does not distinguish between independent lawyers and in-house counsel. The code of ethics applicable to the legal profession, in dealing with professional secrecy, does not distinguish between lawyers in private practice and lawyers in employment. In view also of the strong culture of legal professional secrecy, it is thought that the same obligation of professional secrecy, and the same confidentiality, must apply also to in-house counsel.

In the particular context of competition law investigations, however, the Competition and Consumer Appeals Tribunal will refer, for purposes of interpretation, to the judgments of the Court of Justice of the EU, and to relevant decisions of the European Commission, including statements and secondary legislation. In a recent decision, the Competition and Consumer Appeals Tribunal referred to European Commission rules relating to Commission proceedings as being applicable to domestic proceedings. Therefore, in the case of communications with in-house counsel in antitrust and competition proceedings, it may be that EU rules on legal professional privilege apply.

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

The formulation of the general duty of professional secrecy in Article 257 of the Criminal Code, as elaborated on in the Professional Secrecy Act, are wide enough to include foreign-qualified lawyers.

It is thought that the legal professional privilege referred to above arising from Article 588 of the Code of Civil Procedure would not apply to foreign-qualified lawyers. The article applies specifically to lawyers and legal procurators and therefore appears to refer only to persons holding a warrant to practise as such in Malta.

It is thought that the legal professional privilege referred to above, arising from Article 642 of the Criminal Code, could apply also to foreign-qualified lawyers, because the article applies to lawyers and legal procurators, and also to those persons who are by law bound to secrecy respecting circumstances in which evidence is required.

The legal professional privilege arising from the Criminal Code in the context of police investigations refers to professional legal advisers and therefore appears to apply also to foreign-qualified lawyers.

The Competition Act in the context of limitation of powers in antitrust and competition investigations refers to documents or information which may be subject to the duty of confidentiality, and therefore it appears that this extends to foreign-qualified lawyers. Other special laws differ in their wording, and therefore one would have to examine each instance on a case-by-case basis.

How is legal professional privilege waived?

Legal professional privilege does not apply to documents held with the intention of furthering a criminal purpose. A lawyer may not waive his client’s legal professional privilege without his client’s authorisation.

Last modified 19 Aug 2016

Mexico

Mexico

What is protected by legal professional privilege?

Under Mexican law, lawyers are not obliged to stand as witnesses or submit documentation or information in their possession related to a client regarding civil and criminal procedures opened against it (this is not applicable for antitrust and competition procedures). Documents and information protected by legal professional privilege are those created, exchanged or disclosed during the professional services rendered by the lawyer, independently of their content.

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

Communications with in-house counsel are protected under legal professional privilege under the same rationale.

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

Under Mexican law, foreign lawyers without authorisation to exercise law in Mexico are not considered professional, therefore legal professional privilege does not apply to them.

How is legal professional privilege waived?

Legal professional privilege may only be waived by the client. There is no specific form provided for in Mexican law, nevertheless written proof shall be provided when requested by a governmental authority or a court of law. Lawyers who breach legal professional privilege shall repair the damage caused to their clients and may be subject to civil and criminal sanctions.

Last modified 10 Oct 2016

Morocco

Morocco

What is protected by legal professional privilege?

The protection of a document by legal professional privilege is neither determined by the date of its creation, nor its type nor its content but by the quality and the role of its author and / or its recipient. Thus, legal professional privilege applies to communications between a lawyer and client regardless of the timing of creation and the format of the communication.

Furthermore, legal professional privilege also applies to communications between two lawyers for the matters of their respective clients except if the lawyers expressly state in their communications that they are ‘not confidential’.

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

Moroccan law does not attribute to in-house counsel a special legal status and consequently this function does not benefit from the privileges granted to the lawyers.

In-house counsel are bound by the provisions of the above mentioned article 446 of the Moroccan criminal code but, unlike the lawyers, the in-house counsel cannot invoke this article to refuse disclosing information in their possession if duly requested to do so by a judicial or an administrative authority.

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

From the perspective of the foreign-qualified lawyer, if a communication with their client benefits from legal professional privilege in accordance with their national legislation, they will be entitled to refuse disclosure of such information to Moroccan authorities.

From the perspective of the client, we are of the opinion that they will not be able to beneficiate from the legal professional privilege as if the lawyer was Moroccan because the Moroccan authorities would state that the Dahir 1.08.101 dated on 20 October 2008 enacting the law 28-08 organizing the profession of lawyer and the legal professional privilege therein applies only to Moroccan lawyers.

How is legal professional privilege waived?

The legal privilege protection has been put in place to protect the interests of the client. Thus, the client may waive it. There is no particular format for that, provided that the waiver is explicit and made by the client having the full knowledge of the consequences of such waiver. It is the duty of the lawyer to inform the client about the consequences of such waiver.

Legal professional privilege in the context of merger control

In the context of merger control, the above mentioned principles and rules also apply.

Last modified 15 Mar 2019

Netherlands

Netherlands

What is protected by legal professional privilege?

No specific requirements exist regarding the moment of creation of documents in order to fall under the scope of legal professional privilege. In particular, documents specifically prepared for the purpose of seeking legal advice or to be used in the context of providing legal advice fall under the scope of legal professional privilege.

In principle, any type of information is covered by legal professional privilege, including letters, emails, phone calls and digital data. Documents or objects that form an integral part of an offence or that were used to commit the offence, and objects that are not in the possession of the lawyer in their professional capacity, fall outside the scope of legal professional privilege.

The lawyer will assess whether information falls under the scope of legal professional privilege. This assessment needs to be respected unless the claim for legal professional privilege cannot be reasonably correct.

Are in-house counsel protected by legal professional privilege?

Under Dutch law, in-house counsel who are admitted to the Dutch Bar (so-called 'Cohen advocaten') may invoke legal professional privilege, provided that it is clear from the documents that the in-house counsel acted in their capacity as advocaat. In-house counsel who are admitted to the Bar of another country can only claim legal privilege in the Netherlands if a written staff regulation signed by the in-house counsel and their employer guarantees the same level of independence as applies to in-house counsel who are Dutch Bar members. Communications with and advice from an in-house counsel who is not admitted to the Bar, always fall outside the scope of legal professional privilege.

With regard to EU competition law investigations led by the European Commission, however, the rules of EU legal professional privilege apply, pursuant to which in-house lawyers cannot invoke legal professional privilege whether or not they are admitted to the Bar.

Are other (non-lawyer) advisers protected by legal professional privilege?

No. Even though in some cases, as mentioned above, documents produced by non-lawyer advisers (such as economists) may be protected by legal professional privilege, in these cases privilege is derived from that of the lawyer. In relation to such documents, non-lawyers cannot assert legal privilege as a justification for a refusal to cooperate with an investigation. Only the lawyer from whom the legal privilege is derived is able to claim legal privilege. Non-lawyers cannot, therefore, refuse to provide documents but if they indicate that a document is covered by legal privilege the authority must ask the lawyer’s opinion before reviewing the document in question. If the lawyer confirms that it is covered by legal privilege, the situation will be treated similarly as if the document had been directly requested from the lawyer.

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

Privileged information in the possession of lawyers who are admitted to the Bar of another country, whether inside or outside the EU, is protected under legal professional privilege to the extent that such lawyers are bound to confidentiality by their home legal system (see in the context of a criminal investigation the judgements of the Oost Brabant District Court of 26 March 2014 (ECLI:NL:RBOBR:2014:3420) and of the Rotterdam District Court of 7 October 2019 (ECLI:NL:RBROT:2019:7856)).

How is legal professional privilege waived?

Legal professional privilege can be waived by the client or by the lawyer (albeit, in principle, only with their client’s consent). For instance, the lawyer can:

  • Give permission for seizure of documents, or
  • Set aside legal professional privilege by testifying in a court voluntarily.

Last modified 11 Nov 2019

New Zealand

New Zealand

What is protected by legal professional privilege?

All types of privilege protect a wide variety of interaction, including oral communications and documents (except privilege in relation to lawyers’ trust accounts, which applies only in relation to documents). However, privilege does not extend to communications made or received for a dishonest purpose or to assist a person to commit an offence.

Lawyer / client privilege protects communications between a client and their legal adviser where the communication is intended to be confidential and is made for the purposes of requesting or obtaining legal advice. This includes documents prepared with a view to being used as a communication for the purpose of obtaining legal advice, although not in fact so used, or as an aide-memoire for more effective communication. An amendment to the Evidence Act in 2016 clarified that this privilege applies to a person who requests legal services whether or not the person actually receives such services. The privilege also attaches to documents such as drafts and working papers, and has been found to attach to fee notes issued by legal advisers. Where such a communication is made or received by the agent of either party, it will also be protected by this privilege. Lawyer / client privilege is owned by the client.

Litigation privilege is wider than lawyer / client privilege. It protects information and communications made, received, compiled or prepared for the dominant purpose of preparing for court proceedings during the time that those proceedings are either afoot or reasonably apprehended (the ‘mere possibility’ of litigation being insufficient to attract the legal professional privilege). Litigation privilege protects communications made between the party and any other person, and the party’s legal adviser and any other person. It also protects information compiled or prepared by the party or the party’s legal adviser or by any other person, at the party’s request or the legal adviser’s request, for the dominant purpose of preparing for the court proceedings. For example, communications between a party's lawyer and the party's expert for the dominant purpose of preparing for a proceeding are privileged, as is information compiled and prepared by the expert at the request of the party or its lawyer for the proceeding. As with lawyer / client privilege, litigation privilege is owned by the client.

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

Both lawyer / client privilege and litigation privilege will apply in respect of communications with and / or information made, received, compiled or prepared by in-house counsel, provided they hold a current practising certificate and are acting in their capacity as legal adviser (as opposed to simply an executive of the company). Litigation privilege may also apply in respect of correspondence with or information prepared or compiled by the in-house counsel for the dominant purpose of preparing for a proceeding, even where the in-house counsel is not acting in their capacity as legal adviser (provided that the communication is between, or the information is prepared at the request of, the party and the party’s legal adviser).

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

Lawyer / client privilege and litigation privilege both extend to overseas practitioners if they are either a person who is a barrister or lawyer in Australia or a person who is entitled under the laws of another country, to undertake work that in New Zealand is normally undertaken by a lawyer or patent attorney. This will include somebody with a current practising certificate, or equivalent, in an overseas country.

How is legal professional privilege waived?

Privilege is relatively easily lost by express or implied waiver. Privilege can be waived by producing or disclosing any significant part of the privileged material in circumstances that are inconsistent with a claim of confidentiality. Privilege may therefore be waived in respect of material which is disclosed without an express requirement that it remain confidential.

Privilege can also be waived by putting the privileged material ‘in issue’ in a proceeding. This generally occurs where a party seeks to rely upon privileged material in a proceeding (eg as justification for an action taken by that party), or where a witness gives evidence which introduces the privileged material into the proceeding. Waiver in this context would require greater disclosure than the bare fact that the person acted ‘on legal advice’.

Legal professional privilege in the context of merger control

The Commerce Commission, the regulator in New Zealand responsible for merger control, has powers to compel the provision of information to it. However, where the Commerce Commission compels the production of documents, those documents that are protected by lawyer / client privilege (and litigation privilege, if any) do not have to be provided.

It is important to review documents being provided to the Commerce Commission, or any other regulator, to ensure that privileged material is withheld, and not inadvertently provided to the Commission. If privileged material is provided to the Commission, it may be argued that any privilege in the document has therefore been waived.

Last modified 15 Mar 2019

Norway

Norway

What is protected by legal professional privilege?

In order to be considered privileged, the information must be communicated to the lawyer in their capacity as a lawyer, ie in connection with obtaining legal advice. The lawyer / client legal professional privilege does not apply to information a lawyer receives when acting in another capacity, for instance as a member of a company’s Board of Directors.

As such, legal professional privilege applies for all types and contents of documents, provided they satisfy the above criteria. However, in criminal investigations, legal professional privilege cannot be invoked if it leads to an innocent person being convicted or a serious crime being executed.

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

Under Norwegian national law, communications with in-house counsel are protected by legal professional privilege as described above. Under EEA/EU law, however, information given to in-house counsel is not protected by legal professional privilege. The result of this is, for instance, that if a dawn raid is undertaken by the ESA (which falls within the scope of EEA/EU law), any in-house counsel at the company in question cannot invoke legal professional privilege. However, whilst in-house counsel may not be able to claim that their communications are protected by legal professional privilege in the context of investigations by the ESA, they may seek to do so in the context of an investigation by the Norwegian Competition Authority.

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

Legal professional privilege applies regardless of the lawyer’s nationality. In a case where an in-house counsel of a US-corporation had prepared certain strategy documents in connection with a dispute, it was held that sections containing legal considerations and assessments of litigation risk were to be considered as privileged information, cf. decision by the Appeals Selection Committee of the Supreme Court, 22 December 2000 (see footnote 1).

Footnote 1: Rt-2000-2167

How is legal professional privilege waived?

Legal professional privilege may be waived by the party receiving the advice and / or having submitted the privileged information. Such waiver should be made in writing.

If a lawyer is sued by a client for alleged malpractice, the lawyer is free to disclose privileged information to the extent that this disclosure is necessary for their defence. However, information received under a specific confidentiality agreement cannot be divulged even in such cases.

Legal professional privilege in the context of merger control

There is currently no specific case law concerning the application of legal professional privilege in the context of merger control in Norway, but the general principle of legal privilege as explained above would nevertheless be relevant.

Last modified 15 Mar 2019

Oman

Oman

Legal professional privilege protects all communications between a professional legal adviser and their client from being disclosed without the permission of the client. The privilege is solely for the benefit of the client and not the lawyer. The objective of this legal principle is to protect an individual's access to the justice system by ensuring they can disclose all relevant information to their legal adviser without the fear that this disclosure may result in negative repercussions or prejudice them in the future.

A lawyer ceases to be bound by the requirements of legal professional privilege protection if the lawyer can demonstrate that documentation or information:

  • Was in the public domain at the time it was disclosed to the lawyer;
  • Entered the public domain subsequent to the time it was disclosed to the lawyer through no fault of the lawyer; or
  • Was in the lawyer's possession free of any obligation of confidence at the time it was disclosed to the lawyer, evidenced by records at the time of disclosure.

Notwithstanding the lawyer-client privilege, a lawyer may disclose certain documents / information to the extent such disclosure is required by a valid order of a court or other governmental body having jurisdiction, provided that the lawyer provides the client with reasonable prior written notice of such disclosure and makes a reasonable effort to obtain a protective order preventing or limiting the disclosure and/or requiring that the documents / information so disclosed be used only for the purposes for which the law or regulation required.  

The concept of legal professional privilege in the Sultanate of Oman is limited only to the professional relationship between a lawyer and their client, through the lawyer’s obligation to keep confidential all information disclosed by their client (pursuant to Article 44 of the Omani Advocacy Law). Accordingly, the relationship between a lawyer and their client benefits from a limited form of privilege because the parties are independent entities and the lawyer, of course, owes a duty of confidentiality to the client.

It is advisable that if parties are attempting to settle their dispute in Oman, they should qualify any form of communications with statements to the effect that any offer or communication does not constitute an admission of liability. Parties should also seek an undertaking that any information contained within such communications will not be used as evidence in any subsequent proceedings.

It appears that the same privilege protections do not apply to in-house legal counsel advising officers, directors or employees of the company as they are not independent to the client. However, to protect this information, it is possible to enter into a confidentiality agreement between the employer and the employed in-house legal counsel.

Legal professional privilege in the context of merger control

Legal professional privilege has not been clearly defined within the context of merger control in Oman.

Last modified 25 Jul 2019

Poland

Poland

What is protected by legal professional privilege?

The scope of the legal professional privilege protection of the client is narrower under Polish criminal law than the concept under EU law. The professional secrecy of lawyers concerns knowledge and documentation in the possession of the lawyer only. As a result, documents relevant to a case are protected only when they are kept by a lawyer, not by clients. Therefore, it does not protect from disclosure of documents in the client’s possession, even if they contain relevant information related to providing legal services in relation to criminal investigation.

With regard to competition proceedings, Polish competition law refers to the concept of legal professional privilege in case of dawn raids. The protection also applies to the documents that are in the possession of the client.

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

There is no separate law concerning the secrecy of in-house lawyers. Therefore, the above-mentioned comments apply to in-house lawyers, provided that in-house lawyers are qualified lawyers (if the in-house lawyer is not a qualified lawyer, ie they are not admitted to the Bar, the professional secrecy rule does not apply to them).

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

Generally, the above-mentioned rules will apply to non-national qualified lawyers (who obtained a professional title in a Member State of the EU or third country and are admitted to the Bar) in the event that they provide services in the territory of Poland. Polish law specifies the scope and limitation of legal services provided by foreign qualified lawyers in the territory of Poland. However, general rules applicable to lawyers will be applicable to foreign qualified lawyers, including the professional secrecy rule.

How is legal professional privilege waived?

The most important exception to professional secrecy is covered by the Polish Code of Criminal Procedure. Under its regulation, a judge, after a prosecutor’s motion, can lift the confidentiality obligation and allow a lawyer to be examined as a witness. It could happen for the purpose of justice and in the absence of any other proper evidence. This regulation is highly criticised in Polish legal society and it is used in very limited cases. Furthermore, a lawyer is obliged to disclose information which refers to money laundering or terrorist activities regulated under a separate statute.

Legal professional privilege in the context of merger control

Legal professional privilege is not been clearly defined within the context of merger control and there is a lack of related jurisprudence concerning merger proceedings. Nevertheless, it is recognized as a fundamental right on the basis of Article 6 of the European Human Rights Convention.

However, it may be worth referring to cases of dawn raid. In a recent judgement concerning the confiscation of binary copies of entire hard drives, the Polish Competition Court ruled that this itself would not be unlawful, but the subsequent reviewing of electronic data without the presence of undertaking's representatives might be regarded as an infringement. The appropriate protection of legal professional privilege requires, selecting the relevant evidence that could potentially contain such information.

Last modified 20 Mar 2019

Portugal

Portugal

What is protected by legal professional privilege?

Legal professional privilege covers a broad spectrum of information and documents. Every fact and / or supporting document (in any format) disclosed to a lawyer by a client, its associated parties, codefendants, counterparties and others are of a confidential nature, unless their disclosure is expressly authorised (as further explained below).

Please note that legal professional privilege does not cover facts

  • Known to the public
  • Previously proven in court
  • Deemed a crime in which the lawyer is a suspect of having played an active role
  • Described in public documents / deeds, and
  • Disclosed in the client’s benefit with the authorisation of the Bar Association

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

Both on the basis of the EOA’s provisions and the approach adopted by the General Council of the Bar Association, inhouse counsels have the same rights and are bound by the same duties as independent lawyers, notably as regards legal professional privilege.

Attention should also be drawn to Opinion No. E-07/07 of the same body of the Bar Association, where it was concluded that the search and seizure by the Competition Authority, of documents in the office and computer of an in-house lawyer is to be considered not only void but could also constitute a criminal act. In this context, jurisprudence from 2008 should also be mentioned as regards the protection given to in-house lawyers in terms of legal privilege vis a vis the Competition Authority and the specificities concerning the physical places where in-house lawyers have their offices and the special duty on safeguarding documents.

In summary, Portuguese rules provide a more vigorous protection to in-house lawyers in competition cases that at the EU level and due regard should be had to the applicable law in each situation.

Does legal professional privilege apply to the correspondence of nonnational qualified lawyers?

The Bar Association allows certain foreign accredited lawyers to register and practise in Portugal, whether on a permanent or occasional basis.

Besides the applicable EU legal framework, the Code of Conduct for lawyers in the European Union sets forth that while acting in other countries, a lawyer shall be 'be bound to comply with the rules of the Bar or Law Society of the Host Member State', which means that non-national lawyers acting in Portugal shall comply with the Portuguese Lawyers’ Bar Statutes and, in general, with Portuguese Law. Hence, in these circumstances they are subject to the same guidelines and code of conduct as Portuguese lawyers, notably the rules of legal professional privilege.

In 2008, the Commercial Court of Lisbon has decided that non-national lawyers may only benefit from the rules regarding professional privilege if they are registered with the Portuguese Bar Association. Notwithstanding, the Portuguese Competition Authority adopts a broader approach in its 2012 Guidelines for Investigation, as it seems to interpret that non-national lawyers may benefit if registered with the Portuguese Bar or any other similar entities in other EU countries.

How is legal professional privilege waived?

A lawyer can only be authorised to reveal facts covered by professional privilege if that is absolutely necessary for the defence of the dignity, rights and legitimate interests of the lawyer or their clients or representatives. This waiver of legal professional privilege depends of previous authorisations from the Bar Association and even having obtained it, the lawyer may nonetheless choose to maintain secrecy.

Professional legal privilege can also be waived by order of the court under the Criminal Procedure Code. Albeit the Bar is heard previously to the court’s waiver decision regarding professional privilege, it is highly discussed whether its opinion is, or not, binding to the court. Consequently, it is also controverted whether the lawyer that refuses an order of the court to waive professional privilege incurs in a crime of disobedience under the Criminal Code.

A different situation is that where the lawyer has the duty to waive professional privilege. Directive on Money Laundering was recently transposed by Law 83/2017, 18 August, which provides for certain duties on lawyers when accepting new clients (‘Know Your Client’ policies), including requesting full details of the client’s identity, ultimate ownership in case of legal persons and origins of values / moneys.

Whenever a lawyer has strong suspicions concerning the origin or legitimacy of their client and values / moneys involved, the lawyer has a duty to report it to the Bar Association which, in turn, and if the issue is deemed potentially unlawful, has the duty to report it to the Public Prosecutor. Despite the above, Portuguese lawyers have been limiting this reporting duty to confidential information not pertaining directly to their clients but to third parties involved, and the general understanding and interpretation of Article 92 of the statutes has prevailed.

In addition to the above and as complementary information, it should be noted that lawyers can be prosecuted if they assist their clients in perpetrating any unlawful actions.

Irrespective of the above, it should be noted that professional privilege cannot be waived regarding correspondence between lawyers, as it is considered that this absolutely confidential, as long as it is identified as such.

Legal professional privilege in the context of merger control

Mergers are notified either in accordance with the regular or the simplified notification form. The regular form sets forth that the Notifying Party shall submit to the Competition Authority notably 'a copy of the final or most recent versions of all the documents directly related to the carrying out of the concentration' and 'analysis, reports, studies and other similar documents submitted to or prepared by the governing or management bodies of the Notifying Party / Parties for the preparation and evaluation of the concentration notified'.

Moreover, during the merger proceedings the Competition Authority may request any information (or documentation) which considers necessary. Especially as concerns potentially complex merger cases, it is important for undertakings to prepare themselves so as to be able to respond swiftly to any requests by the Competition Authority as concerns disclosure of info and documentation while avoiding any breach of legal professional privilege. More in general, it is useful for undertakings to obtain guidance as to the optimization of the concept of legal professional privilege for communications with other professionals.

Last modified 15 Mar 2019

Qatar

Qatar

Legal professional privilege protects all communications between a professional legal adviser and their client from being disclosed without the permission of the client. The privilege is solely for the benefit of the client and not the lawyer. The objective of this legal principle is to protect an individual's access to the justice system by ensuring they can disclose all relevant information to their legal advisers without the fear that this disclosure may result in negative repercussions or prejudice them in the future.

A lawyer ceases to be bound by the requirements of legal professional privilege if the lawyer can demonstrate that documentation or information:

  • Was in the public domain at the time it was disclosed to the lawyer;
  • Entered the public domain subsequent to the time it was disclosed to the lawyer through no fault of the lawyer; or
  • Was in the lawyer's possession free of any obligation of confidence at the time it was disclosed to the lawyer, evidenced by records at the time of disclosure.

Notwithstanding the lawyer-client privilege, a lawyer may disclose certain documents / information to the extent such disclosure is required by a valid order of a court or other governmental body having jurisdiction, provided that the lawyer provides the client with reasonable prior written notice of such disclosure and makes a reasonable effort to obtain a protective order preventing or limiting the disclosure and/or requiring that the documents / information so disclosed be used only for the purposes for which the law or regulation was required.  

Pursuant to Article 51 of the Qatar Code of Law Practice, the concept of legal professional privilege in the State of Qatar is limited to the professional relationship between a lawyer and their client, through the lawyer’s obligation to keep confidential all information disclosed by their client.

Further, Article 265 of the Qatar Code of Civil and Commercial Procedure, prohibits a lawyer or an agent from disclosing information that they obtain in connection with their professional retainer. Fundamentally, the obligation of confidentiality remains in place even after the professional has ended their retainer with the client.

It appears that the same privilege protections do not apply to in-house legal counsel advising officers, directors or employees of the company as they are not independent of the client. A key point to note is that neither the Code of Law Practice nor the Code of Civil and Commercial Procedure apply to in-house legal counsel who provide their services on an employment basis. In-house lawyers are instead governed by the Qatar Labour Law. However, to protect information or communications passing between in-house counsel and the employer, it may be possible for a confidentiality agreement to be put in place.

While it may be expected that the concept of legal professional privilege would be more widely applicable within the Qatar Financial Centre ("QFC") (due to the common law basis of its jurisdiction), there are currently no references to the concept in the QFC legal corpus. Accordingly, the above position is also likely to stand in the QFC.

Legal professional privilege in the context of merger control

Legal professional privilege has not been clearly defined within the context of merger control in Qatar.

Last modified 25 Jul 2019

Romania

Romania

What is protected by legal professional privilege?

As mentioned above, the concept of professional secrecy has a very broad definition under the legislation regulating the legal profession, covering any correspondence and information transmitted between the lawyer and the client, but only to the extent that such are in the lawyer's possession.

Legal professional privilege in the context of investigations of the Romanian Competition Council is strictly defined, and it covers communications between the investigated undertaking or association of undertakings and its lawyer exchanged for the exclusive purpose of exercising the undertaking’s right of defence, respectively before or after the opening of the administrative procedure based on the Competition Law subject to such communication being related to the subject matter of the procedure. Preparatory documents are no longer covered by legal privilege and can be seized and used as evidence (please see below for more information regarding the recent legal developments in this area).

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

As opposed to lawyers, in-house counsels are not considered to be practising a liberal profession. The aforementioned legal provisions appear not to cover the situation of in-house counsel – similar to the current approach of the European Commission and EU Court of Justice. Nevertheless, in-house counsels are also obliged to abide by professional secrecy, under the specific legislation regulating the in-house counsel profession (Law no. 514/2003).

How is legal professional privilege waived?

Article 46 of the Lawyer’s Law provides that lawyers cannot be called to testify and cannot provide information to any authority or person with regard to the matters entrusted upon them, except for when they have the prior, express and written approval of all clients having an interest in that respective matter.

Last modified 15 Mar 2019

Russia

Russia

What is protected by legal professional privilege?

In addition to the above, correspondence between advocates is protected by advocate secrecy regulations. Special investigative activities can be performed in respect of advocates only under special rulings.

Advocate secrecy does not cover cases when an investigation has uncovered items used to commit a crime or goods prohibited or limited in Russia.

Advocate secrecy does not apply to lawyer‑to‑lawyer communications (to the extent the lawyers are not advocates). Correspondence between legal consultants can be protected by means of a confidentiality agreement as a commercial secret. However, upon the request of an authorised state body, this information must be provided. A commercial secret can be protected in two ways:

  • Information received from a client can be protected from being disclosed to third parties by a confidentiality agreement between the client and the lawyer, and
  • If a lawyer is an employee (including employees in law firms) they have to maintain the confidentiality of the commercially secret information which they obtained during the performance of their employment (including information received from clients)

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

In‑house counsel cannot disclose to third parties (except authorised state bodies) commercial secrets which they obtained during the performance of their employment. Authorised state bodies have a right to seize documents or question an in‑house counsel as part of a special inspection of the company or criminal prosecution of the head of the company or other employees, as well as in other special cases.

There is a general human and constitutional right for the secrecy of correspondence, telephone calls, etc (Article 23 of the Russian Constitution). This right can be limited if the information is officially requested by authorised state bodies. However, this applies only to private correspondence and not to official / business correspondence.

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

Under Russian law, foreign qualified lawyers can advise on issues of such foreign law in the territory of the Russian Federation. Foreign advocates are prohibited from providing legal assistance in the territory of the Russian Federation on issues relating to state secrets of the Russian Federation. Only Russian‑qualified advocates are protected by advocate secrecy.

If a foreign qualified lawyer is an employee under an employment agreement governed by the Russian Labour Code, that lawyer has to comply with Russian rules related to commercial secrecy.

How is legal professional privilege waived?

Advocate secrecy is unlimited in time and can only be waived by the client.  There are certain exceptions to this rule stated in the law.

Legal professional privilege in the context of merger control

The principles of legal professional privilege set out above are equally applicable in the context of merger control procedures. The competition authority cannot require disclosure of information which is considered to be an advocate secret. If any information to be submitted to the competition authority constitutes a commercial secret, such information should be marked as such, and in this case the competition authority must ensure that it is treated confidentially, kept in a separate file and not disclosed to third parties.

Last modified 15 Mar 2019

Saudi Arabia

Saudi Arabia

What is protected by legal professional privilege?

Lawyer-client privilege protects all communications between a professional legal adviser and his clients from being disclosed without the permission of the client. The privilege is that of the client and not that of the lawyer. The purpose behind this legal principle is to protect an individual’s ability to access the justice system by encouraging complete disclosure to legal advisers without the fear that any disclosure of those communications may prejudice the client in the future. When a lawyer is not acting primarily as a lawyer but, for instance, as a business adviser, member of the board of directors or in another non-legal role, then the privilege generally does not apply. The privilege protects the confidential communication, and not the underlying information. For instance, if a client has previously disclosed confidential information to a third party who is not a lawyer, and then gives the same information to a lawyer, the privilege will still protect the communication with the lawyer, but will not protect the communication with the third party.

A lawyer will not have any obligations under the legal professional privilege protection with respect to documentation or information which the lawyer can demonstrate:

  • was in the public domain at the time it was disclosed to the lawyer
  • entered the public domain subsequent to the time it was disclosed to the lawyer through no fault of the lawyer, or
  • was in the lawyer’s possession free of any obligation of confidence at the time it was disclosed to the lawyer, evidenced by records in existence at the time of disclosure.

Notwithstanding the lawyer-client privilege, a lawyer may disclose certain documents/ information to the extent such disclosure is required by a valid order of a court or other governmental body having jurisdiction, provided that the lawyer provides the client with reasonable prior written notice of such disclosure and makes a reasonable effort to obtain a protective order preventing or limiting the disclosure and/or requiring that the documents/information so disclosed be used only for the purposes for which the law or regulation required, or for which the order was issued.

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

The Legal Profession Law does not include in-house counsel who provide their services on an employment basis and subject to the Saudi Labour Law. It should be noted that most in-house counsel in the KSA are non-national, and they would accordingly be subject to the professional obligations of their home countries.

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

A non-Saudi national can be entitled to practise law in accordance with the terms of agreements concluded between the KSA and other countries.

How is legal professional privilege waived?

Legal professional privilege may be waived if the confidential communications are disclosed to third parties. Other limits to the legal professional privilege may apply depending on the situation being adjudicated. The Legal Profession Law states that a lawyer shall practise the profession in accordance with the Shari’a and laws in force. He shall refrain from any act that compromises the dignity of the profession and shall comply with the relevant rules and instructions. A lawyer shall not refer to personal matters concerning his client’s adversary or representative, and shall refrain from any offensive language or accusation in connection with the content of his written or oral argument. A lawyer shall not disclose any confidential information which has been communicated to him or of which he has become aware in the course of practising his profession even after expiration of his power of attorney, unless such non-disclosure constitutes a violation of Shari’a requirements.

Similarly, he shall not, without a legitimate cause, decline to represent his client before the case has been concluded.

Last modified 1 Sep 2016

Scotland

Scotland

What is protected by legal professional privilege?

Legal advice privilege

If no adversarial proceedings are in contemplation, legal professional privilege will only attach to documents which constitute confidential communications between a lawyer and their client made for the purpose of giving or obtaining legal advice and documents which evidence such communications, including material forming part of the continuum of those communications. Each part of this test requires further explanation.

In Three Rivers District Council and Others v The Governor and Company of the Bank of England [2004] UKHL 48, the House of Lords confirmed that 'legal advice' is not confined to advising the client on the law but includes advice 'as to what should prudently and sensibly be done in the relevant legal context'.

Lord Rodger used a simple but useful test to determine whether the lawyer was providing such advice: whether they had 'put on legal spectacles when reading, considering and commenting on the drafts'. Consequently, presentational advice in the context of an inquiry will be privileged, however if a lawyer acts as a 'man of business' the advice may lack relevant legal context and therefore not be privileged. The privilege does not extend to documents which are already in existence merely because they are sent to a solicitor.

Communications

Communications must actually transfer information between a lawyer and their client ‑ this is construed to include actual lawyer / client communications (eg phone calls, face‑to‑face discussions, letters, emails, faxes, etc) and evidence of such communications (eg file notes of phone calls, memos, computer hard drives, video evidence, sound recordings, etc) – the key being that the communication must have the aim of keeping both informed so that advice may be sought and given.

A document which stands in its own right or is not addressed and delivered to a lawyer specifically for advice may not constitute a communication. A statement prepared by an employee at the request of a manager to record the employee's recollection of events is unlikely to benefit from legal advice privilege – even if the employee believes that the document will be passed to lawyers for advice – since it is not a communication with a lawyer.

Lawyer

The protection attracts to all members of the legal profession: solicitors, in‑house lawyers (with the exception the context of an antitrust and competition investigation by the European Commission), barristers within the UK and duly accredited foreign lawyers (whether foreign in‑house counsel who are not required to be a member of their local Bar would still qualify is currently untested).  Where appropriate provisions for supervision are in operation, it can also include legal executives, paralegals and trainee solicitors. Care must be taken, when communicating with an in‑house lawyer, to place the communication within the correct lawyer / client relationship.  An in‑house lawyer may need to maintain two such relationships; one with the business, in which they are the 'lawyer', and one with external lawyers, in which they (alone or together with others) are the 'client'.

The Supreme Court, in a decision (see footnote 1) likely to be persuasive to Scottish judges, has confirmed that legal advice privilege cannot be claimed in respect of confidential communications between accountants and their clients for the purpose of requesting or providing legal advice. Accordingly, advisers other than lawyers are unlikely to be able to claim privilege, irrespective of whether the same advice is sought from both.

Client

Not every employee in a company will be the client for the purpose of attracting privilege. The 'client' will only comprise those few individuals who are authorised to obtain legal advice and who seek and receive legal advice from the lawyer, whether external or in‑house. This might be an ad hoc committee or group formed to respond to a specific issue or incident, or it might be members of senior management. Often, however, those with direct knowledge of the facts or matters in issue will not fall within the concept of 'client' and particular care will therefore need to be exercised when interviewing or obtaining information from such employees. The English High Court has refused to apply legal advice privilege to notes taken by lawyers at interviews with their client's employees and ex-employees on the basis that the employees and ex-employees involved in the interviews were not 'the client' to whom advice was being provided. 

Documents created for the purpose of giving or obtaining legal advice

Legal professional privilege only attaches to communications that give or seek legal advice as to what should prudently and sensibly be done in a relevant legal context (including how best to present facts in light of legal advice given). In determining whether there is a relevant legal context consideration is given to whether the advice relates to 'the rights, liabilities, obligations or remedies of the client either under private law or under public law'. Privilege will not attach to advice which is purely commercial or strategic.

Difficulties arise when determining the status of copy documents and documents which are only privileged in part. Further difficulties can arise if privilege has been impliedly or expressly waived. These issues are beyond the scope of this brief summary. Expert legal advice should be taken.

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

Yes, except in the context of an antitrust and competition investigation by the European Commission.

An in‑house lawyer must, however, take particular care to ensure that they distinguish clearly between advice which is legal and that which is commercial in nature, since the latter will not attract legal professional privilege. They must also take care when instructing external lawyers to clearly identify and effectively manage the relevant lawyer / client relationships.

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

Yes, where the question of disclosure is governed by the law of Scotland.  Legal professional privilege applies to advice given by all duly accredited members of the legal profession. It is not necessary for the lawyer to be qualified in Scotland. The question of whether this extends to in‑house counsel in European jurisdictions where those counsel are not required to be members of their local Bar and whose advice in their own jurisdictions would not be protected by local professional secrecy laws remains to be determined by the UK courts.

Where the question of disclosure is governed by European law (such as in the context of an antitrust and competition investigation within the UK by the European Commission), only the advice of an independent lawyer qualified within the EEA is protected by legal professional privilege. To benefit from EU privilege post-Brexit Scottish lawyers will need to maintain an entitlement to practice in another EU  member state in the absence of any agreement between the UK and the EU to the contrary.

How is legal professional privilege waived?

Legal professional privilege is waived if the relevant material is placed before a court. It is also lost if the material in the document loses confidentiality or if the document came into being for the purpose of furthering a criminal or fraudulent scheme. A lawyer has a duty to protect a client’s legal professional privilege and cannot waive it without the client’s express authority.

It is possible to waive legal professional privilege on a selective basis so that disclosure to a third party of a legal professional privileged document will not mean that it ceases to be legal professional privileged for any other purpose. However, for a waiver to be selective, the terms of the disclosure must be clearly established in advance. This is a complex area. Always seek legal advice.

Legal professional privilege in the context of merger control

Competition authorities are increasingly issuing large document requests in complex merger cases, which raises questions relating to legal professional privilege. In a European Commission investigation EU law recognises as privileged the legal advice of independent lawyers qualified to practice in the EEA. It does not recognise any privilege in communications between in-house lawyers and their clients. In domestic investigations the Scottish rules described in the preceding paragraphs apply.

Footnote 1: R.  (on the application of Prudential Plc) v Special Commissioner of Income Tax [2013] UKSC 1

Last modified 15 Mar 2019

Serbia

Serbia

What is protected by legal professional privilege?

The entire communication between the client and the lawyer is confidential and legally privileged; regardless of when the documents were created (the scope of legal professional privilege may vary depending on the specific proceedings as explained above).

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

Legal professional privilege does not apply to in-house lawyers (irrespective of whether they passed the Bar exam) who are not members of the Serbian Bar Association and not licensed to independently practise law. These in-house lawyers, or general counsel, are employed by the company, and would merely have obligations like any other employees (eg NDA obligation and similar, but the correspondence with them shall not be regarded as legal professional privileged).

There are cases in practice where independent lawyers, who are licensed by the Bar Association to practise law independently, act as 'in-house' lawyers for the client (substantially working only for that particular client as a general counsel). At this time, legal professional privilege would extend to communication with these in-house lawyers, as it would to independent external lawyers. However, the risk of implementing a 'substance over form' doctrine is always present and might occur in the future (especially having in mind the EU law developments in this regard). Should this happen, that would put these in-house lawyers in this perspective in the same or very similar position as in-house lawyers who are employed by the company and not licensed to practise law independently. In other words, there is (although at this time very remote) risk that legal professional privilege will not apply to communication between the company and such lawyers.

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

The communication with foreign qualified lawyers is legally privileged only if the lawyer has a licence to practise law in Serbia issued by the Serbian Bar Association (notably, the conditions for the foreign lawyer to do this are quite strict and are not further elaborated in this Handbook). However, from the position of Serbian law, there is no legal professional privilege in correspondence with lawyers qualified to practise law only in non-Serbian jurisdictions.

How is legal professional privilege waived?

Please note that legal professional privilege can be waived by the client. The competent authorities are not entitled to restrict the legal professional privilege, except, inter alia, pursuant to the Constitution of the Republic of Serbia (in a state of emergency or state of war) only up to the necessary extent, or in infringement procedures before the Competition Commission (as described above).

Last modified 1 Aug 2016

Singapore

Singapore

What is protected by legal professional privilege?

Legal professional privilege may be invoked by a party to avoid its having to make disclosure in court proceedings of documents recording confidential communications passing between a lawyer and client for the purpose of providing or obtaining legal advice, regardless of when those communications occur. In contrast, litigation privilege is only engaged when there is a reasonable prospect of litigation; documents prepared prior to that point will not be covered by litigation privilege.

The documents protected include communications that transfer information between the lawyer and their client or, only in respect of litigation privilege, a third party, as well as the contents or conditions of any documents with which a lawyer has become acquainted in the course and for the purpose of their professional employment. However, a pre-existing document not covered by privilege does not become privileged merely because it was exchanged between solicitor and client for the purposes of providing legal advice, even if done in anticipation of litigation.

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

Yes. In February 2012, the Evidence Act was amended to include new sections 128A and 131(2)(b), which clarify that legal professional privilege covers communications with in-house counsel, provided that such communications were made to them in the course and for the purpose of their employment in that capacity. Prior to these amendments (introduced by the Evidence (Amendment) Act 2012), it was unclear whether the definition of 'legal professional adviser' in section 131 of the Evidence Act covered communications with in-house counsel. However, the general view, even prior to these amendments, was that, at common law, communications with in-house counsel likely would have been protected from disclosure.

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

Under Singapore law, legal professional privilege does not distinguish between foreign lawyers and Singapore-qualified lawyers with respect to the scope of protection; it applies equally to communications issued or received by both categories of lawyers.

How is legal professional privilege waived?

At common law and under the Evidence Act, a party may only waive their right to invoke legal professional privilege if they consented to the production or disclosure of the document in question. Consent may be given expressly or impliedly. In order to establish express consent, the courts will usually demand clear evidence of consent, usually in the form of writing.

Inadvertent production or disclosure of a privileged document would mean that the document's quality of privilege would be lost once the document has been inspected. However, even after inspection, there are two situations in which the court may at its discretion restrain the use of inadvertently disclosed documents that were previously privileged:

  • The first is where the privileged document was obtained by the opposing party's lawyers by fraud.
  • The second is where the opposing party's lawyers carried out inspection of the otherwise privileged document with full knowledge that the production or disclosure of the document was the result of an obvious mistake.

Legal professional privilege in the context of merger control

The CCCS has published its Guidelines on the Powers of Investigation in Competition Cases 2016, and which are, at present, the sole source of recognised principles for assessing the scope and extent of legal professional privilege in merger control procedures in Singapore.

The Guidelines are intended to help businesses understand how the CCCS will administer and enforce infringements and, in respect of privilege, they provide for the following:

  • Under section 63 of the Competition Act ('the Act'), the CCCS has the power to require the production of specific documents and information which relate to any matter relevant to the investigation. To exercise this power the CCCS must have reasonable grounds for suspecting that a Section 34, 47 or 54 prohibition has been infringed. The power is exercised by the service of a written notice and can be used on more than one occasion during the course of an investigation.
  • The CCCS recognises that the authority to require the disclosure of information and documents is limited by privilege. Therefore, any communication between a professional legal adviser and their client, or communication made in connection with, or in contemplation of, legal proceedings and for the purposes of those proceedings, which would be protected from disclosure in court proceedings, is excluded from the powers of investigation held by the CCCS. Communications with in-house lawyers and lawyers in private practice (including foreign lawyers) can likewise benefit from privilege.

We should also note that Section 7 of the Guidelines discusses self-incrimination and the disclosure of information by the CCCS. Although not directly relevant to legal professional privilege, it may be helpful to digest for application in certain circumstances.

Last modified 15 Mar 2019

Slovak Republic

Slovak Republic

What is protected by legal professional privilege?

The express obligation of confidentiality is provided by the Slovak law only with respect to the lawyer/client relationship. This covers the right of the client for the protection of the information the client provided to the advocate in the course of the legal representation and the obligation of the advocate to maintain confidentiality of the obtained information. This obligation of the advocate does not apply in cases where the legal regulations require the advocate to prevent a criminal offence.

An advocate cannot be compelled to produce documents in court proceedings. The advocate can produce such materials only in cases when they are released from the obligation of confidentiality by their client or a client’s successor.

In the course of civil proceedings, Act No. 160/2015 Coll. the Civil Dispute Procedure Code, as amended, guarantees the obligation of the witness to maintain confidentiality during their examination in civil proceedings (if such obligation follows from laws or is recognized by Slovak Republic). In the course of a criminal proceeding, any secret information, trade secret, or bank, tax, insurance or telecommunications secret shall be protected. The data which is subject to such secrecy can only be provided before the criminal proceeding or in the preparatory proceeding on request of a prosecutor or the judge. In this respect, communication between the advocates and clients shall also be protected from seizure.

There is no specification of documents which shall benefit from these obligations. Generally, any such documents that include certain confidential information shall be protected, whereas under the advocacy legislature, everything that the advocate learned of due to their engagement as the advocate shall be confidential. In addition, there is no specific time limitation for this obligation. The documents are protected for as long as there is a risk that by breaching the obligation some damage may be caused to the client.

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

Since an in-house counsel is deemed to be an employee, their obligation to maintain confidentiality stems from the general obligation of the employee to maintain confidentiality of any information which they obtained during the performance of their employment. The obligations imposed specifically on advocates do not apply to in-house counsel.

Therefore, unlike an advocate, an in-house counsel is obliged to maintain confidentiality of any information which they obtained during the performance of their employment, whereas the advocate is obliged to maintain confidentiality of all information they obtained in relation to the performance of their function as an advocate.

As regards in-house counsel, the obligation to maintain confidentiality will apply to a foreign in-house counsel, provided they are employed in the Slovak Republic and the Slovak labour law regulations apply to them.

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

The obligation to maintain confidentiality stipulated in Act No. 586/2003 Coll. Advocates, as amended, shall also apply to the so-called registered European lawyer (a European lawyer is a national of any EU Member State or a national of any other signatory of the EEA Treaty, who is authorised to pursue their professional activities and provide legal services as a sole practitioner under their home professional title). A registered European lawyer may provide legal services in the Slovak Republic under the terms and conditions laid down in this Act and they are obliged to fulfil the duties and obligations arising for lawyers under this Act, under separate legal rules and the Slovak Bar’s internal rules (their duty to comply with the laws and legal rules applicable in their home Member State shall not be affected).

Last modified 15 Mar 2019

Slovenia

Slovenia

The scope of legal professional privilege protection is defined under the said Prevention of the Restriction of Competition Act ('Act'). The Act considers as privileged communication all 'letters, notifications and other means of communication' between the client and his lawyer. Communication with in-house counsel is not protected under this Act because it applies only to a 'lawyer', ie an individual who is admitted to the Bar. As far as foreign qualified lawyers are concerned, they are equivalent to 'lawyers' and the rule of legal professional privilege under the Act applies also to them. The legal professional privilege protection might be waived by explicit request of the client.

Last modified 28 Jul 2016

South Africa

South Africa

What is protected by legal professional privilege?

Any communication that satisfies the requirements of legal professional privilege is protected. If a document is not privileged, privilege cannot be created by simply handing over the document in a confidential manner to a legal adviser, as it will not be a communication for the purpose of obtaining legal advice. Documents that come into existence in the business of the client are not protected from disclosure merely because they may reach the hands of a legal adviser or because litigation has commenced.

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

The court in Mohamed v President of South Africa and Others 2001 2 SA 1145 (C) found that legal professional privilege can be claimed in respect of communications with internal legal advisers where they amount to the equivalent of an independent external legal adviser's confidential advice. In order for legal professional privilege to apply in this instance, in addition to compliance with the requirements ordinarily applicable, the party claiming the privilege would also need to prove that the communications in question were made in the legal adviser's capacity as such, as opposed to in a general commercial or managerial capacity.

Does legal professional privilege apply to communication with foreign qualified lawyers?

Although the South African courts have not yet pronounced on the issue, it is likely that communications with foreign qualified lawyers, that satisfy the requirements of legal professional privilege, will also be protected.

How is legal professional privilege waived?

Legal professional privilege is for the client to claim and must be claimed before it can exist. Only the client can waive legal professional privilege. This can also be done through an agent of the client. Waiver of legal professional privilege can be express, implied or imputed. It is implied if the person who claims the privilege discloses the contents of a document, or relies upon it in its pleadings or during court proceedings. It would also be implied if only part of the document is disclosed or relied upon. For a waiver to be implied the test is objective, meaning that it must be judged by its outward manifestations. Imputed waiver occurs when fairness requires the court to conclude that privilege was abandoned.

Last modified 15 Mar 2019

South Korea

South Korea

What is protected by legal professional confidentiality?

The procedural laws mentioned above form the basic scope of legal professional confidentiality in South Korea. Article 18 of the Korean Bar Association's Ethics Code for Lawyers further illustrates the scope of legal professional confidentiality with regard to the 'work product doctrine' – a concept which originated from the 1947 case of Hickman v. Taylor, in which the Supreme Court affirmed a decision of the United States Court of Appeals for the Third Circuit that excluded from discovery the oral and written statements made by witnesses to a defendant's lawyer.

Paragraph 1 of Article 18 states the general rule: 'Attorneys shall not divulge or unfairly utilize confidential information of the client obtained in the course of performing their duties.' Paragraph 2 and 3 embody the 'work product doctrine,' in which the Code prohibits disclosure of 'correspondence with clients and documents/articles submitted by clients' (ordinary work product; Paragraph 2) and 'documents, memos, or other similar materials produced by attorneys' (opinion work product; Paragraph 3).

Exceptions to the rule on confidentiality are set out in Paragraph 4 of Article 18.  Relevant information may be disclosed or utilised to the minimum extent necessary where: (i) a matter of grave public concern is at issue; (ii) the client has given consent; or (iii) it is necessary for the lawyer to defend their own rights.

Korean law does not recognize the concept of 'attorney client privilege,' which gives 'clients' the right to refuse disclosure of confidential communications between the client and their lawyer. In 2012, the Supreme Court of Korea overturned a lower court decision which sought to derive attorney client privilege from the Korean constitution.

However, legal professional 'privilege' can still be exercised under Criminal Procedure Act Articles 112 and 149, and Civil Procedure Act Article 315 in terms of rights of 'attorneys' to refuse testimony regarding client confidences, and to resist seizure of clients' articles.

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

In-house counsel are not explicitly excluded from the protections offered by legal professional confidentiality. However, there is a growing demand for the application of legal professional confidentiality to in-house counsel to be expressly recognised.  On February 24, 2014, the Korean Bar Association's Ethics Code for Lawyers was amended to include a declaration that maintaining independence within the company is one of the most fundamental duties of in-house counsel. In effect, this revision highlights that in-house counsel are independent from the corporate entity, and thus strengthens the claim that the same principles of professional confidentiality which apply to lawyers in private practice should also apply to in-house counsel.

In practice, however, when a search and seizure is conducted against a corporation, any legal opinions/advice from in-house counsel are not protected by legal professional confidentiality, and may be used and investigated by the investigative authorities. The Korean courts do not sanction such practice.

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

There are no laws or cases that resolve these issues in the context of criminal procedure. However, in civil procedure, legal professional confidentiality may apply to any communications with non-national qualified lawyers. Under Article 315 of the Civil Procedure Act, a witness may refuse to testify if a lawyer or a 'holder of other post liable for keeping secrets under statutes' is examined on matters pertaining to such secrets. Under Article 30 of the Foreign Legal Consultant Act, a foreign legal consultant has a duty to keep clients' secrets confidential. Therefore, foreign legal consultants also enjoy legal professional confidentiality, and the right to refuse testimony.

The rule of confidentiality is embodied in the Foreign Legal Consultant Act as one of the primary duties of the Foreign Legal Consultant. According to Article 30 of the Foreign Legal Consultant Act, 'no person who is or was a foreign legal consultant shall disclose any confidential matter of which they become aware in relation to their duties.' This rule shall not apply where disclosure of confidential matters is specifically prescribed otherwise by another law.

The law takes violation of duty very seriously. According to Article 47 of the Foreign Legal Consultant Act, anyone who discloses any confidential information in violation of Article 30 and any person who obtains and uses confidential information for any illegal gain, with knowledge of such violation, may be liable to imprisonment with prison labour for not more than five years, and/or a fine not exceeding 30 million KRW.

How is legal professional confidentiality waived?

There are a number of situations in which legal professional confidentiality may not apply or may be waived. For example, legal professional confidentiality can be waived if necessary steps were not taken to ensure that the communications, both written and oral, were undertaken in confidence, or if the client or the lawyer voluntarily discloses confidential information during an investigation.

Last modified 5 Aug 2019

Spain

Spain

What is protected by legal professional privilege?

The general rule is that any spoken or written communications, documents or correspondence exchanged between a lawyer and their client, opposing parties and other lawyers within the context of a lawyer-client relationship must be kept confidential. Any breach of this duty could lead to the lawyer being held criminally liable and to sanctions being imposed by the Bar Association, as well as by any other potential authority related to the matter.

In the particular case of competition law, it is also understood that any internal document that merely reproduces advice provided for an external lawyer shall be covered by professional secrecy, as may be inferred from recent case law issued by the Spanish Competition Authority (Comisión Nacional de los Mercados y la Competencia or 'CNMC'). In this regard, it is important to highlight that when a dawn raid inspection is carried out, the raided company is required to explain and demonstrate to the Spanish Competition Authority the reasons that justify the consideration of this type of information (ie reproducing external legal advice) as information protected by the professional secrecy (see the judgment of the Supreme Court of 27 April 2012). Once it is demonstrated that those documents are protected, the officers of the Spanish Competition Authority should immediately return those documents to the raided company and exclude them from the scope of the investigation.

In this regard, the Supreme Court has recently confirmed the above. Namely. arguing that certain document is covered by the legal privilege will not suffice if no arguments for such coverage are provided to the officers of the CNMC (judgment issued on 21 September 2015).

Are in-house counsel protected by legal professional privilege?

As said above, Article 27.4 of the General Regulation of the Legal Profession (Estatuto General de la Abogacía) provides that in-house counsels benefit (in the same way external counsels do) from the general principles of freedom and independence. This legal provision do not distinguish between external and in-house counsels, which leads to the conclusion that both are subject to identical duties and rights in the framework of the performance of their legal services.

Nevertheless, in the specific case of Spanish competition law, the Spanish Competition Authority usually acts during the inspections as if internal counsel communication enjoys no professional secrecy on the grounds of the Akzo judgment abovementioned.

Such approach has been challenged before the Spanish Courts as the inspections carried out under Spanish regulations should not be affected by the Akzo judgment. The Spanish Supreme Court did not address directly this issue and simply stated (Judgment of 27 April 2012) that there had not been an infringement of the professional secrecy in those particular cases as the internal communications with in-house lawyers seized during the inspections had not been used by the competition authority to support the infringement of competition law.

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

Professional secrecy applies irrespective of the nationality of the lawyer. Therefore, non-national qualified lawyers have the same protection as the national ones.

Last modified 15 Mar 2019

Sweden

Sweden

The scope of legal privilege in Sweden is the same, regardless of whether the context is civil litigation, criminal investigations or competition law investigations.

What is protected by legal professional privilege?

Any document or information in any format which has been confided to an advocate in their professional capacity is protected by Swedish legal professional privilege.

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

In-house counsel in Sweden are not members of the Swedish Bar Association, and therefore not advocates. Consequently, communications with in-house counsel are not protected.

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

Communications with foreign lawyers which are the equivalent of advocates are also protected by Swedish legal professional privilege. As mentioned above, Swedish legal professional privilege may either be waived due to the client’s consent or if derogations from the legal professional privilege are provided in Swedish Acts.

Last modified 15 Mar 2019

Switzerland

Switzerland

In general terms, legal professional privilege is the procedural right of a person to refuse testimony or the disclosure of documents, and prevents authorities from seizing documents. Under Swiss law, the holder of the legal professional privilege is the professional lawyer; parties and third parties are entitled – under certain circumstances – to withhold documents and refuse testimony.

Generally speaking, correspondence and documents relating to, and prepared in the course of, a specific mandate to or from an external professional lawyer are protected by legal professional privilege, irrespective of the location of the documents.

Civil procedure (Federal Code on Civil Procedure – FCP)

As a general rule, parties to civil proceedings are under a duty to cooperate with the court with respect to the taking of evidence and establishing the facts of the case, and are therefore required to make truthful depositions as parties or witnesses or to produce documents to the (Swiss) court (Article 160 FCP); a party refusing to cooperate without justification cannot be sanctioned but may bear the consequences of adverse consideration of the evidence by the court (Article 164 FCP); third parties failing to cooperate may be punished by fine.

Parties and witnesses to a civil trial do not need to testify and are entitled to withhold documents if they can invoke a statutory privilege (eg lawyer-client confidentiality; Article 160 FCP) or have a particularly close personal relationship to a party (eg being directly related or married; Articles 163, 165, 166 FCP). The rules of civil procedure also govern which documents may be withheld and who can withhold them.

Criminal procedure (Federal Code on Criminal Procedure – FCrP)

A defendant (including legal entities) cannot be forced to incriminate himself (Article 113 FCrP). The applicable rules on criminal procedure specify which persons may also decline giving testimony. Lawyers may be held to testify, provided that they are subject to a statutory duty of disclosure or have been released by the client or the competent supervisory authority of their obligation of professional secrecy (Article 171 FCrP). However, even if a lawyer has been released of its obligation of professional secrecy, the lawyer may still rely on Article 13 BGFA and refuse to testify. Communication between a defence lawyer and client made in connection with the defence must not be seized by the authorities (Article 264 FCrP).

Competition law

Parties to agreements, undertakings with market power, undertakings involved in concentrations and affected third parties shall provide the competition authorities with all the information required for their investigations and produce the necessary documents (Article 40 LCart).

Defence communication (ie correspondence, memoranda, defence strategy papers, etc.) is protected irrespective of its location and the time at which it was created and for this reason must not be seized by the competition authorities (Article 264 FCrP). Documents located at the searched premises which contain legal advice from external lawyers and which have been created in the context of a specific professional mandate are privileged from seizure. In-house counsel may be subject to testifying, unless they can invoke a right to refuse giving testimony pursuant to the rules set forth in the FFCP.

Searches ('dawn raids') based on Swiss competition legislation are governed by the Federal Administrative Criminal Act (Bundesgesetz über das Verwaltungsstrafrecht, VStrR, SR 313.0). Defendants subject to searches of their premises may immediately object to the search of books and business documents. Upon such objection, the concerned books and documents will be sealed and may not be used in the investigation until a decision on the admissibility of the search and the confiscated books and documents has been rendered by the Board of Appeal of the Federal Criminal Court (cf. Article 50 VStrR).

Foreign proceedings

It is important to note that surrendering evidence located in Switzerland to foreign authorities or parties may constitute a violation of Article 271 (prohibited acts for a foreign state) and Article 273 (economic intelligence service) of the Swiss Criminal Code or other special statutory provisions (eg banking regulation, data protection regulation, etc). Switzerland is a party to The Hague Convention of 18 March 1970 on the Taking of Evidence Abroad in Civil or Commercial Matters.

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

Legal professional privilege (i.e. lawyer-client privilege) only extends to lawyers registered in the cantonal lawyers register. Lawyers employed by a company whose business does not involve offering legal services cannot register with the lawyers’ register, a requirement for entry in the register. Therefore, in-house counsel do not benefit from this type of privilege and cannot legally hold back company documents other than correspondence with outside counsels which are in their custody.

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

Lawyers not qualified in Switzerland but carrying out business in Switzerland pursuant to the BGFA are subject to the professional rules contained in the BGFA and are therefore subject to Article 321 of the Swiss Criminal Code. Documents located at their premises are protected by legal professional privilege.

Last modified 20 Aug 2016

Thailand

Thailand

According to Clause 11 of Regulation on Lawyers Conduct B.E. 2529, a lawyer is required to keep information obtained from the client confidential, unless they have obtained prior consent from the client or an authorization from the court to disclose such information. The violation of this regulation could be subject to punishment of:

  • Suspension of penalty determination
  • Prohibition from practising as a lawyer for a period of up to 3 years, or
  • Removal of name from the lawyer register in accordance with Section 52 of Lawyer Act B.E. 2528 (1985)

Section 4 of the Lawyers Act B.E. 2528 ('Lawyers Act') provides that a lawyer means a person who is registered as a lawyer and obtained a lawyer license issued by the Lawyers Council of Thailand. Legal practitioner may be divided into two categories. Firstly, those who are of Thai nationality and obtained lawyer license issued by the Lawyers Council of Thailand ('Licensed Lawyer') satisfy the meaning of 'lawyer' for the purposes of Section 4 of the Lawyers Act. Secondly, one does not have to be a Registered Lawyer to give legal advice in Thailand (ie acting as a solicitor) ('Non-Licensed Lawyer').

Therefore, it appears that Clause 11 of the Regulation on Lawyers Conduct does not apply to Non-Licensed Lawyer, such as an legal advisor or legal consultant Nevertheless, Non-Licensed Lawyer can be exposed to potential tortious and/or criminal liability under Section 420 of the Thai Civil and Commercial Code and Section 323 of the Thai Penal Code respectively for the disclosure of clients' confidential information.

Section 420 of the Thai Civil and Commercial Code provides that 'A person who, wilfully or negligently, unlawfully injures the life, body, health, liberty, property or any right of another person, is said to commit a wrongful act and is bound to make compensation therefor.'

Section 323 of the Thai Penal Code provides that 'Whoever knows or acquires any confidential information of another person as it is made known to them in the course of their occupation as a doctor, a pharmacist, a druggist, a midwife, a nurse, a priest, an advocate, a lawyer or an auditor, or by reason of being an assistant in such profession: and then discloses such confidential information in a manner likely to cause damage to any person shall be liable to imprisonment for not exceeding 6 months or a fine of not exceeding THB1,000, or both.

A person who receives training in the occupation referred to under the first paragraph discloses confidential information of another person which has come to their knowledge or which they have acquired from the training in a manner likely to cause damage to any person shall be liable to the same punishment.'

Therefore, although legal professional privilege does not apply to the Non-Licensed Lawyer, Non- Licensed Lawyer is nevertheless obliged to maintain confidential information obtained from the clients. Failure to do so may attract penalty under Section 420 and Section 323 above.

Last modified 15 Mar 2019

Turkey

Turkey

What is protected by legal professional privilege?

Legal professional privilege applies to all information exchanges between a client and their lawyer regarding the client’s right of defence, without any time limitations. The Constitutional Court accepts that all information regarding health conditions, economic conditions and personal information, including the client’s whereabouts and addresses the lawyer obtained in relation to their profession, falls within the scope of the legal professional privilege.

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

In order to claim that a document falls within the scope of legal professional privilege, the lawyer must be an outside counsel member of the Bar, and the relevant document must be produced in the scope of a lawyer/client relationship.

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

The rules on legal professional privilege are also applicable to lawyers not qualified in Turkey but carrying out business in Turkey pursuant to the Legal Profession Law, as they are subject to the professional rules contained in the Legal Profession Law.

How is legal professional privilege waived?

The Legal Profession Law states that legal professional privilege protection might be waived where this is in the client’s best interest.

Last modified 21 Oct 2015

Ukraine

Ukraine

Legal professional privilege can only be attributed to the information obtained by the members of the Ukrainian Bar Association – independent lawyers (attorneys-at-law) or members of an advocacy bureau or union, ie the information obtained by the ordinary lawyers or law firms. In-house lawyers or foreign lawyers who are not the members of the Ukrainian Bar are not protected by legal professional privilege.

Legal professional privilege covers any information that has become known to the lawyer, lawyer’s assistant or intern, or other person who has a working relationship with a lawyer, law office or partnership. Such information in particular includes:

  • information on the client
  • information on the matters that the client referred to a lawyer, and
  • content of the advice and clarifications obtained from the lawyer, all documents compiled (drafted) by the lawyer and documents and information obtained by the lawyer in the process of fulfilment of their professional obligations, including documents in electronic form.

The lawyer must not without the consent of the client disclose privileged information or use it in their own interest or in the interest of any third parties.

It is prohibited to demand from a lawyer (or their assistant or intern) that they provide information covered by legal professional privilege. The lawyer cannot be interrogated except for cases when the person who entrusted certain information (the client) released the lawyer (from obligations to keep the information privileged).

The state authorities (investigators) are prohibited from involving a lawyer in any confidential cooperation in the process of investigation if such cooperation might lead to the disclosure of privileged information. Legal professional privilege might be waived:

  • upon the written consent of the client, and
  • the lawyer might disclose the privileged information to the extent required to protect their own rights as a lawyer, eg if there is a disciplinary or criminal case brought against them.

Last modified 15 Mar 2019

United Arab Emirates

United Arab Emirates

Legal professional privilege protects all communications between a professional legal adviser and their client from being disclosed without the permission of the client. The privilege is solely for the benefit of the client and not the lawyer. The objective of this legal principle is to protect one's access to the justice system by ensuring individuals can disclose all relevant information to their legal advisers without the fear that this disclosure may result in negative repercussions or prejudice them in the future.

A lawyer ceases to be bound by the requirements of legal professional privilege if the lawyer can demonstrate that documentation or information:

  • Was in the public domain at the time it was disclosed to the lawyer;
  • Entered the public domain subsequent to the time it was disclosed to the lawyer through no fault of the lawyer; or
  • Was in the lawyer's possession free of any obligation of confidence at the time it was disclosed to the lawyer, evidenced by contemporaneous records.

Notwithstanding lawyer-client privilege, a lawyer may disclose certain documents / information to the extent such disclosure is required by a valid order of a court or other governmental body having jurisdiction, provided that the lawyer provides the client with reasonable prior written notice of such disclosure and makes a reasonable effort to obtain a protective order preventing or limiting the disclosure and/or requiring that the documents / information so disclosed be used only for the purposes required by law or regulation.  

In the UAE, there is no process of discovery and / or inspection of documents as part of the litigation process. Instead, each party will simply file the documents that it seeks to rely on and there is no obligation on a party (subject to a court order) to file a document which is damaging to its case.

As is the position with most civil law jurisdictions in the Middle East, there are no express privilege rules in the UAE and parties are able to, in theory, admit into evidence any document which may support their position. Instead, the concept of legal professional privilege in the UAE is limited only to the professional relationship between a lawyer and their client, through the lawyer’s obligation to keep confidential all communications made between a lawyer and their client for the purposes of litigation.

Indeed, lawyers must not disclose confidential information provided to them by their client without the client's express permission pursuant to the Federal Law on the Regulation of the Legal Profession.

It appears that the same privilege protections do not apply to in-house legal counsel advising officers, directors or employees of the company as they are not independent of the client. However, to protect  information or communications passing between in-house counsel and the employer, it may be possible for a confidentiality agreement to be put in place.

The Dubai International Financial Centre ("DIFC") is an 'opt-in' jurisdiction subject to the DIFC Courts. "Privilege" is defined in the Rules of the DIFC Court 2018 (28.28(2)) as "the right of a party to refuse to disclose a document or to produce a document or to refuse to answer questions on the ground of some special interest recognised by law".

However, the DIFC Courts have not produced any practice directions in relation to the application of this rule nor have the courts been required specifically to rule on the issue of legal professional privilege in the DIFC. While it may be expected that the concept of legal professional privilege would be more widely applicable within the DIFC (largely due to the common law basis of its jurisdiction), parties cannot rely on this until the DIFC Courts issue guidance on the application of legal professional privilege in the DIFC.

Legal professional privilege in the context of merger control

Legal professional privilege has not been clearly defined within the context of merger control in the UAE.

Last modified 5 Aug 2019

United States

United States

What is protected by legal professional privilege?

The following three areas of law embody the scope of legal professional privilege:

Rule of confidentiality

Under Rule 1.6 of the Model Rules, confidentiality is a fundamental principle in the relationship between a lawyer and client whereby, in the absence of client consent or other applicable exceptions (described below), the lawyer may not reveal information relating to client representation. Confidentiality may apply whether or not the source of the information was the client. Therefore, communication with representatives of the client, or between the lawyer and persons retained by them, may also be protected by the privilege. For example, if a lawyer engages a consultant or expert to assist in preparation for litigation on behalf of a client, the communication of the consultant to the lawyer can also be privileged. This rule is meant to establish a relationship of trust between the lawyer and the client; it encourages the client to seek legal assistance and to communicate fully and frankly.

Under Rule 1.0(e), in order for the client to give informed consent to waive the privilege, the lawyer must communicate adequate information to the client about the material risks of and reasonable alternatives to waiving confidentiality. Unless confidential information otherwise becomes general knowledge, it remains confidential throughout the entirety of representation and thereafter.

Rule 1.6(b) enumerates exceptions to the rule of confidentiality, which are more likely to arise in criminal matters and in antitrust enforcement. A lawyer may reveal information relating to the representation of a client to the extent the lawyer believes necessary to:

  • Prevent reasonably certain death or substantial bodily harm
  • Prevent the client from committing a crime or fraud that is reasonably certain to result in substantial injury to the financial interests or property of another and in furtherance of which the client has used or is using the lawyer's services
  • Prevent, mitigate or rectify substantial injury to financial interests or property of another that is reasonably certain to result or has resulted from the client's commission of a crime or fraud in furtherance of which the client has used the lawyer's services
  • Establish a claim or defence on behalf of the lawyer in a controversy between the lawyer and the client, to establish a defence to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved, or to respond to allegations in any proceeding concerning the lawyer's presentation of the client, or
  • Comply with other law or a court order

Attorney-client privilege

The attorney-client privilege is an evidentiary rule that protects confidential communication between clients and their lawyers made in furtherance of obtaining legal services. It applies specifically to judicial and other proceedings in which a lawyer may be called as a witness or otherwise required to produce evidence concerning a client. The attorney-client privilege is distinguishable from the rule of confidentiality because it only applies to confidential communication between the lawyer and the client, and not all confidential information provided by the client. Communication between lawyers and clients is often marked 'lawyer-client' privilege to readily distinguish such communication, although such labelling is not mandatory for the privilege to be applicable.

Some courts have found that the attorney-client privilege may be lost if the attorney or the client discloses privileged communication, even if disclosure was inadvertent.

Work product doctrine

The work product doctrine protects from discovery by opposing counsel material that an attorney (or the client, at the direction of an attorney) has prepared in anticipation of litigation. There are two types of work products – opinion work product and ordinary work product. Opinion work product includes an attorney's mental impressions, attorney notes and documents reflecting strategies. Ordinary work product includes factual information separate and apart from legal analysis, such as transcripts of witness interviews, reports of non-testifying experts and financial records from the client. Courts tend to give greater protection to opinion work product. Under Rule 26 of the Federal Rules of Civil Procedure, an opposing party in litigation may get access to lawyer work product if it can show that it 'has substantial need for the materials to prepare its case and cannot, without undue hardship, obtain their substantial equivalent by other means'.

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

Courts have taken two approaches to legal professional privilege between in-house counsel and corporate employees. Some courts have adopted the 'control group test', which limits privilege to communication between in-house counsel and corporate employees who have authority to control or participate in the corporation's legal affairs. Under this approach, communication from individuals outside the control group is not protected. Other courts have adopted the 'subject matter test', which limits privilege to communication from corporate employees for the specific purpose of securing legal advice for the corporation. Communication with in-house counsel that relates to business as opposed to legal advice will likely not be protected by privilege.

In the seminal case of Upjohn v. United States, the US Supreme Court found that, for purposes of federal law, communication was privileged when it was for the specific purpose of securing legal advice for the corporation and was within the scope of the communicating employee's corporate duties (449 U.S. 383, 394 (1981)). In Upjohn, communication from lower level employees to general counsel in the form of a confidential questionnaire to learn the extent of any illegal payments was considered to be privileged information.

Some corporations choose to waive the attorney-client privilege when they are under pressure from the government to do so during a criminal investigation. This has been the topic of much debate, and the US Department of Justice has altered its policies to reduce the pressure on corporations to waive the privilege.

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

Perhaps under such circumstances, US courts apply a choice-of-law analysis to determine whether domestic or foreign law governs the question of privilege. Otherwise, the court will apply the relevant foreign legal professional privilege law. Federal and state courts take different approaches to the choice-of-law analysis.

In federal courts, under Section 501 of the Federal Rules of Evidence, federal common law governs the attorney-client privilege to give courts the flexibility to develop rules governing legal professional privilege on a case-by-case basis. If the federal court finds that domestic law should apply, then the US concept of the attorney-client privilege protects correspondence with non-national qualified lawyers.

Most federal courts apply the 'touch base' approach when determining whether correspondence with non-national qualified lawyers is privileged. Under this fact-specific analysis, 'any communications touching base with the United States will be governed by the federal discovery rules', including the attorney-client privilege (Duplan Corp. v. Deering Milliken, Inc., 397 F. Supp. 1146, 1169 (D.S.C. 1974)). The Southern District of New York recently applied the 'touch base' approach in a trademark infringement case, and found that even communication between a US client and a non-national agent of a non-national lawyer was privileged under US law (Gucci America, Inc. v. Guess?, Inc., 271 F.R.D. 58 (S.D.N.Y. 23 September 2010)).

At the state court level, courts tend to follow one of two approaches when determining whether correspondence with non-national qualified lawyers is privileged. A minority of the states (including Nevada, Connecticut and Virginia) apply the 'territorial approach' under which courts apply the legal professional privilege laws of the forum state. On the other hand, most states (including California, Delaware, Florida, Illinois, Maryland, New York and Texas) apply the 'most significant relationship' test, under which courts apply the legal professional privilege laws of the jurisdiction that has the 'most significant relationship' with the communication, unless admission  would be contrary to public policy. Accordingly, if the 'most significant relationship' with the communication is determined to be a foreign jurisdiction, and if such jurisdiction would not protect such communication (eg because the lawyer was an in-house counsel), the law of the foreign jurisdiction will govern.

A few states that apply the 'most significant relationship' test, including California, Delaware, Florida and Texas, have broadly defined 'lawyer' to include all licensed lawyers so that legal professional privilege extends to correspondence with non-national qualified lawyers. In these states, if the state court finds that its own jurisdiction has the 'most significant relationship' with the communication in question, it is clear that the attorney-client privilege applies, no matter the nationality of the licensed lawyer.

In other states, if the court determines that its own laws apply, either based upon the 'territorial approach' or the 'most significant relationship' test, the determination to protect correspondence with a non-national lawyer will depend on that individual state's laws and the results may vary.

How is legal professional privilege waived?

Unless care is taken, there are a number of situations where the lawyer-client privilege may be held not to apply or will be considered waived. Examples of how this may occur include:

  • Communications include persons not in the structured client class
  • Appropriate steps were not taken to ensure that the communications, both written and oral, are undertaken in confidence, and
  • There are either intentional or unintentional waivers of the privilege (eg by unintentionally disclosing privileged materials in discovery or by voluntarily providing privileged information to the government during an investigation).

Legal professional privilege in the context of merger control

The attorney-client privilege and work product doctrine both apply in the context of merger control proceedings. In the event that the government demands documents from a party to a transaction, that party may redact or refuse to produce privileged documents. If a party chooses to rely on privilege as the basis for withholding or redacting documents, it must produce a ‘privilege log’, which describes the relevant documents in sufficient detail to demonstrate that a privilege applies (usually by identifying the document title, the name and position of its author, and a brief description of its content). If the government disagrees that a document described in a log is privileged, they may petition a court to order the production of that document.

Last modified 15 Mar 2019

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

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

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

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

Legal professional privilege in the context of civil litigation

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

What is protected by legal professional privilege?

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

How is legal professional privilege waived?

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

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

Legal professional privilege in the context of merger control

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

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

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

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

Waiver of legal professional privilege

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

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

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

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

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

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

Illegality

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

Directors

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

Trustees

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

Gowri Kangeson

Gowri Kangeson

Partner
[email protected]
T +61 39274 5428

Nicholas Tyacke

Nicholas Tyacke

Partner
[email protected]
T +61 9286 8502