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.