What is protected by legal professional privilege?
Professional secrecy applies to all information pertaining to the client and their affairs brought to the attention of the lawyer by their client, or of which the lawyer has gained knowledge through the exercise of their profession, whatever the source of the information. It applies also to all documents and information emanating from the lawyer advising, representing in court or assisting their client.
It covers all legal advice given to or intended for a client, all correspondence between the lawyer and their client as well as with other lawyers, notes of meetings and generally all information received by the lawyer in the exercise of their profession, the name of the client of the lawyer, the diary of the lawyer and the financial arrangements between the lawyer and their client.
Correspondence and discussions between lawyers are protected by professional secrecy, unless the correspondence:
- is marked as "official" and does not contain any information confidential by nature;
- comprises a formal and unconditional agreement between parties; or
- is not confidential by nature (letter sending a brief or asking for a document or a procedural act).
Are communications with in-house counsel protected by legal professional privilege?
In the absence of any specific legislation recognizing legal professional privilege for in-house counsel and in view of the fact that the latter are bound by an employment contract with their employers, it may be expected that the advisory activity of in-house counsel is not protected by professional secrecy.
Does legal professional privilege apply to the correspondence of non-national qualified lawyers?
Lawyers should exercise caution when communicating with lawyers who are not subject to the rules of the Luxembourg Bar, as the rules governing legal professional privilege may vary from one country to another. At European level, the recommendations in article 5.3 of the CCBE Code of Conduct for European Lawyers should preferably be followed.
How is legal privilege waived?
Although the law requires a lawyer to keep confidential all matters entrusted to them by their client, the reverse is not necessarily true as nothing prevents the client from disclosing to third parties what they have disclosed to their lawyer (in other words, the client does not owe any obligations of confidentiality).
In some cases, the court has:
- set aside the minutes of an investigation initiated by an individual who was handing over correspondence between their lawyer and another lawyer; and
- denied the application of a lawyer to file a complaint against another lawyer on the basis of an alleged criminal offense committed by the latter which threatened their client.
Pursuant to the 2013 Regulation, a lawyer may disclose confidential information if:
- she/he determines that this disclosure is in the best interests of the client; and
- her/his client has authorized them to do so after having been duly informed of the nature of the information to be disclosed and the proposed recipients of the information.
There may also be situations where a 'state of necessity' or other principles take precedence over professional secrecy thereby releasing a lawyer from their obligations of legal professional privilege. An explicit reference to the 'state of necessity' was mentioned in 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.