Do you have a concept of legal privilege in your jurisdiction which applies to lawyer-led investigations? If so, please provide details on the extent of that protection.
Bribery & Corruption
There are two types of legal privilege in Australia: litigation privilege and legal advice privilege. Depending on the circumstances, both of these may apply to lawyer-led investigations.
In both instances, parties may have the right to withhold certain confidential communications from disclosure (including from opponents in litigation, regulators and prosecuting authorities) if the communications were created for the dominant purpose of conducting or aiding the conduct of existing, pending or anticipated legal proceedings (litigation privilege), or providing legal advice (legal advice privilege).
There is case law confirming that legal advice privilege can extend to factual investigations carried out by lawyers to enable them to advise a client on the risks it faces and the course of action it should take (AWB Limited v Cole (No 5) (2006) 155 FCR 30).
Legal privilege in Poland originates from a lawyer's duty to keep the client's affairs confidential. The duty of confidentiality of lawyers is legally protected by the their right to remain silent if examined as a witness. This also covers documents related to legal advice and communications between lawyers and their clients related to legal advice. Documents generated in a lawyer-led investigation may therefore be covered by legal privilege.
If in criminal investigations an attempt is made by government authorities to seize privileged documents, they should be placed in opaque, sealed bags or envelopes and referred to the public prosecutor or the court. The court may waive the legal privilege only if such documents are the only possible avenue of obtaining the relevant information. Such waiver is not possible with respect to documents protected by privilege related to white collar defence.
Any requirement to disclose documents obtained through an internal investigation to the Irish authorities is qualified by legal professional privilege. In Ireland, documentation may attract legal professional privilege, either in the form of legal advice privilege or litigation privilege. Legal advice privilege arises in communications between a lawyer and their client where there is no actual or potential litigation, but the client is seeking advice and not merely legal assistance. Litigation privilege applies to communications between a lawyer and a client made in the context of contemplated or existing litigation. It is the broader form of legal professional privilege and also covers communications with third parties, such as experts. Privilege over any document is a right of the client, which he or she may choose to waive. In general, the disclosure of a privileged document to a third party will waive privilege. In certain circumstances and subject to specific conditions, the Irish courts will accept that disclosure of an otherwise privileged document to a third party for a limited and specified purpose can occur without privilege being waived.
Under the Brazilian Federal Constitution, the confidentiality of legal communications prepared for professional use; the attorney-client privilege; and the inviolability of lawyers’ offices and related work files are considered fundamental rights.
In addition to the provisions of the Brazilian Federal Constitution, the Code of Ethics issued by the Brazilian Bar Association and the Federal Law No. 8.906, of July 4, 1994, which regulates the legal profession in Brazil and the Brazilian Bar Association, also establish the confidentiality of the communications between a client and its lawyer.
In this context, a lawyer-led investigation would be covered by the privilege and confidentiality protections. It is for that reason that the most common structure for an investigation in Brazil is to have the law firm involved in the case hiring all other professionals that may be required, such as auditing and forensic companies, also assuring that all communications are made only between those professionals and the law firm, and the law firm being the only one to communicate with the client – in a sense that the product of work from the other professionals is a work instrument for the development of the attorney’s work. In addition to this protection, it should also be said that under Brazilian laws and regulations the advise on legal matters is exclusive on lawyers, and the provision of such advise by non-legal professionals may be considered an irregular exercise of the legal profession.
According to the provisions of the Code of Ethics issued by the Brazilian Bar Association, all communications of any nature between a client and its lawyer shall be considered confidential and privileged, and therefore should not be subject to disclosure to any third parties (with a few exceptions allowed when the lawyer is under investigation, and which shall be analyzed on a case by case basis). As a result thereof, one may conclude that the elements required for the legal privilege to apply are: (a) that the lawyer is qualified under Brazilian law (and duly enrolled with the applicable Brazilian Bar Section) to practice Brazilian law or that he/she is registered with the applicable Brazilian Bar Section to advise on foreign law, and (b) that the communications exchanged relate to the lawyer’s professional activity with the client.
There are some discussions on whether communications with in-house counsel would also be protected by the confidentiality and privilege provided for in the law. The majority of the doctrine and case law admit that such protection shall apply as long as the in-house counsel is effectively exercising the legal profession (and is not an executive of the company acting on other matters), to the extent that the Brazilian laws and regulations do not establish any distinction between the rights and obligations of in-house and external counsel.
One relevant issued to be noted is that although the client may waive its right to the confidentiality of the communications exchanged with its lawyer, under Brazilian laws and regulations the professional secrecy is an obligation incumbent on the lawyer, who has the right to decide on whether or not disclosing communications when authorized by the client. In other words, even if the client waives the right to the confidential treatment of its communications, it is the lawyer who will decide on the actual disclosure, or not, of such communications.
Although the legal requirements (elements) for the protection of the communications by the privilege and confidentiality are limited to those referred to above, certain recommendations are usually made to assure that privilege and confidentiality will apply, such as: (a) marking as confidential all written communications that may be sensitive, indicating further that privilege shall apply to them, and that they are exchanged in the context of an attorney-client relationship; (b) limiting the content of the communications to legal matters and advice, avoiding the inclusion of other matters such as commercial or business; and (c) avoiding that the communications are forwarded to or disclosed to third parties (which in some cases may be considered as a tacit waiver of the privilege).
The concept of legal professional privilege in England and Wales is considered to be a fundamental human right. If a document is covered by legal professional privilege, it entitles the party claiming privilege to withhold production from those seeking to inspect it. That is so even where the party seeking inspection is a governmental or regulatory body. Documents will attract legal professional privilege provided that they meet the tests for legal advice privilege or legal advice privilege.
Legal advice privilege covers confidential communications between lawyers (acting in their professional capacity) and clients for the purposes of giving or obtaining legal advice. It does not matter whether the advice sought relates to contentious or non-contentious matters.
Litigation privilege covers confidential communications between clients and their lawyers or between either of them and a third party for the purpose of obtaining information or advice in connection with existing or contemplated litigation, that were made: (a) when litigation was in progress or reasonably in contemplation; and (b) with the sole or dominant purpose of conducting that litigation. Crucially, the litigation must be adversarial, not investigative or inquisitorial.
Some documents generated in a lawyer-led investigation may well be covered by legal advice privilege. However, it is unlikely that documents generated in a lawyer-led investigation (or, for that matter, any investigation) will be covered by litigation privilege. That is because, as noted above, litigation privilege is concerned with adversarial litigation only.
As a practical point, the SFO is putting investigated parties under an increasing amount of pressure to waive privilege claims over documents, against the backdrop of co-operation which is necessary to secure a DPA. It has also challenged rules on privilege through the courts (see questions 23 and 25 below).
Firstly, there is a distinction between how the UAE (the mainland) operates and how the Dubai International Financial Centre (DIFC), a major global financial hub for the Middle East, Africa and South Asia markets, and Abu Dhabi Global Market (ADGM), a broad-based international financial centre for local, regional and international institutions, operates with respect to legal privilege.
On the mainland,
- There is no legal privilege as it is recognised in common law jurisdictions and there is no protection for “without prejudice” correspondence.
- The principle for the confidentiality of communication between attorneys and clients is entrenched in the professional codes of conduct that govern the legal profession.
- Article 42 of the Federal Advocacy Law No. 23 of 1991 (as amended) (the Advocacy law) stipulates that an attorney is under a duty to maintain the confidentiality of any information entrusted to them by their clients throughout the course of their profession and can only disclose this information if it is to prevent committing a crime.
- Disclosure is permitted in certain limited instances, such as:
a. With the written consent of the client and the rightful owner of the information.
b. An express court order indicating what must be revealed and to what extent.
c. If the Attorney is accused of a criminal or civil charge stemming from the relationship with the client.
In the DIFC
- The Dubai International Financial Centre (DIFC) is a financial free zone in the Emirate of Dubai exempt from the civil and commercial laws of the UAE and operates largely as a self-regulated common law jurisdiction. The UAE criminal laws regulations, including the regulations on anti-money laundering do still apply in the DIFC
- The DIFC glossary defines privilege as the right of a party to refuse to disclose information of any kind on the ground of a specially recognised legal interest.
- Privileged communication is defined in the Regulations of the Dubai Financial Supervisory Authority’s (DFSA), as “a privilege arising from the provision of professional legal advice and any other privilege properly applicable by law to the communication in question, but does not include a general duty of confidentiality”.
- The Code of Conduct of Legal Practitioners in the DIFC (the DIFC code) imposes a duty on practitioners to keep attorney-client communication private unless the client permits its release, the DIFC court orders the release or it is required by law. This privilege continues even if the client ceases to be a client.
Singapore law recognises legal advice privilege and litigation privilege, both of which are codified under the Evidence Act. In summary:
- Legal advice privilege protects confidential communications between a lawyer and their client made for the purposes of seeking or giving legal advice; and
- Litigation privilege protects confidential communications between a lawyer and their client and/or a lawyer and a third party made in reasonable contemplation of litigation.
Under the Evidence Act, the rules of both legal advice and litigation privilege apply in the context of both civil and criminal litigation. However, it remains untested whether parties can rely on legal professional privilege to refuse to provide documents to authorities conducting criminal investigations. The general consensus is that legal professional privilege does not curtail the powers of courts and law enforcement agencies to order the production of documents. Where such an order for production of documents is made within the remit of the relevant authorities' powers, the subject of the order will likely be required to hand these over irrespective of any privilege that may attach to them. That being said, should criminal proceedings follow, the relevant protection will be afforded to any privileged documents and these will not be able to be produced by the Prosecution as evidence in the proceedings.
In China, although there is not an equivalent regime of legal privilege which prevents the confidential communications between the client and the lawyer being disclosed to third parties, there is a general duty of confidentiality stipulated in the Law on Lawyers, which is imposed on lawyers to keep confidential any state secrets, trade secrets, and privacy obtained in the course of practicing law. The Criminal Procedure Law further provides the defence attorney with the right to refuse to disclose the relevant information of the client in criminal investigations and proceedings, however this is subject to a few exceptions where national security, public security, or individual’s personal security are endangered. However, for the administrative enforcement, no such protection is legally validated if the lawyer is requested by the authorities to disclose certain information pertinent to the client.
The general concept of professional secrecy is not lawyer-specific but is applicable to the practice of law. This concept is regulated under several laws; the CPEUM provides for the protection of private communications and establishes that acts against the privacy and freedom of such shall be sanctioned under criminal laws; Article 36 of the General Professions Law for Mexico City, which regulates Article 5 of the CPEUM, provides that professionals shall keep strict secrecy on matters disclosed to them by their clients.
Regulations for criminal and civil procedures contain provisions stating that persons that receive information by means of their job, position or profession, bound to professional secrecy, are not obliged to testify against their clients.
Pursuant to Article 140 of the LGRA, any person is obliged to assist the authorities within the investigation and resolution of cases involving administrative offences of corruption, except for relatives, spouses and those who have the obligation to maintain professional secrecy.
Greek Law recognises the legal privilege and, also, provides for it protection. Lifting the legal privilege by prosecuting authorities is not done through the general provisions for accessing information considered privileged (financial, tax etc) but following different, special procedures. Legal privilege applies to anything the lawyer has known or obtained because of his/her profession. In view of this, information acquired in lawyer-led investigations are, in principle, covered by legal privilege. There is uncertainty though in respect to the procedures to be followed during lawyer-led investigations either independently or within the context of an internal audit. In case of a dispute whether some information is connected to legal privilege, there are provisions for its resolution. These procedures take effect after securing/seizing such information, so it is always important to indicate in relevant correspondence and/or documents that they contain attorney-client privilege.
Lawyer-led investigations are unknown to Indian law. While the accused is at liberty to seek legal advice and exercise appropriate legal remedy, the accused cannot be allowed a lawyer-led investigation. The Evidence Act, 1872 however recognizes certain communications between an attorney and a client as privileged. Such privileged communication cannot be used as evidence during the course of a trial.
In Angola there are no statutory instruments governing lawyer-led investigations but under Article 65.1 of the Statutes of the Angolan Bar Association, lawyers are obliged not to disclose any information regarding facts related to professional matters which have come to their knowledge through the exercise of their profession that have been revealed by their clients or ordered by these.
As for the criminal procedural framework, lawyers are not obliged either to make statements or to testify, under Article 217.1 of the Angolan Criminal Procedure Code, in relation to the same facts as the ones mentioned above.
The same goes for civil procedural laws, under Articles 616 and 618.1, e) of the Angolan Civil Procedure Law, approved by Decree-Law no. 44129, 1 January 1963, as amended by Law no. 26/15, 23 October 2015.
The legal privilege includes documents or other things related directly or indirectly with the facts subject to privilege.
Lawyer-led investigations are not regulated in Portuguese law, nor are they done in practice. However, to the Bar Association Statute, attorney-client privilege covers all facts that are known in virtue of the offering of legal services.
Under Danish law, the confidentiality between lawyer and client is recognised as a fundamental principle of the legal system. Consequently, it follows from the provisions of the Danish Administration of Justice Act that whether or not the police must be given access to documents and other materials produced or uncovered during lawyer-led investigations must be determined by the same legal standard applied when it is determined whether a lawyer can be compelled to testify/give evidence against his own client. This gives lawyer-led investigations considerable protection.
Currently, the German law contains no provisions to determine lawyer-led investigations. Since the client-attorney privilege only applies in certain cases (section 97 (1) No. 1, 148 Criminal Procedure Code), it is unclear if the connection between an internal investigator and a client is legally protected.
Recently, the extent of the client-attorney privilege was brought to light to a decision by the Federal Constitutional Court (Bundesverfassungsgericht) when the public prosecutor searched the offices of the law firm Jones Day in Munich and seized documents related to the internal investigation at Volkswagen, led by Jones Day. The Federal Constitutional Court preliminary granted an injunction in favour of Jones Day and prohibited the use of the seized documents until a final decision was reached. Although internal investigations in Germany have become more frequent, German law does not determine the terms and conditions of internal investigations. Therefore, the court’s final decision is eagerly anticipated. Furthermore, according to their coalition agreement, the recent German government is intending to adopt legal regulations for internal investigations.
However, the legal privilege applies to the lawyer’s communication with the client and is based on the effective right of defence (Art. 6 (3) of the European Convention on Human Rights and Art. 2 (1), 20 (3) of the German Constitution) and the right to refuse testimony (section 53 (1) No. 1 and 2 of the Criminal Procedure Code).
In Italian jurisdiction there are several rules that regulate the legal privilege and that can to some extent apply also to lawyer-led investigations. Article 200 of the Criminal Procedure Code, for example, states that the lawyer is one of the persons who cannot be obliged to testify on what they have known by reason of their ministry, office or profession, except in cases where they are obliged to report to the judicial authority. Article 103 of the Criminal Procedure Code aims to broaden the protection of the defensive activity, guaranteeing to the defendant’s counsel a very high protection against the possibility for the Public Prosecutor to perform dawn raids and inspection at the lawyer’s office, seize documentation, eavesdrop phone calls, etc. Furthermore, articles 391 bis and following of the Criminal Procedure Code provide for the regulation of the so-called defensive investigations. The lawyers who perform such investigations are entitled with powers similar to those of a Public Prosecutor (they can question possible witnesses, ask them to release statements, etc.).
The Code of Ethics for lawyers, approved by the Dispatch no. 121/GM/92, 31 December 1992, provides the legal framework for the legal privilege.
In its Article 5, this statute provides that the legal privilege:
- Is not limited in time;
- Shall be required by the lawyer to every trainee, associate, secretary or any other person who collaborates in the provision of professional services;
- Facts concerning professional matters that have been disclosed to her/him by the client or by its order or acquired through the exercise of the profession;
- Facts that, due to the position held in the Bar Association, any colleague, under legal privilege in regards to the same facts, have been communicated to the lawyer;
- Facts disclosed by co-author, co-defendant, or co-interested of the client or by their representative;
- Facts that the counterpart or respective representatives have disclosed during the negotiations for an amicable agreement and that concern the dispute;
- Exists regardless of whether the service requested includes the judicial representation or not, shall be paid or not, the lawyer has accepted the service or not, the same applying to the layers which may have had, directly or indirectly, any intervention in the service;
- Extends to documents or other things related (directly or indirectly) with the facts under privilege.
The Code of Ethics further provides that lawyers can not disclose facts protected under legal privilege and that have come to their knowledge through the exercise of their professions. It also provides that any judicial proof obtained through declarations made by a lawyer in breach of privilege is deemed invalid.
The legal privilege is suspended when it is absolutely necessary for the defense of the lawyer’s dignity, rights and legitimate interests or of its client or its representatives, with previous permission granted by the Bar Association. The lawyer may, however, maintain the privilege.
The Code further provides that lawyers ought not to discuss, in public or through the media, any pending issues or issues to be initiated before the courts or other entities, unless the Bar Association justifiably agrees with the necessity of a public explanation which, in that case, will be given exactly as determined in the authorization granted.
The lawyer shall not try to maliciously or reprehensibly influence the resolution of any cases under discussion in Courts or pending matters near other organs.
HRA: We do not have lawyer-led investigations, and, hence, there is no such concept of legal privilege. However, when investigations are conducted against a lawyer or a law firm, they are granted special rights regarding the secrecy of their documents and workplaces.
There is no concept of legal privilege in Japan.
The absence of the discovery mechanism in France and the absence of a duty of disclosure entail that there have been no internal investigations up to now. Thus, the concept of legal privilege in France only refers to a professional privilege.
In addition to their traditional activity, French lawyers are entrusted with a new mission: internal investigations.
This new task, already carried out by French lawyers in other areas of law such as competition law or arbitration, is likely to grow in accordance with the new obligations provided for by the Sapin II Act.
Lawyers will be confronted to emerging challenges, especially considering the absence of a legal or regulatory framework setting out the conditions of French internal investigations.
The Sapin II Act also introduced the CJP, which enables a company charged with bribery, influence peddling or tax fraud laundering, to conclude a criminal transaction with the public prosecutor provided it commits itself to complying with obligations, including the establishment of a compliance program under the supervision of the French anti-corruption agency.
As part of the implementation of these obligations, it is provided that the French Anti-Corruption agency may request the assistance of ‘experts’ and ‘qualified persons to assist it in carrying out legal, financial, tax and accounting analyses’.
Within this context, the lawyer may also be responsible for formulating recommendations to the company and certifying to the French anti-corruption agency the compliance of the company provided for in an agreement, more specifically a complementary penalty may be imposed.
Legal privilege exists under Swiss law, in principle broadly protecting information exchanged with lawyers acting in their professional capacity as lawyers (but not if acting in a mere business capacity). Legal privilege also covers any auxiliaries of the lawyer, e.g. external accountants, forensic specialists etc. Based on the wording of the statutory law, this protection applies only to Swiss attorneys and EU lawyers authorised to practise in Switzerland, and it is not clear whether it also covers advice from external counsel from other jurisdictions.
In civil, criminal or administrative proceedings, documents do not have to be disclosed, and cannot be seized, if they are part of the communication between a person or business and outside counsel, irrespective of their location. Lawyers may also refuse to testify. The legal privilege only extends to external counsel; documents and communication from in-house counsel are not privileged under Swiss law.
Legal privilege fully applies to documents sent to or from external counsel, provided that these documents were created by Swiss attorneys or EU lawyers authorised to practice in Switzerland. Privilege does not extend, however, to pre-existing data or documents, even if it is handed or processed by a lawyer.
Sharing information with another target does not, in principle, amount to a waiver of the legal privilege.
In recent controversial decisions, the Federal Supreme Court has clarified that legal privilege does not extend to tasks outsourced to external counsel if the underlying legal obligation belongs to the company itself, namely compliance obligations relating to anti-money laundering laws. As a result, internal investigation reports analyzing breaches of the anti-money laundering provisions were held not to be legally privileged.
Lawyer-led investigations are in many circumstances protected by the attorney-client privilege and the attorney work product doctrine. To ensure privilege, certain precautions should be taken. The legal investigative team and its support staff should ensure that communications concerning the investigation are kept confidential and shared with company personnel only to the extent necessary. In addition, should it be necessary to retain non-legal professionals, such as forensic accountants or other specialists, they should be directed and overseen by counsel to ensure that privilege extends to those individuals’ work.
The attorney-client privilege and attorney work product doctrine protects materials such as communications between attorneys and the company, attorneys’ notes or memoranda of confidential interviews with company employees, attorneys’ memoranda or other work product concerning the investigation and confidential communications between attorneys and experts who assist the attorneys. Importantly, facts are not privileged; however, communications with attorneys concerning those facts are privileged.