Solicitor-client privilege applies only to communications that give or seek legal advice. This typically includes advice on what should be done prudently and reasonably in a relevant legal context and advice on the effectiveness or consequences of certain actions a client has taken or is considering. It contains advice on how best to present the facts in light of the legal advice given. The privilege is not responsible for purely commercial advice. Consequently, the French authorities may have recourse to in-house legal advice provided by registered in-house lawyers, which are not protected by solicitor-client privilege. For example, the French Court of Cassation has ruled that communications between in-house lawyers are not protected by solicitor-client privilege (Court of Cassation, November 3, 2016, No. 15-20.495). The purpose of this legal principle is to protect an individual`s ability to access the justice system by encouraging full disclosure to legal counsel without fear that disclosure of such communications could harm the client in the future. Class lawyers include those who work in-house, provided that this is done in their capacity as lawyers and not managers. Foreign lawyers are also protected by legal advice privilege under English law. This form of privilege also extends to articling students and paralegals, provided they are supervised.
Solicitor-client privilege is a concept and institution of public order deriving from and protected by the Constitution and is therefore in principle granted a special status (like all rules of public order) which cannot be derogated from without specific legislation, and it cannot be repealed. The parties sometimes waive this protection by consent, but this waiver is not binding or enforceable. Solicitor-client privilege is waived when the documents in question are submitted to a court. It will also be lost if the content of the document loses its confidentiality or if the document was created for the purpose of promoting a criminal or fraudulent scheme. A lawyer is required to protect a client`s solicitor-client privilege and cannot waive it without the client`s express power of attorney. The Law on Legal Practice also regulates the activities of European Community lawyers who provide temporary services related to legal representation. The activities of European Community lawyers providing temporary services other than legal representation in Hungary are governed by the law of the EU Member State in which the European Community lawyer is registered. In the case of those European Community lawyers, the Law on Legal Practice and the Rules of the Hungarian Bar Association would apply, even if there is no established practice in the territory of Hungary. Assessing the applicability of the BVG often requires delicate and difficult considerations, and there can be serious consequences if you disclose preferred material without your client`s consent. For these reasons, it is important that lawyers take great care to provide clients with appropriate advice on the BVG.
Where adversarial proceedings exist or are reasonably foreseeable, a criterion of `dominant purpose` shall be deemed to be privileged in order to protect as confidential all confidential documents drawn up for the purpose of providing or obtaining legal advice in connection with that dispute or of contributing to the conduct of that dispute. Determining the purpose of a document can be problematic, especially since the criterion is that of dominance and not exclusivity. However, the court will objectively assess the purpose of a document. Companies and their lawyers need to be aware of these differences and understand the risks they face in their jurisdictions. It is therefore of the utmost importance to have proper internal procedures on solicitor-client privilege and to assess the differences between the different rules on the confidentiality of communications between lawyers and professionals. Paul is a senior partner and supporting lawyer in the Patents Group of our London office. Protection against the seizure of documents at a lawyer`s premises includes all information provided between a client and a lawyer in the course of the proceedings that has been communicated before or after the commencement of the proceedings before the Authority. The protection of confidential information begins with the simple preparation of representation in the proceedings, especially at the moment when the client contacts the lawyer and uses legal services. Hong Kong law also includes the notion of partial waiver of privileges. If a privileged record is disclosed only for limited purposes (e.g., for investigation by a regulatory body such as the Securities and Futures Commission), it does not follow that the privilege is generally revoked.
The privilege is revoked only for that specific purpose. The rules on professional secrecy stemming from the Law on the Practice of Law would apply to the activity of a foreign in-house lawyer practising law in Hungary as a licensed in-house lawyer (e.g. visa or legal representation). In order to obtain the privilege of legal advice, the primary purpose of the communication must be to provide or receive legal advice. However, legal advice is broader than state of law advice: a tacit waiver also exists when a client questions the cost or appropriateness of legal services or refuses to pay for legal services. In proceedings to review or recover a lawyer`s bill or in an action for negligence against a lawyer, the privilege is implicitly waived to the extent necessary to decide the issues in dispute in such litigation. Under German law, it is in principle not prohibited to seize correspondence prepared and/or exchanged before the opening of the proceedings concerned, even if the correspondence relates to the subject-matter of the proceedings. Includes all members of the legal profession: lawyers, in-house lawyers, lawyers in Ireland and duly accredited foreign lawyers.
Where appropriate, it may also extend to legal managers, paralegals and trainee lawyers. The protection of information obtained in the course of other consultancy assignments is ambiguous, as the rules are linked to the professional status of the adviser established by Finnish law. According to the Lawyers Act, any person entitled to exercise legal representation in one of the member states of the European Economic Area (EEA) is obliged to comply with the ethical rules applicable in Finland, including his obligations of professional secrecy, when representing a client before a court or authority or when carrying out other activities in Finland. Similarly, the provisions on lawyers under Finnish law and the decision of the Ministry of Justice on the status of the Finnish Bar apply to a lawyer registered in the Union Register (see footnote 1). Therefore, solicitor-professional confidentiality applies at least to foreign lawyers registered in the EU, as well as to other qualified EEA lawyers practising in Finland. In other situations, the legal status is not as clear and, to our knowledge, the limits of personal privilege have not been discussed in legal practice. Lawyers who are nationals of another EU Member State, a State party to the EEA Agreement or Switzerland and who are admitted to the Bar in at least one of these countries have the same rights and obligations regarding legal professional secrecy as Bulgarian lawyers admitted to practise before one of the Bulgarian local bar associations. Communication with registered in-house lawyers is therefore not protected by Union legal secrecy, even if the in-house lawyer is a member of the bar association or bar concerned, irrespective of the status of the in-house lawyer registered under national law. The Court of Justice of the European Union has ruled that the relationship of an in-house lawyer registered as an employee of the company naturally does not allow him to ignore the commercial strategies of his employer.
Communication with lawyers admitted outside the EEA is not protected. In the absence of case law on professional secrecy in the context of merger control, companies may invoke the fundamental professional secrecy of Federal Law 8 906/94 to prevent the misuse of inside information by the Competition Authority (CADE). Any breach of legal privilege by CADE in connection with a merger application could be challenged in court, and any decision by the regulator that misuses privileged data may be declared null and void by a court. CADE may then be required to reassess the merger notice and only use content that does not violate Brazilian legal privilege, causes delays, compromises law enforcement and poses a reputational risk to the authority. The decision will be made by a court using Brazilian federal laws, which are not necessarily consistent with CADE regulations. None of the Austrian competition laws contains express provisions on professional secrecy in merger control proceedings or in general. So far, no cases on solicitor-client privilege have been heard before the Austrian Cartel Court. Attorneys may not disclose non-public information obtained from their clients or otherwise obtained in the course of the attorney-client relationship, regardless of the nature of such information or the manner in which it is disclosed/obtained.