Attorney-client communications

Elements

Describe the elements necessary to confer protection over attorney-client communications.

To be protected, communications between an attorney and a client must fall within typical attorney professional activity (ie, defence, representation, provision of other legal assistance). Within the above activities, it does not make a difference whether the communication is from attorney to client or vice versa.

Further, the law does not provide additional requirement in relation to such protection (ie, it shall not matter when communication occurred or where it took place or where its records are located, whether in the client’s or the attorney’s premises). Also, the involvement of third parties in such communication, upon the will or consent of client, shall not be considered as a waiver of privilege.

If the third party that does not have a duty to observe confidentiality discloses the information, it may result in factual loss of protection as there is no specific procedure to preclude the third parties from using it. Also, in terms of criminal proceedings, law enforcement agencies should not be precluded from interrogation of a third party familiar with the relevant information.

Exclusions

Describe any settings in which the protections for attorney-client communications are not recognised.

As stated above, the protection of attorney-client privilege is generally recognised if it falls within the scope of typical attorney professional activity.

In criminal proceedings, the attorney-client privilege may not be invoked if the attorney is also charged with a related criminal offence, depending on particular circumstances.

Further, as there are discrepancies in the laws and different approaches to interpretation in relation to safeguards for attorney activity, in practice, the attorney-client privilege is not always complied with in criminal proceedings.

The Law On the Bar and Advocates’ Activity (articles 22 and 23), generally, prohibits access to or seizure of information or documents falling under attorney-client privilege, even for the purpose of criminal investigation. At the same time, the Criminal Procedure Code of Ukraine (article 161) clearly prohibits access (and subsequent seizure) of communications between attorney and client, if the attorney acts as defender, that is, they represent the suspect or accused.

Based on this, in certain cases, the law enforcement agencies argue that they are entitled to access the relevant materials if, for instance, the notice of suspicion in criminal proceedings was not served.

Further, the Criminal Procedure Code of Ukraine permits, under certain circumstance, the seizure of material evidence, including documents (ie, tangible objects that have been used as an instrument in a criminal offence or retain traces or contain other information that may be used to prove facts or circumstances to be established in the course of criminal proceedings; items that have been an object of a criminal offence; money, valuables or other articles obtained in an unlawful manner or gained as a result of a criminal offence).

In some instances, the law enforcement agencies act as though this provision overrides attorney-client privilege. The approach of the courts varies and, in some instance, investigative judges allow the seizure and arrest of material evidence the attorney’s documents falling with the attorney-client privilege as well as technical devices (eg, cell phones) containing attorney-client communications.

Who holds the protection?

In your jurisdiction, do the protections for attorney-client communications belong to the client, or is secrecy a duty incumbent on the attorney?

Generally, the attorney-client privilege is established in the client’s interests. At the same time, the attorney determines whether respective communications fall under attorney-client privilege and it is the duty of the attorney to observe it.

The above duty survives attorney-client relations and goes beyond the client’s death. The attorney may be released from this duty only on consent of the client or his or her successors.

Further, the Rules of Professional Conduct (article 10) establish that even if released from the above duty by the client, the attorney may continue to keep information and documents in attorney secrecy status and refuse to provide them to third parties for the purpose of professional activities.

Underlying facts in the communication

To what extent are the facts communicated between an attorney and a client protected, as opposed to the attorney-client communication itself?

Under the law, attorney-client privilege covers the communication between an attorney and a client on factual information if within the scope of an attorney’s typical professional activity. To the best of our knowledge, we are not aware of cases in which the above approach was challenged; for example, on the basis that the communication or work product contains only information on facts, or that the attorney became aware of these facts from other sources.

Agents

In what circumstances do communications with agents of the attorney or agents of the client fall within the scope of the protections for attorney-client communications?

The Law On the Bar and Advocates’ Activity does not answer this question directly. In terms of the duty of confidentiality, reference is made to an attorney’s assistant, a trainee or people employed by an attorney, so communication should be protected from them.

Based on the general principles that ‘information about a client that an attorney became aware of’, ‘the matters on which a client applied to an attorney’ and ‘any other documents or information received by an attorney while providing legal assistance’ fall within attorney secrecy, it could be argued that where outside investigators or forensic accountants are engaged by the client or by the attorney for the purposes of legal advice to the client, the communication between them and the attorney and prepared materials fall within attorney secrecy. At the same time, we are not aware whether such approach has been tested in landmark cases.

Corporations claiming protection

Can a corporation avail itself of the protections for attorney-client communications? Who controls the protections on behalf of the corporation?

Yes. Under the law, ‘client’ means, inter alia, an individual or a legal entity. Thus, if a corporation itself engaged an attorney, it can avail itself of the above protection. Such a decision shall be made by directors or other officers authorised to legally represent it.

Communications between employees and outside counsel

Do the protections for attorney-client communications extend to communications between employees and outside counsel?

The law does not provide clear guidance in this regard. As a minimum, communication between directors and officers of the company authorised to represent it and the attorney shall fall under the scope of attorney-client privilege (if an outside counsel falls under the definition of an attorney according to the Law On the Bar and Advocates’ Activity and provides legal assistance to a corporation within the typical professional activity).

As to best practices in this regard, it is advisable to establish in writing who will be the contact person on behalf of the company in communication with the attorney and to retain written records from the respective contact person requesting or authorising communication between employees and outside counsel in the course of provision of legal assistance to the corporation.

Outside counsel that is not an attorney under the Law On the Bar and Advocates’ Activity does not enjoy the privileges and safeguards envisaged in this law. Thus, communications between a corporation, its employees and such counsel does not have the status of attorney-client privilege. The outside counsel may have a confidentiality duty under the respective contract with the corporation.

See also question 2.

Communications between employees and in-house counsel

Do the protections for attorney-client communications extend to communications between employees and in-house counsel?

See question 2.

Communications between company counsel and ex-employees

To what degree do the protections for attorney-client communications extend to communications between counsel for the company and former employees?

The law does not provide a direct answer to this. The past communications between the attorney and employee as described above (when the employee was part of the corporation) shall fall under the scope of attorney-client privilege.

However, it is unlikely that attorney-client privilege will extend to current communications of outside counsel (that is the attorney under the terms of the Law On the Bar and Advocates’ Activity) with the former employee who is no longer a part of the corporation. If such communication is required in the course of legal advice to the corporation, the former employee could be viewed as a third party in correspondence between the corporation and the attorney.

As to communication with in-house counsel, see question 2.

Who may waive protection

Who may waive the protections for attorney-client communications?

Generally, the law provides only one type of waiving of protection of the attorney’s secrecy - the written statement of the client.

Also, the attorney is released of the duty to observe confidentiality to the extent required for protection of his or her rights and interests in case the client files a complaint in relation to his or her professional activities.

Actions constituting waiver

What actions constitute waiver of the protections for attorney-client communications?

As described above, the waiver of a client shall be formalised in a written statement. While the law is not clear in this regard, public disclosure by the client of materials subject to attorney-client privilege may result in factual loss of protection as there is no specific procedure to preclude the third parties from using them.

Accidental disclosure

Does accidental disclosure of attorney-client privileged materials waive the privilege?

Under the law, an attorney that accidentally discloses attorney-client privileged materials could be held liable for such disclosure.

While the accidental disclosure by an attorney or client does not constitute a proper waiver of privilege (as the law provides only for express waiver by the client), the materials disclosed may factually lose the protection, as there is no specific procedure to preclude the third parties from using them.

Sharing communications among employees

Can attorney-client communications be shared among employees of an entity, without waiving the protections? How?

See question 11. As to the best practices in this regard, it is advisable to establish in writing who will be the contact persons on behalf of the company in communication with the attorney and to keep the information, which is intended to be protected, within the circle of respective persons.

Exceptions

Describe your jurisdiction’s main exceptions to the protections for attorney-client communications.

The attorney-client communications may lose the status of attorney-client privilege upon a written statement of a client.

Also, where a client complains against an attorney in relation to his or her professional activities, the attorney is released from duty to observe secrecy to the extent necessary to protect his or her rights and interests.

Further, under the law, submission of certain information to the state authorities to comply with requirements of money laundering and financing of terrorism statutes is not viewed as a breach of professional secrecy by attorneys.

The law or court practice does not provide clear reference to crime or fraud exception or alike. For example, an attorney does not have a duty or right to report to law enforcement agencies the intentions of a client to commit serious crime.

At the same time, owing to different approaches to interpretation and discrepancies in the laws, in practice there are exceptions (see question 6).

Litigation proceedings overriding the protection

Can the protections for attorney-client communications be overcome by any criminal or civil proceedings where waiver has not otherwise occurred?

Generally, no in relation to all information entrusted to the attorney in his or her professional capacity and if the attorney is not charged in the same context.

For issues arising in practice, see questions 3 and 6.

Recognition of foreign protections

In what circumstances are foreign protections for attorney-client communications recognised in your jurisdiction?

Generally, protection of attorney-client communications may be invoked only if a lawyer falls under the definition of attorney under the Law On the Bar and Advocates’ Activity.

The above Law, generally and in establishing such protection, applies only to attorneys practising in Ukraine. The foreign attorney may be admitted to practise in Ukraine under certain conditions (or can practise in Ukraine in accordance with international agreement). If so, his or her communications with the client will be protected. Otherwise, the communications between the client and a foreign attorney are not protected.

Further, in civil and commercial proceedings, Ukrainian courts could examine witnesses at the request of foreign authorities in accordance with the Convention on the Taking of Evidence Abroad in Civil or Commercial Matters (18 March 1970), to which Ukraine is a party. Under article 11 of the above Convention, the witness may refuse provision of evidence, among other things, under the law of the state of origin, where the privilege or duty has been specified in the letter of request to the Ukrainian authorities.

Best practice to maintain protection

Describe the best practices in your jurisdiction that aim to ensure that protections for attorney-client communications are maintained.

It is advisable for the attorney and client to indicate that their correspondence has attorney-client privilege status, by marking it as such (eg, ‘privileged and confidential’).

It is recommended not to misuse the protection for communications that is out of the scope of attorney-client privilege.

Materials (hard copies or stored electronically) received or created by an attorney in the respective case that fall under the scope of attorney secrecy (as an attorney determines in accordance with the law) shall be marked as such (eg, attorney dossier).

The duty to observe confidentiality also lies with attorney assistants, trainees and employees. For this purpose, the attorney may ask them to sign a confidentiality undertaking.

Also, an attorney shall not voluntarily cooperate with law enforcement or other state authorities (eg, provision of testimonies, confidential documents) and take proactive steps where access or seizure happens (eg, to complain to the court, require the return of respective materials).