Attorney-client communications

Elements

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

Any information related to the provision of assistance by advocates is subject to advocate secrecy. Such information cannot be disclosed by the advocate without the client’s permission. Items, documents or information included in the advocate’s materials are covered by advocate secrecy. Such documents obtained by investigative authorities are considered inadmissible as evidence.

Advocate secrecy also extends to the advocate’s assistants, interns and other employees.

Exclusions

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

Information pointing to the abuse of the right to legal assistance committed by both a lawyer and a client (for instance, crimes against justice) is not protected by the advocate-client privilege.

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?

The client has a right to release the advocate from his or her obligation to maintain advocate secrecy.

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?

Advocates are obliged to maintain confidentiality of any communication with the client, including:

  • the fact the client has applied for legal assistance;
  • documents and evidence collected in the course of preparation for the case;
  • information about the client;
  • details regarding legal advice and recommendations; and
  • the terms of the agreement.
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?

All information received by the advocate in the course of legal assistance constitutes advocate secrecy. Agents are not restricted in their usage of such information or its disclosure. The advocate is responsible for all agents to whom they have provided the confidential information.

Corporations claiming protection

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

Advocate-client privilege protects any sensitive information regardless of who (corporation or individual) has provided it. Therefore, corporations could use protection for advocate-client communications. The formal representative of the corporation (usually the managing director) or in-house counsel controls the protection of advocate-client privilege.

Communications between employees and outside counsel

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

Such protection extends to communications between employees and outside counsel, if the latter is an advocate.

Communications between employees and in-house counsel

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

Communications between employees and in-house counsel do not fall under any special protection.

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?

Attorney-client communications are protected only when legal assistance is provided by an advocate, notwithstanding the status of the client. Advocates may not work as in-house counsel.

Who may waive protection

Who may waive the protections for attorney-client communications?

As a general rule, only a client can waive the protection for advocate-client communication.

Actions constituting waiver

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

A written statement of a client constitutes waiver of the protections for advocate-client communications.

Accidental disclosure

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

No.

Sharing communications among employees

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

Clients have the right to share any confidential information with anyone of their choosing (eg, employees of an entity). The attorney-client privilege is not extended to such communications.

Exceptions

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

Advocates should inform the state authorities of suspicions of money laundering or terrorism.

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?

Law gives no protection to advocate-client communications when legal services were rendered in the assistance of a crime. Advocates are also allowed to use information from a client to a reasonable extent in a civil dispute between him or her and the client, or when necessary to protect him or herself from criminal liability.

Recognition of foreign protections

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

Russian rules on professional privilege apply within Russia. Russian laws do not recognise foreign protection for attorney-client communication. We have no experience of such a case.

Best practice to maintain protection

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

Advocate secrecy and disclosure of advocate secrecy are controlled by the regional bar associations. In general, intentional, as well as accidental, breach of advocate secrecy is considered a very serious offence that may cause termination of the advocate’s status.