Domestic legislation

Attorney-client communications doctrine

Identify and describe your jurisdiction’s laws, regulations, professional rules and doctrines that protect communications between an attorney and a client from disclosure.

Several pieces of legislation give protection to the confidentiality of attorney-client communications, such as:

  • the Brazilian Constitution;
  • the Code of Ethical Conduct issued by the Brazilian Bar Association;
  • Federal Law 8,906/94, which governs the Brazilian legal profession;
  • the Code of Civil Procedure;
  • the Code of Criminal Procedure; and
  • the Criminal Code.

A broad concept of protection is found in the Brazilian Constitution and comprises:

  • the confidentiality of legal communications prepared for professional use;
  • attorney-client privilege; and
  • the inviolability of lawyers’ offices and related work files.

As a result of this constitutional protection, communications between a client and its lawyer are deemed to be confidential and not subject to disclosure to third parties. Lawyers are also prevented from serving as witnesses in the course of legal work, even if the client authorises the deposition. Exceptions to the general rule of confidentiality occur in very few situations and need to be carefully analysed on a case-by-case basis.

In-house and outside counsel

Describe any relevant differences in your jurisdiction between the status of private practitioners and in-house counsel, in terms of protections for attorney-client communications.

In Brazil, as long as the communication involves legal issues and provided that the attorney is licensed or registered at the competent Brazilian bar, the privilege prevails. Brazilian law draws no specific distinction between external and in-house attorneys in relation to professional rights, duties and protections. Besides this, in general, under the Brazilian system, non-legal professionals are not allowed to advise on legal issues.

In the exceptional cases in which they are authorised to do so (eg, filing habeas corpus or acting in administrative proceedings), non-legal professionals cannot benefit from privilege, which is exclusive to those duly licensed at the Brazilian bar.

Work-product doctrine

Identify and describe your jurisdiction’s laws, regulations, professional rules and doctrines that provide protection from disclosure of tangible material created in anticipation of litigation.

In Brazil, there is no specific work product doctrine. Nevertheless, article 7(II) of Federal Law 8,906/94 sets forth that a lawyer has the right to the ‘inviolability of its office or place of work, as well as its work instruments, and written, electronic, telephonic and telematics correspondence, as long as [it is] related to the legal profession. Commentators understand that:

considering that the law makes reference to the inviolability of attorneys’ files and data, they will be covered by such rule in any environment and situation that they are placed. (Mamede, Gladston. The legal profession and the Brazilian Bar Association, Second edition, Atlas, 2003, page 193.)

This inviolability may be breached by court order in cases where the lawyer is being criminally investigated or when there is a paramount interest of justice.

In any case, the question of whether or not a certain document is protected from discovery as a result of the work product doctrine does not come up often, as Brazil does not have the concept of ‘pretrial discovery’, as in some common law jurisdictions. This means that, as a general rule, a party may not be obliged to disclose documents against its interests (this is set forth in the Constitution, in the Code of Criminal Procedure, in the American Convention of Human Rights and in the Code of Civil Procedure).

Under Brazilian law, the basic rule is that the plaintiff has the burden of proving its rights and the defendant has the burden of proving its arguments of defence. That is to say, in principle, each party must produce its own documents.

Claims for disclosure require a detailed description and identification of the requested documents and an indication of the purpose for which they are being sought. The requesting party may also be compelled to state the reasons why they believe that the requested documents are in the other party’s possession and cannot be produced otherwise. However, the judge may order the production of documents that are in possession of the other party (or a third party), but only if:

  • the documents to be produced are clearly identified (no ‘fishing expedition’ is admitted);
  • there are reasons for the requesting party to believe that the documents are in the other party’s possession; and
  • the requested documents are relevant to the outcome of the case.

If the party refuses to produce the document, the judge will not allow the refusal if:

  • the party has a legal obligation to produce;
  • the party makes reference to the document as a means of evidence; and
  • the document is considered ‘common’ to the parties (eg, a contract).

Nevertheless, in view of the broad protection afforded by the Constitution and the law on attorney-client communications and on a lawyer’s ‘work instruments’, the lawyer can certainly object if any of the parties seek production of a certain document prepared by the lawyer in the exercise of the legal profession.

Recent case law

Identify and summarise recent landmark decisions involving attorney-client communications and work product.

There are several decisions confirming the protections related to the confidentiality of legal communications for professional use, and the inviolability of lawyers’ offices and their work files.

The Superior Court of Justice, which is Brazil’s highest court in terms of federal law interpretation, issued a decision considering a judicial order for search and seizure of documents (mainly internal correspondences of the legal department, related to an audit in certain loans, and technical opinions about the regularity of certain contracts) at the legal department of a state-controlled bank illegal for violating the attorney-client confidentiality rules (RMS 27.419-SP, 5th Panel, reporting justice Napoleão Nunes Maia Filho, published on 22 June 2009).

The same Court issued decisions:

  • disregarding the inviolability of lawyers’ work files considering the fact that they were being criminally investigated and that the corresponding files were not related to the legal profession (RHC 66.730-RJ, 6th Panel, reporting justice Nefi Cordeiro, published on 1 April 2016);
  • determining that an accidental recording of a conversation between the attorney and his or her client, who is being investigated, does not represent breach of professional secrecy by the attorney (AREsp 457522-SC, 6th Panel, reporting justice Rogerio Schietti Cruz, published on 25 November 2015); and
  • understanding that communications held by phone between lawyers and their clients should be disclosed, since one of the attorneys involved in the case was being criminally investigated (AgRg 416.098-RS, 5th Panel, reporting justice Joel Ilan Paciornik, published on 1 February 2019).

In addition, the Ethics Court of the Bar Association of the State of São Paulo, which rules cases involving the compliance of attorneys’ professional duties, issued decisions:

  • stating that professional secrecy is a perpetual duty incumbent on the attorney and authorising the disclosure of privileged documents with the purpose of defending the attorney’s honour and dignity (Case E-4.916/2017, reporting justice Fabio Plantulli, published on 21 September 2017); and
  • understanding that an attorney did not comply with professional secrecy when recording a client’s meeting without their prior authorisation (Case E-5.088/2018, reporting justice João Luiz Lopes, published on 16 August 2018).

Attorney-client communications

Elements

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

The Code of Ethical Conduct of the Brazilian Bar Association provides that communications of any nature between a client and their lawyer are deemed to be confidential and not subject to disclosure to third parties. Thus, the privilege:

  • covers all communications related to the attorney’s professional activity with a client; and
  • applies to any lawyer licensed at the competent Brazilian bar to practise Brazilian law or registered at the competent Brazilian bar to advise on foreign law in Brazil.

Exclusions

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

As a general overview, the protections for attorney-client communications may not be recognised in the following situations:

  • if the communication is in furtherance of a crime, or to avoid a threat to one’s life or honour;
  • for the attorney’s own protection and defence against the client, but limited to such defence purposes; and
  • if previously authorised by a client to disclose (waiver), except for the attorney to serve as witness.

These are the situations in which the attorney may breach the confidentiality granted by the attorney-client privilege. The attorney may raise the arguments above at any time (ie, during a litigation, an investigation or any other proceeding in which the attorney intends to disclose the privileged documents). It is also important to mention that courts may disregard the protections for attorney-client communications where justice so requires.

 

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?

In Brazil, professional secrecy is an obligation incumbent on the attorney. The Criminal Code establishes, in its article 154, that it is a crime to reveal, without just cause, a secret that a person knows by virtue of his or her profession. The Code of Ethical Conduct of the Brazilian Bar Association provides that the attorney has the duty of keeping confidential all facts learned during the exercise of the legal profession, even against the client’s instructions.

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?

The facts are also protected. For example, the attorney is not obliged to testify about facts related to his or her clients’ cases.

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 protection will prevail only if the communication is exchanged with an attorney duly licensed or registered at the competent Brazilian bar. On the other hand, there is no difference if the communication is exchanged with agents of the client, provided that it refers to legal issues and is thus prepared in the exercise of the legal profession.

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. If a corporation is a client, the communication exchanged with an attorney will be considered confidential owing to the protection of the attorney-client privilege. The general rule is that all communications between clients and their attorneys are deemed to be confidential. The law does not provide an answer on who controls the protections on behalf of the corporation, so this question must be decided on a case-by-case basis.

Communications between employees and outside counsel

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

Yes. Brazilian law draws no specific distinction between in-house and outside counsel in relation to lawyers’ professional rights and duties. As long as the communication involves legal issues and the attorney (in house or outside) is licensed or registered at the competent Brazilian bar, the privilege extends to communications between employees (clients) and outside attorneys.

Communications between employees and in-house counsel

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

Yes. Brazilian law draws no specific distinction between in-house and outside counsel in relation to lawyers’ professional rights and duties. As long as the communication involves legal issues and the in-house attorney is licensed or registered at the competent Brazilian bar, the privilege extends to internal communications between employees and in-house counsel. In addition, the Code of Ethical Conduct of the Brazilian Bar Association provides that an in-house attorney must also preserve his or her liberty and independence.

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 protection will prevail as long as the communication involves legal issues (ie, a former employee is treated as a client) and provided that the counsel acts in the exercise of the legal profession.

Who may waive protection

Who may waive the protections for attorney-client communications?

The client may waive the protection and authorise the disclosure of the communication. However, professional secrecy is an obligation incumbent on the attorney, who may decide whether or not to disclose the communications, even with the client’s authorisation. Also, as mentioned in question 6, attorneys may breach the confidentiality granted by the attorney-client privilege in a few situations, such as:

  • if the communication is in furtherance of a crime, or to avoid a threat to one’s life or honour;
  • for the attorney’s own protection and defence against the client, but limited to such defence purposes; and
  • if previously authorised by a client to disclose (the waiver), except to serve as witness.

Actions constituting waiver

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

If a privileged communication or document is given to a third party by the client or with the client’s authorisation, the client will be deemed to have waived confidentiality, and confidentiality will be lost. In contrast, if a privileged communication or document is given to a third party by the attorney in illegal breach of the obligation of confidentiality, then confidentiality will not have been waived.

Accidental disclosure

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

In theory, no. However, this situation would have to be analysed on a case-by-case basis. If, for example, a privileged document is disclosed accidentally and becomes public, the secrecy is lost in a practical perspective. As mentioned in question 15, in order to waive the privilege, the client would have to authorise the disclosure or give the document to a third party.

The other situations in which the protection may not be applied are those described in question 6 (when the attorney may breach confidentiality).

Sharing communications among employees

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

Considering that the attorney-client privilege protects confidential communications between client and counsel (including both in-house and external counsel), if the communication is shared among employees that are not involved with the legal issues in discussion with the attorney, there is a probable risk of losing the protections and the confidentiality.

Exceptions

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

Exceptions to the general rule of confidentiality occur in very few situations and need to be carefully analysed on a case-by-case basis. In general, attorneys may be allowed to breach attorney-client confidentiality in the following situations:

  • in case of a risk or threat to one’s life or honour;
  • for the lawyer’s own protection and defence against the client, but limited to such defence purposes; and
  • when previously authorised by a client (waiver), except to serve as a witness.

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?

Yes. Courts may disregard the protection where justice so requires. Article 243, paragraph 2 of the Brazilian Code of Criminal Procedure, for example, prohibits the seizure of documents from defendants’ attorneys, unless a document forms part of the corpus delicti. In the same way, Federal Law 8,906/94, which governs the Brazilian legal profession, provides the ‘inviolability’ of attorneys’ offices, tools and correspondence, but such protection may be breached. See questions 3 and 6.

Recognition of foreign protections

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

The law does not provide an answer to this question, and there are no precedents on similar situations, so this question must be decided on a case-by-case basis.

Considering that one of the instances when a party is not obliged to produce a certain document is when production may reveal facts protected by professional privilege, and also that it is a crime to reveal, without just cause, a secret that the person knows by virtue of his or her profession, we understand a party may allege that it cannot reveal a certain communication, otherwise it would breach a certain foreign attorney-client privilege rule.

Under Federal Law 8,906/94, which governs the Brazilian legal profession, foreign lawyers have the same rights, duties and protections granted to Brazilian lawyers in relation to privilege, provided that they hold a Brazilian bar licence authorising them to practise in Brazil.

Best practice to maintain protection

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

The following methods are recommended to protect the attorney-client privilege:

  • label sensitive documents as ‘confidential information’ and include language claiming privilege;
  • limit communications on sensitive legal issues, instructing the recipient not to forward to third parties;
  • ensure that the counsel is a member of the Brazilian bar; and
  • ensure that the communication with the counsel involves only legal issues, and not purely business or commercial issues.

Work product

Elements

Describe the elements necessary to confer protection over work product.

As mentioned in question 3, there is no specific work product doctrine in Brazil. Nevertheless, article 7(II) of Federal Law 8,906/94 sets forth that the lawyer has the right to the:

inviolability of its office or place of work, as well as its work instruments, and written, electronic, telephonic and telematics correspondence, as long as related to the legal profession.

There is no difference if the material was prepared in anticipation of litigation or in anticipation of trial, since the law determines that attorneys’ work instruments are covered by the inviolability.

Exclusions

Describe any settings in which the protections for work product are not recognised.

As there is no specific work product doctrine in Brazil, and considering that the attorneys’ work instruments are covered by the inviolability granted by article 7(II) of Federal Law 8,906/94, the same limitations of the attorney-client communications (see question 6) are applicable:

  • if the document is in furtherance of a crime, or to avoid a threat to one’s life or honour;
  • for the attorney’s own protection and defence against the client, but limited to such defence purposes; and
  • if previously authorised by a client to disclose (waiver), except to serve as a witness.

Who holds the protection

Who holds the protections for work product?

Assuming that the material was prepared by an attorney for a client, the attorney and the client hold the protections. The Code of Ethical Conduct of the Brazilian Bar Association provides that an attorney must preserve his or her liberty and independence.

Thus, it is possible that, in some circumstances, only the attorney invokes the protections.

Types of work product

Is greater protection given to certain types of work product?

There is no difference, considering that:

  • in Brazil, there is no specific work product doctrine; and
  • the attorneys’ work instruments are covered by the inviolability granted by article 7(II) of Federal Law 8,906/94.

In-house counsel work product

Is work product created by, or at the direction of, in-house counsel protected?

Yes, provided that the document was prepared by an attorney duly licensed or registered at the competent Brazilian bar. As mentioned in questions 2, 11 and 12, Brazilian law draws no specific distinction between in-house and outside counsel in relation to lawyers’ professional rights and duties.

Work product of agents

In what circumstances do materials created by others, at the direction of an attorney or at the direction of a client, fall within the scope of the protections for work product?

The protection of inviolability will prevail if the material is considered a work instrument of the attorney. In addition, the material may also be deemed confidential if it is part of a communication exchanged between the attorney and his or her client (see question 1).

Third parties overcoming the protection

Can a third party overcome the protections for work product? How?

In principle, no, because the attorney’s work is considered inviolable. However, if the lawyer is being criminally investigated, or where there is a paramount interest of justice, this inviolability may be breached by court order.

Who may waive work-product protection

Who may waive the protections for work product?

See question 14 - the same rules of attorney-client communication apply.

Actions constituting waiver

What actions constitute waiver of the protections for work product?

See question 15 - the same rules of attorney-client communication apply.

Client access to attorney files

May clients demand their attorney’s files relating to their representation? Does that waive the protections for work product?

The Code of Ethical Conduct sets forth that the attorney is obliged to return the original documents provided by the client when the representation ends and where there is withdrawal of the lawsuit (article 12 of the Code of Ethical Conduct). There is no obligation for the lawyer to present other documents, such as the lawyer’s own notes. Nevertheless, if the lawyer decides to present all of his or her files, the protections for work product will not be waived.

Accidental disclosure of work product

Does accidental disclosure of work-product protected materials waive the protection?

See question 16 - the same rules of attorney-client communication apply.

Exceptions

Describe your jurisdiction’s main exceptions to the protections for work product.

See question 18 - the same rules of attorney-client communication apply.

Litigation proceedings overriding the protections

Can the protections for work product be overcome by any criminal or civil proceedings where waiver has not otherwise occurred?

See question 19 - the same rules of attorney-client communication apply.

Recognition of foreign protection

In what circumstances are foreign protections for work product recognised in your jurisdiction?

See question 20 - the same rules of attorney-client communication apply.

Other issues

Who determines what is protected

Who determines whether attorney-client communications or work product are protected from disclosure?

As these issues normally arise in the context of litigation, administrative proceedings or investigations, it is up to the judge or to the person presiding over the administrative proceedings or investigations to determine whether attorney-client communications or work product should or should not be disclosed. The individuals and legal entities can appeal to the judiciary (in the case of administrative proceedings) or to higher courts (in the case of a matter handled by a judge) if the privilege is not observed.

Common interest

Can attorney-client communications or work product be shared among clients with a common interest who are represented by separate attorneys, without waiving the protections? How may the protections be preserved or waived?

No. In Brazil, professional secrecy is an obligation incumbent on the attorney, and the attorney has the duty of keeping confidential all facts learned during the exercise of the legal profession. Thus, if the attorney shares the privileged communication with a third client, it will happen in breach of his or her duty. On the other hand, if the client authorises the disclosure, it will be deemed to have waived confidentiality.

Limited waiver

Can attorney-client communications or work product be disclosed to government authorities without waiving the protections? How?

Lawyers cannot be compelled to breach the client-lawyer confidentiality duty without a judicial order. Brazilian courts can order the breach of the client-lawyer privilege in exceptional and very restricted circumstances based on reasonable grounds (ie, if the lawyer is being criminally investigated or where there is a paramount interest of justice - see questions 3, 14, 18 and 19). In any event, the disclosure of information obtained for professional use must be limited to the minimum extent necessary to permit the use in question.

Other privileges or protections

Are there other recognised privileges or protections in your jurisdiction that permit attorneys and clients to maintain the confidentiality of communications or work product?

No.