Definition
There is legal professional privilege in both civil cases and criminal proceedings and in conjunction with Norwegian investigations. The Competition Authority and the Authority for EFTA Surveillance (ESA).
Professional attorneys and junior lawyers, as well as other people who support the lawyer in their practice, are entitled to legal professional privilege.
For legal records which are in the possession of a third party, legal professional privilege does not apply.
Legal professional privilege supersedes the obligation of disclosure of the lawyer, including their duty to testify, unless a legislative clause prescribes otherwise. Furthermore, documents covered by lawyer / client legal protection cannot be seized by the Norwegian authorities.
Legal professional privilege scope
The knowledge must be conveyed to the lawyer in their capacity as a lawyer, i.e. in connection with receiving legal advice, in order to be considered privileged. The legal professional right of the lawyer / client does not extend to information that a lawyer receives while working in another role, such as as a member of the Board of Directors of a corporation.
As such, for all forms and contents of documents, legal professional privilege applies, given they meet the above requirements. In criminal investigations, however, legal professional immunity should not be invoked if it leads to a conviction of an innocent person or the execution of a serious crime.
Are legal professional privilege-protected interactions with in-house counsel?
Under Norwegian national legislation, as mentioned above, interactions with in-house counsel are protected by legal professional privilege.
However, information provided to in-house attorneys is not covered by legal professional privilege pursuant to EEA/EU law. As a consequence, for example, if the ESA (which falls within the scope of EEA/EU law) performs a dawn raid, any in-house lawyer at the organization in question does not claim legal professional privilege. However, while in-house counsel may not be able to say that their communications in the context of the ESA investigations are shielded by legal professional privilege, they may attempt to do so in the context of the Norwegian Competition Authority’s investigation.
Is the correspondence of non-nationally trained lawyers entitled to legal professional privilege?
No matter the nationality of the lawyer, legal professional privilege applies. In a case where a US-in-house corporation’s counsel had prepared such strategy papers in connection with a dispute, it was held that parts containing legal concerns and litigation risk assessments were to be treated as confidential material, cf. Decision of the Supreme Court’s Appeals Selection Committee, 22 December 2000
When the right is waived?
The party receiving the advice and / or having submitted the privileged information may waive legal professional privilege. A waiver of this type should be rendered in writing.
The prosecutor is free to reveal privileged information if a lawyer is sued by a client for alleged malpractice, to the degree that this disclosure is appropriate for their protection. However, even in such situations, it is not possible to reveal information obtained under a strict confidentiality agreement.
Legal professional privilege in the sense of merger regulation
There is currently no clear case law relating to the application of legal professional privilege in the sense of merger control in Norway, but it will nevertheless be applicable to the general concept of legal privilege, as explained above.
Latest cases and/or other changes in the law
Historically, there has been a dispute on the right of lawyer / client knowledge between the National Authority for Investigation and Prosecution of Economic and Environmental Crime (‘ Økokrim’) and the Norwegian Bar Association. Økokrim argued that legal professional privilege is an obstacle to its work against white collar crime and demanded new legislation to curb legal professional privilege. On its part, the Norwegian Bar Association has been explicit about the importance of confidence and confidentiality in the relationship between lawyers and clients and that legal privilege between lawyers and clients is a fundamental part of this.
This discussion resulted in a task force’s mandate to recommend policy reforms in general in relation to legal professional privilege. No amendments have been made so far, although it was suggested to expand the scope of privilege by statute stating that the concept protects all details relevant to the appointment of a lawyer, including the advice of the lawyer.
In 2012, the Supreme Court ruled that even though an attorney is subject to bankruptcy proceedings, information on client names and money transactions between lawyers and clients will be subject to legal professional privilege and, unless otherwise provided by a specific legislative requirement, will supersede any disclosure obligation. The Supreme Court has presumed that the lawyer will recover unpaid fees without prejudice to the obligation of confidentiality, even though such action results in exposure of the customer relationship.
In 2018 the Supreme Court also denied Økokrim’s appeal for access to a lawyer’s time sheets. In addition, the Supreme Court explained the requirement to produce legally protected information (in this case, the annual accounts of a lawyer) as evidence in a complaint in a redacted form.