Definition
There are no express statutory rules regulating the principle of legal professional privilege in Chile, but it is possible to find the related rules in Chile.
The procedures of various legal bodies and the Code of Professional Ethics of the Chilean Bar Association (‘PEC’). The definition is based on the right of protection (adequate representation) of a client and the utter trust between clients and their lawyers that must exist.
While lawyers can be called to testify as a witness, in order not to testify before the courts about sensitive information obtained from a client, they are entitled to claim legal attorney-client privilege. The Code of Criminal Procedure and the Code of Civil Procedure accept this right.
Confidentiality Obligation
Under the PEC, sensitive details obtained from clients should not be revealed by lawyers. Although it is not mandatory for any lawyer, member or non-member to become a member of the Chilean Bar Association to practice in Chile, all attorneys, members and non-members must comply with the provisions of the PEC and this obligation is enforceable by the courts of Chile.
Legal professional privilege scope
The Code of Criminal Procedure (Article 303) and the Code of Civil Procedure (Article 360 No 1) contain similar clauses specifying that, as part of their legal work for a certain client, lawyers are barred from testifying in some sort of court case against the interests of clients or in conjunction with information obtained from clients.
As regards the responsibility of confidentiality, the PEC describes confidential information as “all information relating to the matters of any client that the lawyer has been notified of in relation to his or her profession” (Article 7).
Confidentiality imposes upon a lawyer the following obligations:
Prohibition on Transparency. No confidential information or records containing confidential information must be revealed by attorneys.
Care Obligation. Lawyers must apply all steps possible to protect the sensitive information of a client.
Responsibility for representatives of teams. The lawyer must take the appropriate steps to ensure that colleagues and other members of the team comply with the relevant confidential information obligations of the client and do not reveal any such information.
In addition, under the PEC, the obligation of confidentiality has a similar relation to “legal attorney-client privilege” and entitles a lawyer to refuse to testify in connection with the classified or confidential knowledge of a client before the courts.
This responsibility also protects documentation or any other computer on which confidential information is stored and also covers information generated by the lawyer on the basis of confidential information obtained, irrespective of whether it is kept by the lawyer or the client.
In fact, the Criminal Procedure Code specifies that “the seizure of communications between the accused and persons who, under the provisions of Article 303, may refrain from testifying as witnesses cannot be ordered” (Article 220).
Also after the termination of an instruction or matter, the obligation of confidentiality continues to apply. Confidentiality, however, is not an absolute right and it is possible for a lawyer to bypass it if:
Confidential data relates to a deceased individual and its disclosure can prevent the passing of a criminal judgment on an innocent suspect.
There are fair reasons for suspecting the use of legal resources to accomplish a criminal purpose (of which the lawyer was unaware).
Are in-house lawyers shielded by professional legal privilege?
In-house attorneys shall be subject to the same duty of care and confidentiality requirement applied to lawyers in private practice, whether they are lawyers. Lawyers are entitled to these duties because of their occupation, not because of the essence of the retainer or customer relationship and, as a consequence, this right protects any customer or prospective customer.
According to the PEC, a client is defined as a person or legal entity that has formed a professional relationship with a lawyer to provide professional services, such as legal advice, advocacy, and/or acting on behalf of the interests of an individual or legal entity. In cases where the recipient of professional services is a third party, the person or legal entity paying for the professional services is not usually the client.
Where a legal entity has named a lawyer, the entity itself and its directors, general managers, representatives, staff, shareholders or other bodies or members shall not be treated as a client.
Non-lawyers are not entitled to client-attorney privilege of any kind.
Is the correspondence of non-nationally trained lawyers entitled to legal professional privilege?
Yes. Chilean law does not discriminate between the treatment of qualified lawyers’ advice or communications depending on the jurisdiction in which they are qualified. The criteria set out above will be applied in the same way in regards to legal professional privilege.
When the right is waived?
Privilege can be waived only by the consumer giving the lawyer clear or implicit permission to reveal the document or details in question. It is therefore important to view this consent restrictively so that it is limited to the details that the consumer has waived. In a general or non-specific way, legal professional privilege should not be waived by the client.
A lawyer will never waive legal professional privilege.
Classified and privileged details under Chilean competition law
The unified text of Decree Law No. 211 (‘DL 211’) provides the legal structure applicable in Chile for the control of competition. It includes provisions concerning the handling by the Fiscalía Nacional Económica (National Economic Prosecutor or ‘FNE’) of privileged and confidential information in investigations and procedures carried out. DL 211 does not specify the extent of legal professional privilege, but the general rules applied by the Code of Professional Ethics of the Chilean Bar Association (‘PEC’) apply to inquiries and procedures in the field of competition.
It is helpful to study the degree to which the FNE may request information in order to clarify the nature of legal professional privilege.
In accordance with Article 39(h) of DL 211, it is the responsibility (and the corresponding power) of the FNE to request the information required for the purposes of the investigation of the undertaking. It is necessary to appeal to the Tribunal for the Defence of Competition in compliance with the same article.
The parties are expected to provide the FNE with confidential commercial details in the sense of the merger control process, such as: revenue, financial statements, key suppliers, customer profiles. If the party under investigation does not provide the information required, it may be subject to the penalties referred to in Article 39(h) of DL 211, which include fines or imprisonment. In addition, a penalty fee of up to two annual tax units for each day of delay can be levied on those who are required to respond to requests for information made by the FNE and do not do so, or do so partially.
In summary, when carrying out an investigation, the FNE has the right to request information from stakeholders, which includes any investigation that is conducted during a merger control procedure. The Contracting Parties are obliged to provide such information and may be punishable if they do not do so, unless they make a formal request to withhold disclosure on the ground that the sharing of such information may damage their interests or those of third parties.
Treatment of privileged and confidential information of the FNE
The confidentiality of the inquiry file opened during the merger control process is regulated by Article 55 of DL 211. This states that, with the exception of those sections of the file to which Article 39 (summarized above) refers, the file becomes public when Step I ends. In such cases, except such facts, the parties can provide public versions (redacted versions).
Conclusions
Confidentiality and/or privilege with regard to information and/or records shall be decided by the FNE on a case-by-case basis, at the request of the concerned party or ex officio.
In general terms, in order to determine whether it is confidential and/or privileged, the FNE determines whether the information in question has the potential to influence the competitive growth of the markets. In order to avoid serving as an intelligence facilitator to rivals, the FNE has thoroughly interpreted this criteria during investigations.
The confidentiality duty applies to attorneys, staff and any other individual who provides services to the FNE.
A group wishing to maintain secrecy has the responsibility of supplying public (redacted) copies of the public file.
It is only possible to redact information if it is sensitive and/or privileged.