Definition
Under Polish law, the definition of legal professional privilege does not exist. Nevertheless, lawyers are required by a duty to keep confidential all
In the process of delivering legal services, details that they became aware of. Lawyers are bound by the professional confidentiality of lawyers in compliance with Polish law, which ensures that they must keep secret all the details related to their provision of legal services.
Generally, in all forms of litigation, including civil, criminal and competition law, there is professional confidentiality. In certain cases, however, the confidentiality requirement can be suspended in criminal and antitrust proceedings, specifically provided for by statute.
Legal professional privilege scope
Under Polish criminal law, the scope of the client’s legal professional privilege defense is narrower than the definition under EU law. The professional confidentiality of attorneys concerns documents and records in the hands of the lawyer only. As a consequence, only when they are held by a prosecutor, not by clients, are records related to a case covered. Therefore, even though they contain relevant details relating to the provision of legal services in relation to criminal investigations, they are not shielded from the disclosure of records in the hands of the client.
With respect to antitrust cases, Polish competition law applies, in the case of dawn raids, to the principle of legal professional privilege. The defense also extends to the records in the client’s possession.
Are legal professional privilege-protected interactions with in-house counsel?
There is no special rule on in-house lawyers’ confidentiality. The above statements are only applicable to in-house lawyers, given that in-house lawyers are competent attorneys (if the in-house lawyer is not a qualified lawyer, ie they are not admitted to the Bar, the professional secrecy rule does not apply to them).
Is the correspondence of non-nationally trained lawyers entitled to legal professional privilege?
The above rules shall, as a general rule, apply to non-national qualified lawyers (who have obtained a professional title in an EU Member State or a third country and are admitted to the Bar) in the case of offering services within the territory of Poland. The scope and limitations of the legal services rendered by qualified foreign lawyers in the territory of Poland are defined by Polish law. However, international accredited lawyers, including the professional confidentiality rule, may be subject to general rules applicable to lawyers.
When the right is waived?
The Polish Code of Criminal Procedure covers the most significant protection from professional confidentiality. Under its rule, a judge, after a prosecutor’s motion, will lift the confidentiality duty and allow a lawyer to be investigated as a witness. For the sake of justice and in the absence of any other proper proof, it may happen. In Polish legal culture, this regulation is widely criticized and is used in very few instances. In addition, an attorney is required to report data related to money laundering or terrorist acts controlled by a separate law.
Legal professional privilege in the sense of merger regulation
In the sense of merger regulation, legal professional privilege is not well defined and there is a lack of related jurisprudence concerning merger proceedings. It is nevertheless accepted as a constitutional right on the basis of Article 6 of the European Convention on Human Rights.
It may be worth referring, however, to dawn raid events. The Polish Competition Court ruled in a recent judgment involving the confiscation of binary copies of entire hard drives that this would not in itself be unconstitutional, but the subsequent analysis of electronic data without the participation of members of the undertaking may be regarded as an infringement. Appropriate security of legal professional privilege requires that the relevant documentation which could potentially contain such knowledge be chosen.
Latest cases and/or other changes in the law
Proof that is unlawfully collected by the police will be used in court trials on the basis of the most recent addition to the Polish Criminal Procedure. It is probable that this reform will have a detrimental effect on the defense of legal professional privilege. The very recent reform to the Polish tax law relating to the Mandatory Disclosure Laws came into effect on 1 January 2019. The Act transposes Directive 2018/822 of 25 May 2018 of the Council of the European Union (EU) and makes it compulsory for so-called promoters (i.e. tax advisors, advocates and attorneys-at-law) to send information on tax schemes to the Head of the National Revenue Administration. The disclosure requirement not only extends to cross-border arrangements, but also to some domestic arrangements in Poland. In specific cases, the lawyer or attorney-at-law may be the person who notifies the authorities of the tax scheme (after the consultation with the client). As a consequence, in such cases, the professional right is waived.