Definition
The main condition in Portugal for the free exercise of the legal profession is the willingness of a client to reveal details.
The lawyer was responsible for the mandate given to the latter and also for the lawyer to obtain the information on the basis of trust. Therefore, legal professional privilege is recognized as a constitutional right and obligation of the lawyer, both protected in the constitution of the law.
Republic of Portugal and in the Secondary Legislation (civil and penal legal frameworks). In the statutes of the Portuguese Bar Association (‘EOA’), the definition of legal professional privilege and its particularities are clearly provided for. According to the EOA, lawyers are not permitted to reveal any documents, data or relevant details acquired as a result of their professional status, and legal professional protection applies directly or indirectly to any record or data relating to facts disclosed to the lawyer in trust. The duty to uphold professional privilege is not limited in time and persists irrespective of whether the act sought by the lawyer requires judicial or extra-judicial representation, is charged or free of charge, and even if the service has not been approved by the lawyer.
This duty extends to any lawyer who has had any intervention in the matter, directly or indirectly. This responsibility is applicable to the lawyer and support staff of the firm in the case of a law firm and, in fact, anyone who supports the lawyer will be expected to uphold the same professional privilege. It is not possible to use any actions committed by a lawyer in violation of legal professional privilege as evidence in court. In addition, violation of the rules of legal professional privilege will give rise to a disciplinary action, as well as civil and/or criminal liability.
Legal professional privilege in the sense of civil litigation
In civil litigation, legal professional immunity is fully applicable. This means that, under the Civil Procedure Code, a lawyer should not reveal, as a witness, any evidence that they might have had knowledge of during their professional practice.
Legal professional privilege in the sense of judicial inquiries
As noted above, a lawyer can refuse to testify under the Code of Criminal Procedure about facts protected by legal professional privilege. Under the Criminal Procedure Code and the EOA, any act practiced in violation of professional privilege cannot be used as evidence in court.
As far as raids, searches and seizures are concerned, those carried out in a law firm or some other place of archives, as well as the surveillance and recording of conversations or correspondence (telephone or e-mail recorded in the Bar Association) by an attorney in the practice of a legal profession, can be ordered and presided over only by an EOA judge. The lawyer concerned, the president of the Regional Council, the president of the delegation or a member of the Bar Association should be present during the hearings, as the case may be.
In the course of a raid, a lawyer can lodge a lawsuit for violation of legal professional privilege, in which case, according to the EOA, the judge must stop the investigation of the documents, seal them and wait for the President of the Court of Appeals to determine whether to access those documents. Notwithstanding the above, no correspondence relating to the practice of a legal profession can be confiscated, except when such correspondence relates to a criminal offence relating to which, according to the Criminal Procedure Code and the EOA, the lawyer has been formally charged.
Legal professional privilege in the sense of antitrust / competition authority inquiries
In this form of investigation that involves a misdemeanor, the considerations relating to criminal investigations as set out above are also fully applicable. The fact that the Competition Act sets down clear rules relating to the powers of inspection and seizure of the Competition Authority shall not influence the application of the principles of law and of the legal provisions relating to criminal investigations. In fact, this articulation of legal provisions is not always straightforward and in practice, in particular with respect to surprise inspections and seizures, there are many issues in which the actions of the Competition Authority are challenged by undertakings as failing to comply with defense rights and constitutional limits.
In 2012 the Competition Authority released guidelines for inquiries and the same specifically accept ‘lawyers’ legal privilege rules’:
Seizures and other raids carried out in lawyers’ offices shall always be presided over by a judge, a lawyer and a representative of the Portuguese Bar Association, and that, in the event of doubt as to whether the document is entitled to legal privilege, the Competition Authority shall seize it, identify it and place it in a sealed envelope for further examination by the competent court.
Legal professional privilege scope
A wide range of knowledge and records are protected by legal professional privilege. Any fact and/or supporting document (in any format) disclosed by a client, its associates, codefendants, counterparties and others to a lawyer shall be confidential, unless their disclosure is expressly allowed (as further explained below).
Legal professional privilege does not protect in following cases:
– Known to the public
– Earlier proved in court
– A crime in which the solicitor is accused of having played an active part
– Mentioned in documents/deeds of the public, and
– Disclosed in favor of the client with the approval of the Bar Association
Are legal professional privilege-protected interactions with in-house counsel?
In-house counsel shall have the same rights, both on the basis of the provisions of the EOA and of the approach adopted by the General Council of the Bar Association, and shall be bound by the same obligations as independent lawyers, especially with regard to legal professional privilege.
It is also important to draw attention to Opinion No. E-07/07 of the same Bar Association, where it was concluded that the search and seizure of records in the office and on the machine of an in-house lawyer by the Competition Authority could not only be treated as void, but may also constitute a criminal act. In this context, it is also important to refer to the 2008 jurisprudence as regards the rights provided to in-house lawyers in terms of legal privilege vis-a-vis the Competition Authority and the unique characteristics of the physical places where in-house lawyers have their offices, as well as the special obligation to safeguard records.
In summary, Portuguese laws provide in-house lawyers with more vigorous defense in competition cases, which should be taken into account at EU level and with due regard to the relevant law in each situation.
Is the correspondence of non-nationally trained lawyers entitled to legal professional privilege?
The Bar Association requires such international licensed attorneys, whether on a permanent or intermittent basis, to register and to practice in Portugal.
The Code of Ethics for lawyers in the European Union specifies, in addition to the relevant EU legal structure, that when acting in other countries, a lawyer is required to comply with the rules of the Bar or Law Society of the host Member State, meaning that non-national lawyers acting in Portugal are required to comply with the Portuguese Bar Statutes and, in general, with the Portuguese Bar Statutes.
In these cases, however, they are subject to the same laws and codes of ethics as Portuguese lawyers, in particular to the rules of professional legal privilege.
The Commercial Court of Lisbon agreed in 2008 that non-national lawyers can take advantage of the professional privilege rules only if they are registered with the Portuguese Bar Association. Notwithstanding that, in its 2012 Guidelines for Investigation, the Portuguese Competition Authority takes a wider view, as it seems to interpret that non-national lawyers can benefit if they are registered in other EU countries with the Portuguese Bar or some other similar body.
When the right is waived?
Only if this is absolutely appropriate for the defence of the reputation, rights and legitimate interests of the lawyer or his clients or representatives, will a lawyer be allowed to disclose information protected by professional privilege. This waiver of legal professional privilege relies on the Bar Association’s prior authorisations and the lawyer can nevertheless continue to keep confidentiality even after receiving it.
By order of the court under the Criminal Procedure Code, professional legal privilege can also be waived. While the Bar is heard before the waiver decision of the court on professional privilege, it is highly debated whether or not its judgment is binding on the court.
Consequently, it is also controversial whether an act of disobedience under the Criminal Code is committed by a lawyer who refuses a court order to waive professional privilege.
A particular case is one where the lawyer has the obligation to waive professional privilege. Recently, the Money Laundering Directive was enforced by Law 83/2017, 18 August, which lays down certain duties for lawyers when welcoming new clients (‘Know Your Client’ policies), including demanding full information of the identity of the client, ultimate ownership in the case of legal persons, and value/money origins.
Whenever a lawyer has strong concerns about their client’s origin or credibility and the values/moneys involved, the lawyer has a duty to report it to the Bar Association, which, in turn, has the duty to report it to the Public Prosecutor if the matter is considered potentially unlawful. Despite the above, Portuguese lawyers have restricted this reporting requirement to non-confidential information related to confidentiality.