Definition
In general, Russian law fails to accept the principle of legal professional privilege. The notion of legal professional privilege, however in some cases, it is also articulated. The most comparable principle is the secrecy of advocates. A hidden advocate is any information relevant to an advocate supplying his client with legal services. Such specifics can include:
– the fact that a customer approaches an advocate
– the data collected from their client by an advocate
– the facts and records obtained by a prosecutor when preparing for a lawsuit
– content of legal advice provided to the consumer, etc.
A confidential lawyer is covered by statute and a special arrangement does not need to be concluded (ie a confidential agreement).
It is not possible to request information considered as a confidential advocate to be given to any state agency (either in the context of civil or criminal litigation or upon the request of the antimonopoly authority). As a witness, advocates should not be questioned about situations that have become clear to them when supplying their clients with legal services.
Not every lawyer is considered an advocate under Russian law. A applicant must meet the special standards set out in federal law and pass a special exam in order to obtain the rank of a lawyer.
If a lawyer does not have the status of a lawyer, a regime of commercial confidentiality will shield the information they obtain from their clients. The definition of legal professional privilege varies from this regime.
A particular regime for shielding sensitive information is commercial confidentiality. Commercial confidentiality covers information of any kind (production, technological, economic, organizational, etc., including the results of scientific and technical intellectual activity, as well as information on the methods of carrying out a professional activity) which, since it is unknown to third parties, has real or potential commercial value. Where the holder of commercially secret information has taken the collection of steps referred to in federal law to protect the confidentiality of the information, a commercial secrecy regime shall be deemed to have been created.
Until formally requested by an authorized state agency, a trade secret cannot be revealed to third parties (investigating agencies, agencies in charge of a pretrial inquests, judicial authorities and antimonopoly bodies). Certain forms of data explicitly prohibited by legislation cannot be subject to a commercial secrecy system (for example, constituent documents, documents confirming entries in the relevant state registers, etc). This means that, during inspections undertaken by any competition regulator, the commercial confidentiality regime does not include protection from record demands or seizures (including dawn raids).
Russian competition law states that trade confidentiality cannot be established in relation to information supplied to the regulatory authority on its own initiative by a party to a competition investigation. This means that contractual confidentiality can be extended only to information submitted in response to a request from the competition authority or collected during an inspection by the competition authority.
No trade secret gained in the process of exercising its powers should be revealed to the competition authority, except in special circumstances allowed by statute (eg upon the request of a court, investigation agency, etc). Accordingly, the trade confidentiality regime does not generally shield information or records from being revealed to the competition authority, but helps to protect it from further disclosure to third parties by the competition authority (including other parties to the antimonopoly case).
Whether a trade secret has been wrongfully revealed. Civil, administrative and/or criminal responsibility can be placed on the professional personnel of a competition authority. Harm caused by the exposure of a trade secret could be compensated by the government.
Legal privilege scope
In contrast to the above, contact between advocates is covered by laws on confidentiality of advocates. In the case of lawyers, special investigation operations can only be carried out under special rulings. Advocate confidentiality does not protect situations where products used for committing a crime or goods banned or restricted in Russia have been discovered by an investigation.
Advocate confidentiality does not extend to messages from lawyers to lawyers (to the extent the lawyers are not advocates). Correspondence between legal practitioners may be covered as a commercial secret by means of a confidentiality agreement. However, this information must be given at the request of an approved state agency. In two ways, a commercial secret can be protected:
Knowledge received from a client can be covered by a confidentiality arrangement between the client and the lawyer from being revealed to third parties, and if a lawyer is an employee (including employees in law firms), they must preserve the confidentiality of the commercially secret information they collected during the performance of their job (including information received from clients)
Are communications secured by legal professional privilege with in-house counsel?
Inhouse counsel may not reveal to third parties (with the exception of approved state bodies) the trade secrets they have gained through the performance of their work. Regulated state bodies shall have the power to seize documents or to interrogate an in-house lawyer as part of a special inspection of the company or as part of criminal proceedings against the head of the company or other employees, as well as in other special cases.
The confidentiality of letters, telephone calls, etc. is a general human and civil privilege (Article 23 of the Russian Constitution). This right may be restricted where information is officially requested by approved state bodies. This only applies to private correspondence, however, and not to official / business correspondence.
Is the correspondence of non-nationally trained lawyers entitled to legal professional privilege?
Under Russian law, in the territory of the Russian Federation, foreign qualified lawyers may advise on matters relating to such foreign law. It is illegal for foreign advocates to provide legal aid within the territories of the Russian Federation on matters relating to the Russian Federation’s state secrets. Only Russian trained lawyers are shielded by the confidentiality of advocates.
If, under an employment agreement regulated by the Russian Labour Code, a skilled foreign lawyer is an employee, the lawyer must comply with Russian rules relating to commercial confidentiality.
When the right is waived?
The confidentiality of the advocate is infinite in time and can only be waived by the client. There are some exceptions mentioned in the law to this provision.
Legal privilege in the sense of merger regulation
In the sense of merger control procedures, the standards of legal professional privilege set out above are equally applicable. The competition authority cannot request disclosure of knowledge perceived to be a confidential advocate. Where any information to be submitted to the competition authority constitutes a trade secret, it should be labelled as such and, in this case, the competition authority shall ensure that it is handled confidentially, held in a separate file and not revealed to third parties.