Definition
The Swedish Procedural Code governs legal professional right in the Swedish legal system.
Chapter 36 With regard to evidence, Section 5 of the Swedish Procedural Code specifies that advocates (i.e. members of the Swedish Bar Association) and their associates can be heard as witnesses on matters entrusted to them in their professional legal capacity or which they have learned in connection with them only if there is a duty under Swedish law to do so.
The primary exception to this is where there is a minimum term of two years in jail for the criminal crime for which the defendant is being charged.
With regard to documentation, there is a general duty in Chapter 38 Section 2 to include any documentation which may be evidence-based. However, advocates and their associates or trial attorneys who are not advocates may not reveal records (electronic or physical) if it can be concluded that their substance is such that, pursuant to Chapter 36 Section 5 above, advocates and their associates may not be called to testify about it. If the document is kept in the hands of the defendant to which the confidentiality advantage refers, the defendant is not required to give the document to the defendant.
Therefore, legal professional privilege does also occur in the field of civil litigation as well. This covers contacts (even though they are not supporters) with advocates and trial attorneys, but not with non-advocate lawyers, such as in-house counsel. Therefore, non-advocate lawyers could both be compelled to testify on certain matters and/or reveal such documents that, if revealed to a lawyer, would otherwise have been covered. However, as mentioned above, the legal right of advocates is not absolute and exceptions to this can be given in the Acts.
Legal professional privilege in competition law proceedings
With regard to investigations pursuant to the Swedish Competition Act, the Swedish Competition Act specifies, in Chapter 5, Section 11, that the Competition Authority is not allowed to order, in accordance with Chapter 36, Section 5 of the Swedish Procedural Code, a corporation or other entity/person or its advocate(s) to provide written information or documentation that is protected by legal professional privilege The Competition Authority does not inspect or take copies of information protected by legal professional privilege under Chapter 36, Section 5 of the Swedish Procedural Code with respect to on-site legal investigations, i.e. ‘dawn raids’. Although this may not be a problem in practice, it should be noted that the clause in Section 11 of Chapter 5 clearly covers only written documents. Consequently, it is not clear how it can relate to electronically processed content that can only be read, listened to or otherwise interpreted by technological aids, such as e-mails that have not been printed.
If the Competition Authority decides that an investigation should cover a specific document and the investigated party argues that the document is covered in compliance with a legitimate professional right, the Competition Authority shall immediately seal the document and promptly refer it to the Patent and Business Court. The Patent and Business Court shall investigate without delay whether or not the document is covered by the inquiry or secured by the legal professional right and, accordingly, removed.
With regard to testimony, the legal professional right provided for in Section 5 of Chapter 36 of the Swedish Procedural Code for Testimony also applies with regard to the Swedish Competition Authority’s investigations. The legal professional privilege granted therein, as stated above, is not absolute and derogations may be provided in Actions. Such derogations are, however, not provided for in the Swedish Competition Act.
While not expressly specified, the same principles as mentioned above apply if the Competition Authority orders a party to provide written information in the sense of the merger control procedure.
Legal professional privilege scope
In Sweden, the spectrum of legal privilege is the same, irrespective of whether the context is civil action, criminal prosecutions or investigations into competition law.
What does legal professional immunity protect?
The Swedish legal professional privilege covers any document or information in any format that has been entrusted to a lawyer in his professional capacity.
Are legal professional privilege-protected interactions with in-house counsel?
In Sweden, in-house lawyers are not members of the Swedish Bar Association and are, thus, not supporters. As a result, dealings with in-house attorneys are not covered.
Is the correspondence of non-nationally trained lawyers entitled to legal professional privilege?
The Swedish legal professional privilege also covers contacts with foreign lawyers who are the equivalent of advocates. Swedish legal professional privilege, as mentioned above, can be waived either because of the consent of the client or if the Swedish Acts provide for derogations from the legal professional privilege.
Latest cases and/or other changes in the law
In a case following the Swedish Competition Authority’s dawn attack on Swedish postal firms, Swedish legal professional privilege was most recently addressed (decision number Ä 6673-11 of 22 June 2011). The Court claimed in the Stockholm District Court’s decision that Swedish legal professional privilege should be interpreted in accordance with EU law. The Court held that, in the judgment of the European Court of Justice in the AM & S Europe case (case 155/79), a minimum, but not a maximum, degree of privilege was provided for.
However, the Court held that, to the degree that Swedish legal professional privilege covers almost any document entrusted to a lawyer in his professional legal capacity, Swedish legal professional privilege has met more than the minimum EU level. Furthermore, with reference to the Swedish Supreme Court decisions NJA 1990 s 537 and NJA 2010 s 122, the Court held that it was only ‘to a modest degree’ appropriate to demonstrate that the text was protected by legal professional privilege in order for the protection given not to be hollowed out. In that case, a document of concern to the authority was prepared by the in-house counsel, who was not an advocate. However, the in-house lawyer must have an email stating that the memorandum was assigned to the external counsel of the organization, an advocate, and the Court therefore found the document to be protected by legal professional privilege.