Austrian law does not provide for the defense of legal professional rights to the degree that it is defined in many other jurisdictions.
Legal professional privilege in civil litigation
In the sense of civil litigation, where the court may order documents to be produced during proceedings, such as discovery, each party is required to produce and send the documents referred to as evidence in support of its claims. In addition, the Austrian Code of Civil Procedure provides for a disclosure requirement on the part of the opposing party if:
– The opposition party itself referred to the text for proof purposes;
– An opposing party is subject to a disclosure requirement under Austrian civil law;
– The paper is a collaborative document (meaning that the document was either drawn up in the interest of the opposing parties or refers to legal relationships between the parties).
Other records are subject only to conditional disclosure and the opposing party can refuse to reveal them for a variety of important reasons. It is difficult for a party to rely on legal professional privilege to escape the need to reveal a record. The duty of the opposing party to publish documents is not enforceable, but the court may give weight to the failure to do so.
As far as third parties (including lawyers keeping documents on their own behalf) are concerned, there may be a duty to reveal documents: under Austrian civil law; or which are shared documents between third parties (e.g. lawyers) and the party making the evidence.
However, this provision only applies if the third-party acts on its own behalf. If the lawyer holds the statement on behalf of and on behalf of the attorney, the client is subject to a disclosure requirement. The duty to report to third parties is a non-conditional obligation and cannot, in practice, be prevented by claiming legitimate professional rights. It is punishable by fines and jail terms.
Under the Austrian Code of Civil Procedure, a lawyer has the right to refuse to provide evidence in court as to the facts relating to advice provided to a client. The Lawyer Legislation allows lawyers to preserve confidentiality in the interests of clients with regard to matters entrusted to them and to the information they have received in their capacity as lawyers, and in so far as non-disclosure is in the interests of the client.
Legal professional privilege in the sense of criminal investigation
Legal professional privilege is acknowledged in the sense of criminal investigations. The Austrian Code of Criminal Procedure provides for the right of a prosecutor to refuse to offer testimony on matters entrusted to him in his capacity as a defense lawyer. The right to deny testimony cannot be circumvented in any way, in particular by questioning the staff of the prosecutor or by seizing records stored in their office.
Legal professional privilege in the sense of inquiries undertaken by the antitrust/competition authority
In the case of proceedings by the competition regulator, a narrower scope of legal professional privilege is acknowledged. The relevant administrative procedural law acknowledges the right of a lawyer to refuse to give proof in respect of matters entrusted to him in his capacity as a lawyer. In the sense of European Union competition law, although not under the legislative rules of Austrian competition law, there is more comprehensive legal defense of professional rights. Therefore, where the Austrian Competition Authority operates on its own behalf, there is no assurance that any ‘privileged’ communications will be secured. Generally speaking, the Austrian Competition Authority does not grant legal professional rights in the course of an inquiry based on Article 101(1) TFEU. This is particularly true if any suspicion (e.g. drawing up a cartel agreement) is directed towards a lawyer or a chartered accountant.
Scope of Legal Professional Privilege
In the context of civil lawsuits and inquiries by the antitrust regulator, a lawyer can not offer evidence relating to advice provided to a client on the basis of their confidentiality obligations under the Attorney’s Regulation. The Lawyer Legislation also forbids any effort to breach the obligation of confidentiality.
In the form of criminal investigations, the legal professional privilege stems from the prohibition of efforts to undermine the right of a lawyer to refuse to offer evidence on questions of legal professional privilege. It applies to communications between a client and his or her counsel and is not limited to communications between a lawyer and his or her client after a criminal investigation has been launched. Legal professional privilege security starts when the client consults the counsel on the conduct of the case, even though the police have no facts against the client at that point. Legal professional privilege shall remain in effect even after the termination or end of a lawyer-client partnership. It is not limited to the lawyer, but also applies to the staff of the lawyer.
Examples of protected communications include minutes of meetings and notes on interactions between the client and the lawyer, compliance reports, policy articles, copies of contracts for information and expert advice to the lawyer, as well as notes and memos on the case. Documents recording the outcome of the client enquiries made by the lawyer are also covered.
Proof of illegal activity is not covered by legal professional privilege and thus cannot be made ‘immune’ from disclosure by being filed with a lawyer. This ensures that exhibits of proof (e.g. initial contracts) are never subject to legal professional rights, irrespective of the time at which they are made. Another major drawback of legal professional privilege is that it extends only to records in the immediate possession of the lawyer (i.e. held in the premises of the lawyer), although correspondence between the client and his lawyer contained in the possession of the client are not secured.
Is correspondence with in-house counsel secured by Legal Professional Privilege?
Legal professional privilege shall not extend to in-house counsel, since in-house counsel cannot or may not remain licensed with the Austrian Bar. In order to be able to register or stay registered with the Austrian Bar, lawyers must be autonomous and not under the control of the client. These criteria are not fulfilled by in-house counsel who are usually incorporated into the client’s organization. In-house lawyers typically have a range of roles that extend beyond the services generally rendered by a lawyer, often including management functions.
There are no specific legal protections to secure correspondence between in-house counsel and officers, directors or employees of a corporation. However, Austrian labor law provides for a general obligation of allegiance owed by workers to the employer. This ensures that all staff of a corporation (including in-house counsel) are obligated to defend the corporate interests of the employer. It requires the duty not to reveal relevant business details to third parties. Under Art 15 DSG, the Austrian Data Protection Act, data which have been made available during and on the basis of one’s jobs, must be regarded as confidential subject to any legal criteria for its disclosure. Relations between the in-house attorney, on the one side, and the officers, directors or employees of the company, on the other, are subject to this general requirement of confidentiality whether it is in the interests of the employer. However, these confidentiality obligations do not extend if the employee is called as a witness in criminal, administrative or civil proceedings. In addition, this duty of confidentiality usually only lasts for the length of the employment contract in question. At a later point, the employee is committed to secrecy only if a clear confidentiality agreement has been reached.
Will the Legal Professional Privilege of non-national trained lawyers extend to correspondence?
Legal professional privilege extends primarily only to lawyers registered with the Austrian Bar and European lawyers (lawyers from other EU and EEA Member States). There is also no assurance that interactions between a client and other international eligible lawyers are secure.
How Legal Professional Privilege is waived?
Although the client is entitled to free his lawyer from the duty to preserve confidentiality, this does not mean that the lawyer is therefore entitled to do so.
It immediately loses the right to refuse to give evidence in a criminal investigation against the client, because the right to refuse to give evidence is of a personal nature and must be exercised in compliance with the ethical code of conduct (Austrian Attorney Regulation).
In cases of money laundering, an exception to the legal professional right exists. If there is a suspicion that there is a customer
As far as money laundering is concerned, their lawyer is obligated to report those activities to the Austrian Federal Criminal Investigation Office. This law does not extend to the evidence learned in the preparation of the court proceedings.