The relationship between the lawyer and the client is governed by Federal Law 8.906/94, which regulates the legal profession in Brazil and the operation of the Brazilian Bar Association, and the Code of Ethics and Discipline adopted by the Brazilian Bar Association. Confidentiality is considered to be a concept ‘inherent to the legal profession’ and lawyers are obliged to protect the confidentiality of all details made accessible to them by clients, including information revealed in the sense of civil proceedings, criminal prosecutions and investigations by any competition or other authorities.
The right of a lawyer-client in Brazil refers to a contact made: to a lawyer properly registered with the Brazilian Bar Association by a person who is, has been or is being pursued to become a client of the appropriate lawyer, and in the form of a client-law relationship and for the purpose of receiving legal advice.
Prosecutors may be liable to administrative action, criminal charges and lawsuits for damages if they violate their duty of confidentiality ‘without just cause.’
Scope of Legal Professional Privilege
What is being covered by legal professional privilege?
Attorneys should not reveal any non-public information acquired from or otherwise collected from their clients in the sense of the client-law relationship, regardless of the existence of the information or the manner in which it is disclosed/obtained. In addition, lawyers cannot provide evidence to the courts or any other body as to the facts relating to their clients or when such testimony includes matters which may be subject to confidentiality obligations.
Attorney’s office/workplace, job tools/products and work-related messages are also protected by the client’s right and cannot be searched and/or confiscated by third parties (unless the attorney is the subject of an investigation for having committed a crime, whether in collusion with their client or not, and a specific search warrant is obtained from a competent court).
All lawyers properly registered with the Brazilian Bar Association, including domestic counsel and international lawyers acting in Brazil as ‘foreign law consultants’ pursuant to Rule 91/00 passed by the Federal Council of the Brazilian Bar Association, must comply with the duty of confidentiality. The right extends without distinction, whether the client-law arrangement includes civil lawsuits, criminal prosecutions or investigations by some antitrust or other jurisdiction.
The protection will not extend to information that is already in the public domain at the time it is disclosed/received or that subsequently enters the public domain, and while lawyers should refrain from publicly disclosing matters concerning their clients, they will not be in violation of their duty to confidentiality if they share information already in the public domain with third parties.
Attorneys may only be allowed to reveal confidential information disclosed to or received from them in the sense of the client-law relationship in cases of ‘serious threat to life or honor’. Cases which may fall under the category of ‘serious danger to life or honor’ or ‘affront’ are not specifically specified by Law 8.906/94 or the Code of Ethics and Discipline.
Legal Professional Privilege in accordance with merger regulation
As in Europe, rapid technological changes have changed the merger control environment, with complex, highly technical mergers taking place. The lack of awareness of some industries also contributes to large demands for information and a study of corporate internal records in order to determine the markets and the strategy of the undertakings. In certain cases, this can result in exposure at the cost of legal professional privilege.
Legal professional privilege is not established in the context of Brazilian merger control, but has been recognized as a fundamental right under the Brazilian legal system and will not be ignored in the context of merger control proceedings.
In merger situations, it is reasonably usual to rely on work performed by economists as well. These records are not subject to privilege and can be openly used by the Competition Regulator and even shared with other competition regulators, provided that they ensure that competitively sensitive data (prices, amounts, business strategy, business secrets, among others) cannot be accessed by competitors and the general public.