According to the Code of Ethics for Danish Attorneys, the principle of confidentiality is based on the rule of law. It is at the same time moral obligation and right to be respected, both in the interests of individual clients and in the interests of the public.
Confidentiality between a lawyer and a client is also a general principle of Danish law, but not a formal right in all fields of law. As far as competition law is concerned, the legal professional right is based on the procedures and soft law of the Danish competition authorities.
Legal professional privilege in the sense of the inquiry by the Danish competition regulator
In the sense of competition law, two different sets of laws relate to legal professional privilege, because competition law is enforced by two separate authorities. Special regulations on legal professional privilege shall apply in criminal proceedings. The concepts of EU case law on legal professional privilege apply in the field of administrative competition law.
In Denmark, infringements of competition law are subject to criminal penalties, including fines and imprisonment. The Danish Competition and Consumer Authority (DCCA) does not yet have the authority to levy administrative fines. Following the implementation of the ECN+ Directive, this authority will be established in accordance with Danish law.
The Danish definition of legal professional privilege in competition law cases is therefore based on (1); legal professional privilege subject to EU case law; and (2) the privilege of secrecy provided by the criminal law and enforced by the State Prosecutor for Serious Economic and International Crime (SEIC).
The DCCA has the right to obtain information pursuant to sections 17 and 18 of the Danish Competition Act (concerning requests for information and unannounced inspections, i.e. dawn raids). The acts of the Authority are administrative coercive measures and are controlled by the Danish Administrative Coercive Measures Act, supplemented by EU case law on legal professional privilege.
In practice, the DCCA can conduct an administrative investigation if it believes that the Danish Competition Act has been infringed. In general, the DCCA shall refer the case to the SEIC as soon as it becomes fairly clear that there is a violation of competition.
The legislation
In complicated cases, the DCCA will also opt to perform its own investigation and issue behavioral directives in support of any violation, e.g. revocation of orders. All orders shall be open to appeal. If an order has been appealed by a faction, SEIC will await the result of the appeal.
If, during the inspection, a disagreement occurs as to whether a document is entitled to legal professional privilege, the DCCA shall act in compliance with its dawn raid guidelines. Contested documents are put and locked in an individual assessment briefcase after the dawn raid has taken place. For electronic records, the DCCA may make copies and store them on special hard drives for further analysis.
The hard drives holding the copied data are sealed and stored in a locked safe in a specially guarded investigation room in the DCCA.
The organization under investigation or its representative (e.g. an external lawyer) is invited to witness the violation of the seal on the copied hard drives and to assist in the subsequent search. During the search, an agency or its lawyers can determine which electronic records it considers to be entitled to legal professional privilege. These records will be classified and removed from potential searches. The agency must clarify the grounds on which it asserts privilege in respect of such records. If the individual and the DCCA are unable to agree on the documents to be used in the event, the DCCA will issue a written opinion on the matter. A party can apply to stay and appeal the decision of the DCCA.
Legal professional privilege in the form of criminal investigations SEIC’s powers of inspection are laid down in the Statute on the Administration of Justice. SEIC is not bound by EU legal professional privilege case law. However, the party under investigation is entitled to request a lawyer and all communication between the client and his lawyer about the alleged violation will be privileged and confidential. This protection shall extend from the time of the indictment; thus, any communications made up to the point of indictment shall not be protected unless those communications are subject to legal professional privilege under EU law.
Legal professional privilege in the sense of civil proceedings
In Danish civil litigation, it is usually the duty of the parties to determine what details they wish to reveal. If the party demands information to be disclosed, the other party is entitled to reject the request and to acknowledge the procedural consequences of not submitting the information.
In the case of competition law, the Directive on damages has been enforced in Danish law. As a result, the provisions of the Administration of Justice Act concerning the disclosure of records in civil proceedings apply. Consequently, all records and details are excluded from disclosure if they reside in individuals exempted from providing evidence in civil proceedings under the rules on the exemption of witnesses.
Scope of Legal Professional Rights
What is being covered by legal professional privilege?
The scope of legal professional privilege in administrative investigations conducted by the DCCA represents the principles of EU case law on legal professional privilege.
Legal professional privilege in criminal proceedings undertaken by SEIC prevents a lawyer from being forced to provide evidence and protects a lawyer’s written advice or the like from being scanned or confiscated (Sections 794(3) and 802(4) cf. Section 170 of the Statute on the Administration of Justice).
The written advice of the lawyer requires correspondence from the lawyer or his assistants to the suspect, including e-mails and telecommunications from a cell phone. It does not refer to the suspect’s own notes of any meeting(s) with his counsel. During any criminal inquiry at the premises of a suspect, the SEIC must be available to decide if the record includes written advice from a lawyer. Where there is some doubt, the SEIC can, in the first place, seize the documents in question in order to refer the matter to the court for a decision. Any interference with confidentiality between a suspect and his or her counsel would often include a prior court order.
Given that the papers are generated in the capacity of the lawyer as a lawyer, they fall within the scope of legal professional privilege. However, in special cases, the court can require a lawyer to reveal such evidence unless the lawyer serves as a criminal defense attorney.
The lawyer is deemed to have been working as a criminal defense attorney because the lawyer and the client may fairly have known that the client would have been charged with a crime.
Is correspondence with in-house counsel secured by legal professional privilege?
Danish lawyers are required to maintain legal credentials while they are working as in-house counsel. However, as in-house lawyers take orders from their boss, they do not behave individually, which ensures that communications made to their employers by in-house lawyers are not entitled to legal professional rights.
Will the legal professional right of non-national trained lawyers extend to correspondence?
For EU lawyers the same rules apply as for the Danish lawyers. Law degrees from outside the EU are not accepted in Denmark.
Communications made by trained lawyers within the EU are also entitled to legal professional rights in Danish proceedings.
Lawyers who have registered outside the EU cannot rely on legal professional rights in their communications.
How legal professional privilege is waived?
Legal professional privilege under Danish law is regulated by EU case law on legal professional privilege and can only be waived by the client.