Legal professional privilege in the sense of civil and criminal proceedings
Legal professional privilege in Finland and scope of confidentiality rights and the restrictions on testifying differ depending on the responsibilities of the lawyer in relation to which sensitive information has been accessed. There is also a distinction between judges, legal counsel and other lawyers. However, this distinction is of minor significance in the context of civil and criminal litigation since, in principle, only advocates and licensed legal counsel can serve as a lawyer or counsel in legal proceedings.
Confidentiality
Section 5c of the Advocates Act specifies that a lawyer or his or her assistant shall not reveal, without due permission, the secrets of a person or a family or a company or professional confidentiality that have come to their attention in the course of his or her professional activities. Any information collected therefrom shall be kept confidential, irrespective of whether or not it has been gained in connection with tasks relating to legal proceedings. A related clause is included in the Law on Licensed Legal Counsel.
Pursuant to Chapter 15, Section 17 of the Code of Judicial Procedure, an attorney or lawyer or an assistant or an interpreter may not reveal without authorization the secrets of a person or a family or a business or professional secret that they have acquired: in the handling of a duty relating to legal proceedings to provide legal advice on the legal status of their client in criminal proceedings; In addition, Section 8 of Chapter 2 of the Criminal Procedure Act (689/1997) applies this provision to prosecution counsel and counsel for the injured party in criminal proceedings.
Breaches of contractual confidentiality obligations are punishable by statute.
Testifying prohibition
Chapter 17, section 13 of the Code of Judicial Procedure specifies that a witness, a lawyer or an interpreter should not, without authorization, provide proof of what they have learned: in carrying out a duty relevant to legal proceedings to provide legal advice on the legal status of a client in a criminal investigation; or in any other proceeding before a legal proceeding or in a provisional case.
The court could, however, compel the person to provide testimony if the prosecutor has brought charges for an offense for which the maximum penalty is at least six years in prison. This exception does not extend to the attorney of the defendant.
In addition, a lawyer, a licensed legal counsel or a public legal aid lawyer can not, without authorization, testify to a personal or family secret or business or professional secret that they have not discovered in the performance of other tasks not related to those listed above. However, if the prosecutor has brought charges for an offense for which the maximum penalty is at least six years in jail, or if very significant reasons, taking into account the nature of the event, the importance of the testimony for the delivery of the judgment and the implications of the presentation of the testimony as well as other circumstances, are required, the court may oblige them to testify.
The duty to refuse to offer evidence remains in effect even though the person involved is no longer in a position in which he or she has heard of the circumstances at issue in the testimony.
Where a lawyer has the right or duty to refuse to provide evidence in criminal proceedings, the lawyer shall also have the same right or obligation in relation to the criminal investigation in respect of the matter. Furthermore, a document can not be seized or copied for use as proof provided that it can be presumed that it contains information on which the lawyer may refuse to offer evidence and the document is in the hands of that lawyer or of a person for whom the duty or right to remain silent has been created.
Legal professional privilege in the sense of antitrust/competition inquiries
Pursuant to section 38, subsection 3 of the Competition Act (948/2011), an undertaking subject to an inquiry has no duty to send documents to the Finnish Competition and Consumer Authority (FCCCA) containing confidential correspondence between an external legal consultant and the client. In addition, the preparatory works of the Competition Act specify that communication must be such that it may have significance in relation to the fulfillment of the rights of protection of the undertaking. It can also be found in the ‘FCCA brochure on the inspection of business premises under Section 35 of the Competition Act (2017)’ that the correspondence referred to above must have been exchanged in order to protect the corporation against the restriction of competition under investigation.
According to the preparatory work of the Competition Act, this clause is of an informative nature and corresponds to the concept of legal professional privilege enshrined in the case law of the European Court of Justice, which, according to the preparatory work, can be assumed to be relevant in national investigations concerning infringements of competition law. In the ‘FCCA brochure on the inspection of business premises under Section 35 of the Competition Act (2017), the FCCA reported that it takes into account the decision-making procedure of the courts of the European Union with regard to legal professional privilege.
Scope of Legal Professional Rights
The scope of defense depends to some degree on whether information has been collected in connection with legal proceedings or other advisory tasks. Subject to these conditions, there are no general restrictions on the types of documents and communications that fall within the scope of security. Information that must be kept secret includes almost any piece of information that is not known to the media.
Similarly, the time at which the papers have been prepared or submitted by the client is not as important as long as there is a link to legal proceedings (unlicensed lawyers or licensed legal counsel and advocates) or other consulting activities (licensed legal counsel and advocates only) and the information has been gathered in the capacity of the lawyer as legal counsel.