Definition
Hungary does not have an independent and distinct right to legal professional privilege. Under the Act on Legal Practice, however, legal practitioners are expected to protect the confidentiality of privileged attorney-client information. This duty of confidentiality applies to documents and other data carriers which contain such protected attorney-client information.
Except for such exceptions, legal professionals are not bound by any duty of confidentiality with respect to their clients where, in the course of the work carried out for the benefit of that client, protected information has been collected. Where, in the sense of a specific case, privileged information is collected from another practising attorney, the legal practitioner may not reveal that information to his or her own client if the person transmitting the information has expressly forbidden such disclosure.
The confidentiality responsibilities of the legal practitioner are independent of the nature of a legal relationship, and any termination of the legal relationship or mandate continues.
Therefore, on the basis of the above, no separate right exists that expressly provides immunity to legal advice. However, the duty placed on lawyers not to reveal information gained because of their professional abilities is a required consequence.
As confidentiality is a consequence of the duty of secrecy, the privileges are related to the lawyer and not to legal advice. It is a personal right. This basically implies that only data exchanged to and in the hands of the lawyer is secured. Advice or data given to their client by the lawyer does not fall within the scope of security (save for certain specific information, eg in the field of antitrust and competition law).
Legal professional privilege in the sense of judicial inquiries
In criminal cases, legal professionals must object to being heard as witnesses and/or may not reveal data relating to attorney-client protected details, except when the person entitled to waive the attorney-client confidentiality obligation has been exempted from their confidentiality obligation. However, in respect of attorney-client confidential knowledge accessed by a lawyer serving as defence counsel, no waiver is necessary. However, legal practitioners can, to the degree appropriate to prove a crime committed against them by a person other than the client, or a crime committed against their client (with the consent of their client), reveal attorney-client privileged information.
Legal professional privilege in the light of the competition authority’s inquiries
The Hungarian competition authority’s investigation is subject to the existing national laws on legal professional privilege. In any regulatory proceedings, legal practitioners must object to being heard as witnesses and/or may not reveal data relating to attorney-client protected details, unless the individual entitled to waive the requirement has been exempted from their duty of confidentiality.
Where an inquiry is carried out by the European Commission (including where the European Commission is assisted by an EU Member State’s national competition authority), immunity shall be given to communications relating to the procedure for the compliance of Articles 101-102 TFEU. Communications that predate the implementation of such a procedure but are connected to its meaning are also covered. In response to a request for information from the European Commission, documents covered by EU legal professional privilege are both protected against confiscation during a dawn raid carried out by the European Commission and exempted from disclosure.
Legal professional privilege scope
It can generally be claimed that, due to the existence of the confidentiality duty mentioned above, documents enjoy security irrespective of the time at which they were made. Generally, with respect to the form of documents or contents covered, there is no clear law. Privileged information from the attorney-client may include any and all evidence, information and data collected by the legal practitioner during the process of conducting his professional duties.
It is usually meaningless when a document has been created in competition law proceedings, given that it is classified as a privileged correspondence between lawyer and client with the caveat that a court may rule otherwise if it can be proven from the contents of the document in question that it was created for the purpose of violating legal professional privilege.
Are in-house consulting interactions secured by legal professional privilege?
Only if they practice law (e.g. endorsement or legal representation) under the Hungarian Act on Legal Practice may in-house lawyers (including bar association legal counsel and legal clerks) benefit from the protection of legal professional privilege. However, bar association lawyers and legal clerks are not bound by any obligations of confidentiality with respect to their employer (or any person identified by that employer or their client) in the circumstances in which, during the course of their jobs, protected information was obtained.
Is the correspondence of non-nationally trained lawyers entitled to legal professional privilege?
Jurists of the European Community who permanently practice law in the territory of Hungary must comply with the provisions of the Act on Legal Practice and the rules of the Hungarian Bar Association in the course of their practices.
The Act on Legal Practice also regulates the activities of jurists of the European Community who provide temporary legal representation services. Other than legal representation, the activities of European Community jurists offering temporary services in Hungary shall be regulated by the laws of the EU Member State in which the European Community jurist is registered. Notwithstanding the absence of permanent practice in the territory of Hungary, in the case of such jurists of the European Community, the Act on Legal Practice and the Rules of the Hungarian Bar Association will be valid.
International (non-EEA) trained lawyers are subject to the Hungarian Legal Practice Act only if they practice law in Hungary (e.g. endorsement or legal representation) and are registered with the Hungarian Bar Association as foreign legal counsel.
In-house counsel
For the activities of any non-national in-house counsel practicing law (e.g. endorsement or legal representation) in Hungary as registered in-house counsel, legal professional privilege laws deriving from the Act on Legal Practice will apply.
When is legal professional privilege waived?
Generally, an informed waiver of the professional confidentiality duty owed by lawyers may be issued by the client. In criminal cases, however, except with the client’s informed consent, the prosecutor can not reveal sensitive knowledge gained in his capacity as a defense lawyer.