Lex Mundi Global Attorney-Client Privilege Guide |
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Macau |
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| (Asia Pacific) Firm MdME | |
| Is the ACP recognized in your jurisdiction? | ACP, as a common law concept, where the client (and not the lawyer) holds the privilege and may waive it, does not exist in Macau. |
| If the ACP is not recognized in your jurisdiction, are there rules of professional confidentiality or other rules that would enable a lawyer or a client to withhold attorney-client communications or work product prepared by counsel from disclosure... | Yes. The rules of professional confidentiality constitute a right and a duty of the lawyer, who is required to keep all information provided by the client and to which the lawyer accessed in the course of the discharge of his mandate confidential (article 5 of the Macau Lawyer’s Code of Ethics). Professional confidentiality applies to:
The professional secrecy rule is not limited to judicial proceedings, and is applicable irrespective of the lawyer being paid for his/her services, and regardless of the lawyer having accepted and fully discharged the representation or service. The same confidentiality rule also applies to the lawyers that, directly or indirectly, have any intervention in the services rendered to the client. Professional secrecy also covers documents or other items that are directly or indirectly related to facts subject to confidentiality. All facts and evidence disclosed in violation of the abovementioned confidentiality duties are null. In civil procedure, where the primary rule is the principle of cooperation for the discovery of the truth, the lawyer should ask to be excused from testifying on the basis of professional secrecy (articles 442 and 519, paragraph 3, of the Macau Civil Procedure Code). Having asked to be excused to comply with the duty to cooperate, if there are reasonable doubts in relation to the legitimacy of the excuse, the judicial authority may carry out investigations to ascertain such legitimacy, and having concluded these investigations, the judicial authority may order or request the court to order the testimony by the lawyer. Irrespective of this, the court may order the provision of testimony, regardless of the confidentiality duty, whenever it is justified by the applicable rules and principles of law. The court may hear the Macau Lawyer’s Association in relation to the provision of testimony (article 442, paragraph 4 of the Macau Civil Procedure Code and article 122 of the Macau Criminal Procedure Code). |
| Is a distinction made in applying the ACP or professional confidentiality rules in civil and criminal proceedings? May government authorities require disclosure of attorney-client communications and legal work product? | In general, no distinction is made in relation to professional confidentiality rules in civil and criminal proceedings. In fact, the Macau Civil Procedure Code refers that the rules on professional secrecy (specifically, the excuse to not cooperate) contained in the Macau Criminal Procedure Code are directly applicable to the civil procedure. |
| In the corporate context, what test is applied to determine who within a corporation is considered the client for the purposes of the ACP? (e.g., in the U.S.: the Upjohn approach, control group test, etc.) | For the purposes of Macau law, the entity itself would be considered as the client. Please refer to our replies below in this respect. |
| Is in-house counsel expected to meet a higher burden than outside counsel in order to establish that privilege applies to in-house counsel’s communications? | Privilege is a duty of lawyers who are registered to practice in Macau with the Macau Lawyers’ Association. To the extent that the in-house counsel is a lawyer meeting these requirements, he/she will be subject to the same rules on confidentiality, with no distinction arising from their in-house role. Please refer to our replies below in this respect. |
| Civil Law Jurisdictions: May in-house counsel assert privilege or professional confidentiality? | In-house counsel may be jurists or lawyers. In the latter case, the employment contract concluded between the lawyer and the company should not affect the lawyer’s exemption and independence, as well as any of the rights, duties and principles applicable to lawyers. In-house counsel may only assert professional confidentiality if he/she is a lawyer, registered in the Macau Lawyer’s Association, in relation to the facts disclosed to him/her. In this case, the client would be the company itself. Its directors, officers or employees represent the company`s will. As a result, all the facts disclosed by the officers, directors or employees to the in-house counsel during the exercise of his professional duties are under the protection of article 5 of the Macau Lawyer’s Code of Ethics, as stated above. Nevertheless, non-lawyer in-house counsel may be subject to a duty to maintain confidentiality (e.g. they may be subject to non-disclosure agreements or requirements). |
| Civil Law Jurisdictions: Is in-house counsel allowed to be active members of your jurisdiction’s bar? | In-house counsel may only be active members in the Macau Lawyer’s Association if the counsel is a lawyer him/herself. In any case, if the role of in-house counsel is able to affect the person’s independence, it may be deemed as incompatible with the profession of advocacy, in which case the person may not cumulate his/her role as in-house counsel and lawyer and should suspend his/her registration at the Macau Lawyer’s Association. |
| Is the common interest doctrine recognized in your jurisdiction? | No, the common interest doctrine is not recognized in Macau. |
| How is the doctrine articulated in your jurisdiction? | Not applicable. |
| Must a common interest agreement be in writing? | Not applicable. |
| Is litigation funding permitted in your jurisdiction? Are there any professional rules in this respect? | Macau has not enacted any regulation for litigation funding. |
| Have the courts in your jurisdiction addressed whether communications with litigation funders may be protected by the ACP or the work-product protection | Not applicable. |
| Is the crime-fraud exception recognized in your jurisdiction? | Not expressly. However, Article 7 of the Macau Lawyer’s Code of Ethics refers that the lawyer may not be restricted by professional secrecy, provided that the facts to be disclosed are absolutely necessary for the defense of the dignity, rights and legitimate interests of the lawyer. Considering that the lawyer has the role of administrator of justice, the referred provision may be interpreted as foreseeing the crime-fraud exception. |
| What statutes or key court decisions articulate the crime-fraud exception in your jurisdiction? | Not applicable. |
| Is there a statute or rule that protects information obtained or prepared in anticipation of litigation from disclosure in legal proceedings? (In the U.S.: What state rule is your jurisdiction’s analog to FRCP 26(b)(3)?) | Information obtained or prepared in anticipation of litigation is covered by professional secrecy, under article 5 of the Macau Lawyer’s Code of Ethics. As referred above in our response to "If the ACP is not recognized in your jurisdiction, are there rules of professional confidentiality or other rules that would enable a lawyer or a client to withhold attorney-client communications or work product prepared by counsel from disclosure in a civil proceeding?", professional secrecy also covers documents or other things that are directly or indirectly related to facts subject to confidentiality. |
| What are the elements of the protection in your jurisdiction? | Please refer to our previous responses. |
| Does your jurisdiction recognize an accountant-client privilege? | Macau recognizes that the accountant should maintain the client’s industrial and commercial secrets as confidential, provided that the accountant had the knowledge of these facts in the course of its activity (article 64 of the Qualification Scheme and Practice of the Accounting Profession). |
| Does your jurisdiction recognize a mediation privilege? | Only if a mediator is a lawyer at the same time. |
| Does your jurisdiction recognize a settlement negotiation privilege? | Settlement negotiation privilege is not expressly foreseen in Macau. |
Lex Mundi Global Attorney-Client Privilege Guide
ACP, as a common law concept, where the client (and not the lawyer) holds the privilege and may waive it, does not exist in Macau.
Yes. The rules of professional confidentiality constitute a right and a duty of the lawyer, who is required to keep all information provided by the client and to which the lawyer accessed in the course of the discharge of his mandate confidential (article 5 of the Macau Lawyer’s Code of Ethics).
Professional confidentiality applies to:
- all facts referring to professional matters, that were disclosed by the client, or on behalf of the client, or were made aware to the lawyer in the course of his/her work;
- all facts that were communicated to the lawyer, by virtue of his/her role held in the Macau Lawyer’s Association or by any colleague;
- all facts communicated by the co-plaintiff, co-defendant or co-interested party of the client or its representative;
- all facts that were made known by the counterparty of the client or respective representatives, during negotiations for amicable resolution.
The professional secrecy rule is not limited to judicial proceedings, and is applicable irrespective of the lawyer being paid for his/her services, and regardless of the lawyer having accepted and fully discharged the representation or service. The same confidentiality rule also applies to the lawyers that, directly or indirectly, have any intervention in the services rendered to the client. Professional secrecy also covers documents or other items that are directly or indirectly related to facts subject to confidentiality.
All facts and evidence disclosed in violation of the abovementioned confidentiality duties are null.
In civil procedure, where the primary rule is the principle of cooperation for the discovery of the truth, the lawyer should ask to be excused from testifying on the basis of professional secrecy (articles 442 and 519, paragraph 3, of the Macau Civil Procedure Code).
Having asked to be excused to comply with the duty to cooperate, if there are reasonable doubts in relation to the legitimacy of the excuse, the judicial authority may carry out investigations to ascertain such legitimacy, and having concluded these investigations, the judicial authority may order or request the court to order the testimony by the lawyer. Irrespective of this, the court may order the provision of testimony, regardless of the confidentiality duty, whenever it is justified by the applicable rules and principles of law. The court may hear the Macau Lawyer’s Association in relation to the provision of testimony (article 442, paragraph 4 of the Macau Civil Procedure Code and article 122 of the Macau Criminal Procedure Code).
In general, no distinction is made in relation to professional confidentiality rules in civil and criminal proceedings. In fact, the Macau Civil Procedure Code refers that the rules on professional secrecy (specifically, the excuse to not cooperate) contained in the Macau Criminal Procedure Code are directly applicable to the civil procedure.
For the purposes of Macau law, the entity itself would be considered as the client. Please refer to our replies below in this respect.
Privilege is a duty of lawyers who are registered to practice in Macau with the Macau Lawyers’ Association. To the extent that the in-house counsel is a lawyer meeting these requirements, he/she will be subject to the same rules on confidentiality, with no distinction arising from their in-house role. Please refer to our replies below in this respect.
In-house counsel may be jurists or lawyers. In the latter case, the employment contract concluded between the lawyer and the company should not affect the lawyer’s exemption and independence, as well as any of the rights, duties and principles applicable to lawyers. In-house counsel may only assert professional confidentiality if he/she is a lawyer, registered in the Macau Lawyer’s Association, in relation to the facts disclosed to him/her. In this case, the client would be the company itself. Its directors, officers or employees represent the company`s will. As a result, all the facts disclosed by the officers, directors or employees to the in-house counsel during the exercise of his professional duties are under the protection of article 5 of the Macau Lawyer’s Code of Ethics, as stated above. Nevertheless, non-lawyer in-house counsel may be subject to a duty to maintain confidentiality (e.g. they may be subject to non-disclosure agreements or requirements).
In-house counsel may only be active members in the Macau Lawyer’s Association if the counsel is a lawyer him/herself. In any case, if the role of in-house counsel is able to affect the person’s independence, it may be deemed as incompatible with the profession of advocacy, in which case the person may not cumulate his/her role as in-house counsel and lawyer and should suspend his/her registration at the Macau Lawyer’s Association.
No, the common interest doctrine is not recognized in Macau.
Not applicable.
Not applicable.
Macau has not enacted any regulation for litigation funding.
Not applicable.
Not expressly. However, Article 7 of the Macau Lawyer’s Code of Ethics refers that the lawyer may not be restricted by professional secrecy, provided that the facts to be disclosed are absolutely necessary for the defense of the dignity, rights and legitimate interests of the lawyer. Considering that the lawyer has the role of administrator of justice, the referred provision may be interpreted as foreseeing the crime-fraud exception.
Not applicable.
Information obtained or prepared in anticipation of litigation is covered by professional secrecy, under article 5 of the Macau Lawyer’s Code of Ethics. As referred above in our response to "If the ACP is not recognized in your jurisdiction, are there rules of professional confidentiality or other rules that would enable a lawyer or a client to withhold attorney-client communications or work product prepared by counsel from disclosure in a civil proceeding?", professional secrecy also covers documents or other things that are directly or indirectly related to facts subject to confidentiality.
Please refer to our previous responses.
Macau recognizes that the accountant should maintain the client’s industrial and commercial secrets as confidential, provided that the accountant had the knowledge of these facts in the course of its activity (article 64 of the Qualification Scheme and Practice of the Accounting Profession).
Only if a mediator is a lawyer at the same time.
Settlement negotiation privilege is not expressly foreseen in Macau.