Lex Mundi Global Attorney-Client Privilege Guide |
|
Taiwan |
|
|
(Asia Pacific)
Firm
Tsar & Tsai Law Firm
Contributors
Lynn Lin |
|
| Is the ACP recognized in your jurisdiction? | The concept of ACP is not expressly adopted under the law, but certain relevant protection is available under Taiwan laws. Please see below for more details. |
| 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 protection of attorney-client communications is primarily available by the attorney’s confidentiality obligations and the attorney’s right not to testify. Article 37 of the Ethical Rule of Attorney-at-law provides that an attorney shall keep the information of his/her mandated cases in strict confidence and shall not reveal such information without obtaining the client’s consent. Article 316 of the Taiwanese Criminal Code prohibits lawyers or former lawyers from disclosing, without justification, the secrets of another that he knows or possesses due to his professional service. As the law requires lawyers to keep clients’ secrets in confidence, the courts, in practice, rarely allow the discovery of attorney-client communication or work products in civil procedures. Further, a lawyer may refuse to testify in civil or criminal proceedings for matters subject to confidentiality obligations due to professional service. Article 307 of the Code of Civil Procedure provides that a witness may refuse to testify in civil proceedings if the witness is examined concerning a matter which he is obliged to keep confidential in the course of their professional services. Similarly, Article 182 of the Code of Criminal Procedure provides that an attorney or former attorney may refuse to testify in criminal proceedings for matters concerning confidential information of another person that he/she obtained in the course of his/her professional service unless such other person gives permission. |
| 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? | The available protections of attorney-client communications and other confidential in civil and criminal proceedings are nearly indistinguishable. It is important to note that a lawyer cannot refuse to take the stand by invoking the right not to testify in either criminal proceedings or civil proceedings, but can only refuse to answer certain questions if those questions relate to confidential information that he/she obtained in the course of professional services. |
| 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.) | Not applicable as Taiwan does not recognize ACP. |
| 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? | Not applicable as Taiwan does not recognize ACP. |
| Civil Law Jurisdictions: May in-house counsel assert privilege or professional confidentiality? | As ACP is not recognized in Taiwan, there is no legal basis for in-house counsel to assert privilege in the same way as it is available in jurisdictions where the ACP is recognized. However, under the Ethical Rule of Attorney-at-law, all attorneys, including in-house counsel, are subject to confidentiality obligations regarding the information obtained in the course of their professional services. Also, the attorney’s right not to testify applies to in-house counsel, which may serve as a basis for protecting certain in-house counsel’s communications from disclosure. |
| Civil Law Jurisdictions: Is in-house counsel allowed to be active members of your jurisdiction’s bar? | Yes, in-house counsel are allowed to be active members of local bar associations. |
| Is the common interest doctrine recognized in your jurisdiction? | The doctrine is not recognized in Taiwan. |
| 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? | Litigation funding was not specifically regulated or prohibited by law in Taiwan. Therefore, in principle, litigation funding is allowed in Taiwan. There are no professional rules that specifically address litigation funding, and the practice is relatively uncommon and not well-developed. That being said, attorneys in Taiwan are subject to ethical obligations, including the duty to avoid conflicts of interest and to maintain the confidentiality of their clients' information. Attorneys who are involved in litigation funding arrangements would need to ensure that their participation in such arrangements does not violate these ethical obligations. |
| Have the courts in your jurisdiction addressed whether communications with litigation funders may be protected by the ACP or the work-product protection | As ACP is not recognized in Taiwan, communications with litigation funders would not be protected by this doctrine. However, in practice, attorneys may obtain the informed consent of the client for the disclosure of such information to the litigation funder while entering into a non-disclosure agreement to keep the information confidential. |
| Is the crime-fraud exception recognized in your jurisdiction? | As ACP is not recognized in Taiwan, there is no specific provision or legal precedent in Taiwan regarding the crime-fraud exception to attorney-client privilege. That said, lawyers are allowed to disclose confidential matters to the extent necessary for avoiding harm to anyone’s life, body or health, or for preventing or mitigating the substantial damage to others’ property caused by the client’s criminal intention, plan, or continuation of his/her criminal offense. |
| What statutes or key court decisions articulate the crime-fraud exception in your jurisdiction? | As stated above, there is no specific provision or legal precedent in Taiwan regarding the crime-fraud exception. As to the similar exception of confidentiality obligations, Article 37 of the Ethical Rule of Attorney-at-law provides that lawyers are allowed to disclose confidential matters to the extent necessary for avoiding harm to anyone’s life, body or health, or for preventing or mitigating the substantial damage to others’ property caused by the client’s criminal intention, plan, or continuation of his/her criminal offense. |
| 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)?) | There is no statute or rule that protects information obtained or prepared in anticipation of litigation from disclosure in legal proceedings. |
| What are the elements of the protection in your jurisdiction? | Not applicable. |
| Does your jurisdiction recognize an accountant-client privilege? | No, Taiwan does not recognize an accountant-client privilege. However, similar protections for professional confidentiality and the right not to testify are also available. |
| Does your jurisdiction recognize a mediation privilege? | Yes. The mediation process may be kept confidential by mutual consent of the parties. In addition, pursuant to the Taiwan Code of Civil Procedure, in an action initiated as a result of an unsuccessful mediation, guidance provided by the mediators or the judge and representations or concessions made by the parties during the mediation proceeding shall not be adopted as the basis of court decisions. |
| Does your jurisdiction recognize a settlement negotiation privilege? | There is no specific rule for settlement negotiation privilege. However, similar to mediation, any representations or concessions made by the parties during the settlement negotiation before the court shall not be adopted as the basis of court decisions. |
Lex Mundi Global Attorney-Client Privilege Guide
The concept of ACP is not expressly adopted under the law, but certain relevant protection is available under Taiwan laws. Please see below for more details.
Yes. The protection of attorney-client communications is primarily available by the attorney’s confidentiality obligations and the attorney’s right not to testify.
Article 37 of the Ethical Rule of Attorney-at-law provides that an attorney shall keep the information of his/her mandated cases in strict confidence and shall not reveal such information without obtaining the client’s consent. Article 316 of the Taiwanese Criminal Code prohibits lawyers or former lawyers from disclosing, without justification, the secrets of another that he knows or possesses due to his professional service. As the law requires lawyers to keep clients’ secrets in confidence, the courts, in practice, rarely allow the discovery of attorney-client communication or work products in civil procedures.
Further, a lawyer may refuse to testify in civil or criminal proceedings for matters subject to confidentiality obligations due to professional service. Article 307 of the Code of Civil Procedure provides that a witness may refuse to testify in civil proceedings if the witness is examined concerning a matter which he is obliged to keep confidential in the course of their professional services. Similarly, Article 182 of the Code of Criminal Procedure provides that an attorney or former attorney may refuse to testify in criminal proceedings for matters concerning confidential information of another person that he/she obtained in the course of his/her professional service unless such other person gives permission.
The available protections of attorney-client communications and other confidential in civil and criminal proceedings are nearly indistinguishable. It is important to note that a lawyer cannot refuse to take the stand by invoking the right not to testify in either criminal proceedings or civil proceedings, but can only refuse to answer certain questions if those questions relate to confidential information that he/she obtained in the course of professional services.
Not applicable as Taiwan does not recognize ACP.
Not applicable as Taiwan does not recognize ACP.
As ACP is not recognized in Taiwan, there is no legal basis for in-house counsel to assert privilege in the same way as it is available in jurisdictions where the ACP is recognized.
However, under the Ethical Rule of Attorney-at-law, all attorneys, including in-house counsel, are subject to confidentiality obligations regarding the information obtained in the course of their professional services. Also, the attorney’s right not to testify applies to in-house counsel, which may serve as a basis for protecting certain in-house counsel’s communications from disclosure.
Yes, in-house counsel are allowed to be active members of local bar associations.
The doctrine is not recognized in Taiwan.
Not applicable.
Not applicable.
Litigation funding was not specifically regulated or prohibited by law in Taiwan. Therefore, in principle, litigation funding is allowed in Taiwan.
There are no professional rules that specifically address litigation funding, and the practice is relatively uncommon and not well-developed.
That being said, attorneys in Taiwan are subject to ethical obligations, including the duty to avoid conflicts of interest and to maintain the confidentiality of their clients' information. Attorneys who are involved in litigation funding arrangements would need to ensure that their participation in such arrangements does not violate these ethical obligations.
As ACP is not recognized in Taiwan, communications with litigation funders would not be protected by this doctrine. However, in practice, attorneys may obtain the informed consent of the client for the disclosure of such information to the litigation funder while entering into a non-disclosure agreement to keep the information confidential.
As ACP is not recognized in Taiwan, there is no specific provision or legal precedent in Taiwan regarding the crime-fraud exception to attorney-client privilege. That said, lawyers are allowed to disclose confidential matters to the extent necessary for avoiding harm to anyone’s life, body or health, or for preventing or mitigating the substantial damage to others’ property caused by the client’s criminal intention, plan, or continuation of his/her criminal offense.
As stated above, there is no specific provision or legal precedent in Taiwan regarding the crime-fraud exception.
As to the similar exception of confidentiality obligations, Article 37 of the Ethical Rule of Attorney-at-law provides that lawyers are allowed to disclose confidential matters to the extent necessary for avoiding harm to anyone’s life, body or health, or for preventing or mitigating the substantial damage to others’ property caused by the client’s criminal intention, plan, or continuation of his/her criminal offense.
There is no statute or rule that protects information obtained or prepared in anticipation of litigation from disclosure in legal proceedings.
Not applicable.
No, Taiwan does not recognize an accountant-client privilege. However, similar protections for professional confidentiality and the right not to testify are also available.
Yes. The mediation process may be kept confidential by mutual consent of the parties. In addition, pursuant to the Taiwan Code of Civil Procedure, in an action initiated as a result of an unsuccessful mediation, guidance provided by the mediators or the judge and representations or concessions made by the parties during the mediation proceeding shall not be adopted as the basis of court decisions.
There is no specific rule for settlement negotiation privilege. However, similar to mediation, any representations or concessions made by the parties during the settlement negotiation before the court shall not be adopted as the basis of court decisions.