Lex Mundi Global Attorney-Client Privilege Guide |
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Bulgaria |
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| (Europe) Firm Penkov, Markov & Partners Updated 24 Mar 2020 | |
| Is the ACP recognized in your jurisdiction? | Yes, it is recognized and legislatively set in Art. 33- 34 of the Bulgarian Bar Act: Article 33.
Article 34.
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| 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... | See above |
| 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 only distinction made is that in the course of criminal proceedings meetings between the attorney and his/her client, if the latter is in custody, could be observed by the authorities, but the conversation during such meetings could not be recorded or listened to and the documents discussed and exchanged are not subject to review by the authorities. Otherwise, any legal work product or communication between client and attorney cannot be used as evidence before court and are not subject to disclosure even if such is asked by the authorities. |
| 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.) | There is no general guidelines for determination who is the client in the corporate structure. The authorities tend to acknowledge as client any entity within a corporate structure that has communicated with the attorney, irrespective of the fact whether it is entity exercising control within the corporate group or is a controlled entity. |
| 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? | There is no specific law regulating the profession of the in-house counsels in Bulgaria. The APC envisaged in the Bar Act applies only to attorneys registered with the Bar and it is not interpreted broadly. So, currently in-house counsels do not have legislative grounds to state that certain information falls under APC, unless the in-house counsel is registered with the Bar as attorney and works with the client under civil consultancy agreement and not as employee under employment agreement (which, however, shall mean that the he/she is not “in house counsel”, strictly speaking, but more of a “legal consultant” with external status). |
| Civil Law Jurisdictions: May in-house counsel assert privilege or professional confidentiality? | No, unless registered with the Bar and servicing the client under civil law services agreement and not under employment agreement (whereby the common case is the in-house counsels to work for the client under employment contracts). However, such specific situation occurs rarely, as normally the professionals who wish to work as in-house counsel does not have interest to apply for the Bar and maintain status of self-employed person with all the obligations arising therefrom. |
| Civil Law Jurisdictions: Is in-house counsel allowed to be active members of your jurisdiction’s bar? | No, if they work under employment agreement (it is one of the restrictions in the Bulgarian Bar Act). |
| Is the common interest doctrine recognized in your jurisdiction? | This is not specifically regulated. Normally such disclosure may occur only if requested by the client and is not subject to the assessment or discretion of the attorney. |
| How is the doctrine articulated in your jurisdiction? | Please see above. |
| Must a common interest agreement be in writing? | Please see above. |
| Is litigation funding permitted in your jurisdiction? Are there any professional rules in this respect? | It is not specifically regulated. However, it is not forbidden and in practice is achieved on contractual basis, which regulates the relations between the funder and the funded party. |
| Have the courts in your jurisdiction addressed whether communications with litigation funders may be protected by the ACP or the work-product protection | As pointed above, this figure is not specifically regulated by Bulgarian law and is not disclosed to the court or in relevance to the court proceedings. The relations between the funded party, the funder and their attorneys are normally not in any case mentioned or directly cited in the court proceedings. Thus, there is no court practice on the matter. So, in order ACP to apply in such situations, the funder formally should also be constituted as “client” of the attorney – either through contract, issued PoA, etc. As long as the funder normally is the one paying the services of the attorney, the above should be no problem. |
| Is the crime-fraud exception recognized in your jurisdiction? | It is not specifically mentioned in the Bar Act, however, it is common opinion in the court practice that if the attorney is committing a crime through his actions or supporting or assisting on hiding of one, the APC does not apply and the respective documents could be disclosed/seized in the course of criminal proceedings. |
| What statutes or key court decisions articulate the crime-fraud exception in your jurisdiction? | Bulgarian Criminal Code and the practice thereon related to certain criminal offenses. |
| 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)?) | No specific regulation. If such information or documents fall within the general category of APC under Art. 33-34 of the Bulgarian Bar Act, then the party could abstain from its disclosure even if asked to do so by the authorities. |
| What are the elements of the protection in your jurisdiction? | Please see above. |
| Does your jurisdiction recognize an accountant-client privilege? | It does not. |
| Does your jurisdiction recognize a mediation privilege? | It does – see Art. 7 of the Mediation Act. The mediation is confidential procedure and the mediator could not disclose or testify for facts and circumstances revealed to him/her by the parties unless the disclosing party has granted its explicit consent. However, the confidentiality of the mediation is not absolute and could be waived in the following cases:
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| Does your jurisdiction recognize a settlement negotiation privilege? | No specific regulation. The parties could, however, make explicit reservations that any facts and statement disclosed in the course of the negotiations could not be used against them in the court and does not constitute acknowledgement of statements and claims of the counter-party, in which case the courts would dismiss as evidence any such disclosures if made in bad faith by the counter-party (if the matter escalates in court trial). Of course, such “contractual privilege” binds only the parties in the negotiations and does not bind state authorities, which could ask for disclosure. |
Lex Mundi Global Attorney-Client Privilege Guide
Yes, it is recognized and legislatively set in Art. 33- 34 of the Bulgarian Bar Act:
Article 33.
- Attorney-at-law papers, files, electronic documents, computer equipment and other carriers of information shall be inviolable and shall not be subject to inspection, copying, verification or seizure.
- Correspondence between an attorney-at-law and his or her client, irrespective of the manner it is maintained, including electronically, shall not be subject to inspection, verification or seizure and shall not be used as evidence.
- Conferences between an attorney-at-law and his or her client shall not be intercepted and recorded. Any recordings, where available, shall not be used as means of evidence and shall be subject to immediate destruction.
- Attorneys-at-law shall not be interrogated in their procedural capacity with regard to: their conferences and correspondence with clients; their conferences and correspondence with another attorney-at-law; the affairs of clients; facts and circumstances, of which they have become aware in relation to the provision of defense and assistance.
- (Supplemented, SG No. 97/2012) Paragraphs 1 - 4 shall also apply in respect of European Union lawyers, junior attorneys-at-law and attorney-at-law assistants.
Article 34.
- (Supplemented, SG No. 97/2012) Attorneys-at-law or European Union lawyers shall have the right to meet their clients privately, including where the latter are held in custody or are deprived of their liberty.
- (Supplemented, SG No. 97/2012) During meeting, attorneys-at-law or European Union lawyers shall have the right to hand over and receive written material in relation to the case, the content of which shall not be subject to inspection.
- Conversation during meetings shall not be intercepted or recorded, however, meetings may be subject to observation.
- (Supplemented, SG No. 97/2012) During visits, attorneys-at-law shall be identified only by showing their attorney-at-law card, while European Union lawyers shall be identified by showing their attorney-at-law card or a certificate under Article 19b(3).
See above
The only distinction made is that in the course of criminal proceedings meetings between the attorney and his/her client, if the latter is in custody, could be observed by the authorities, but the conversation during such meetings could not be recorded or listened to and the documents discussed and exchanged are not subject to review by the authorities. Otherwise, any legal work product or communication between client and attorney cannot be used as evidence before court and are not subject to disclosure even if such is asked by the authorities.
There is no general guidelines for determination who is the client in the corporate structure. The authorities tend to acknowledge as client any entity within a corporate structure that has communicated with the attorney, irrespective of the fact whether it is entity exercising control within the corporate group or is a controlled entity.
There is no specific law regulating the profession of the in-house counsels in Bulgaria. The APC envisaged in the Bar Act applies only to attorneys registered with the Bar and it is not interpreted broadly. So, currently in-house counsels do not have legislative grounds to state that certain information falls under APC, unless the in-house counsel is registered with the Bar as attorney and works with the client under civil consultancy agreement and not as employee under employment agreement (which, however, shall mean that the he/she is not “in house counsel”, strictly speaking, but more of a “legal consultant” with external status).
No, unless registered with the Bar and servicing the client under civil law services agreement and not under employment agreement (whereby the common case is the in-house counsels to work for the client under employment contracts). However, such specific situation occurs rarely, as normally the professionals who wish to work as in-house counsel does not have interest to apply for the Bar and maintain status of self-employed person with all the obligations arising therefrom.
No, if they work under employment agreement (it is one of the restrictions in the Bulgarian Bar Act).
This is not specifically regulated. Normally such disclosure may occur only if requested by the client and is not subject to the assessment or discretion of the attorney.
Please see above.
Please see above.
It is not specifically regulated. However, it is not forbidden and in practice is achieved on contractual basis, which regulates the relations between the funder and the funded party.
As pointed above, this figure is not specifically regulated by Bulgarian law and is not disclosed to the court or in relevance to the court proceedings. The relations between the funded party, the funder and their attorneys are normally not in any case mentioned or directly cited in the court proceedings. Thus, there is no court practice on the matter. So, in order ACP to apply in such situations, the funder formally should also be constituted as “client” of the attorney – either through contract, issued PoA, etc. As long as the funder normally is the one paying the services of the attorney, the above should be no problem.
It is not specifically mentioned in the Bar Act, however, it is common opinion in the court practice that if the attorney is committing a crime through his actions or supporting or assisting on hiding of one, the APC does not apply and the respective documents could be disclosed/seized in the course of criminal proceedings.
Bulgarian Criminal Code and the practice thereon related to certain criminal offenses.
No specific regulation. If such information or documents fall within the general category of APC under Art. 33-34 of the Bulgarian Bar Act, then the party could abstain from its disclosure even if asked to do so by the authorities.
Please see above.
It does not.
It does – see Art. 7 of the Mediation Act. The mediation is confidential procedure and the mediator could not disclose or testify for facts and circumstances revealed to him/her by the parties unless the disclosing party has granted its explicit consent. However, the confidentiality of the mediation is not absolute and could be waived in the following cases:
- If this is necessary for the purposes of criminal proceedings or in relation to the protection of public order;
- If this is required in order to ensure the protection of the best interests of children or to prevent harm to the physical or psychological integrity of a person; or
- If disclosure of the content of the agreement resulting from mediation is necessary in order to implement or enforce that agreement.
No specific regulation. The parties could, however, make explicit reservations that any facts and statement disclosed in the course of the negotiations could not be used against them in the court and does not constitute acknowledgement of statements and claims of the counter-party, in which case the courts would dismiss as evidence any such disclosures if made in bad faith by the counter-party (if the matter escalates in court trial). Of course, such “contractual privilege” binds only the parties in the negotiations and does not bind state authorities, which could ask for disclosure.