Lex Mundi Global Attorney-Client Privilege Guide |
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Cyprus |
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| (Europe) Firm Chrysostomides Advocates & Legal Consultants Updated 25 Mar 2020 | |
| Is the ACP recognized in your jurisdiction? | Yes. Rule 13 of the Advocate’s Code of Conduct provides that professional secrecy is recognized as the fundamental and primary right and obligation of advocates and must be protected by the Court and any State or public authority. Advocates must, without any time limitation, respect the secrecy of all information or evidence which has come to their knowledge in the course of their professional activity. |
| 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... | N/A |
| 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? | There is no specific Cypriot case law discussing a distinction in the application of ACP between criminal and civil proceedings. In the absence of domestic precedent, Cypriot jurisprudence to a large extent follows English and Welsh precedent due to Cyprus’s status as a former British colony. Certain public authorities are afforded statutory powers to request information from entities that they regulate. It is also possible for the Attorney General under specific circumstances to apply for, and secure a court order for the purposes of achieving the disclosure of otherwise confidential information (such as telephone communications) in furtherance of criminal proceedings. In the absence of explicit statutory protections for material covered by ACP, the only residual protection is that afforded by Rule 13 of the Advocate’s Code of Conduct which states that professional secrecy must be protected by the Courts and any state or public authority. A case involving a conflict between ACP and a public authority’s statutory power to compel information has not yet been litigated. It should be noted that rule 13 of the Advocates’ Code of Conduct provides that if a client makes an accusation against an advocate, or if the advocate faces criminal or disciplinary prosecution then he is entitled to disclose any confidential information with regards to the accusations or the case against him even if it would result in the disclosure of information provided to him in confidence by their client. We also note that the Criminal Procedure Law, CAP. 155, has been recently amended to reflect the right to silence and to non-self-incrimination (for the purposes of transposing an EU Directive), while this is considered to be also indirectly protected by the Constitution and the right to a fair trial (in view of the ECJ’s caselaw on the matter). |
| 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.) | The issue has not formed the subject of any statutory or judicial authority. It is possible that the Courts might follow Three Rivers District Council v Bank of England (No. 5) [2003] EWHC 2565 in deciding the question. It should, however, be noted that Three Rivers (No 5) considered the question of who within a corporation might be considered a client within the context of legal advice privilege and not litigation privilege; a distinction between the two types of legal professional privilege has yet to be made by the Courts in this jurisdiction. |
| 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? | This question has not been tested before the courts. In the absence of any precedent on the matter, it is not entirely clear whether the Courts in Cyprus would find that rule 13 of the Code of Conduct applies equally to in-house lawyers as it does to external counsel. Cypriot courts might choose to follow English and Welsh precedent (Three Rivers (No 5)) but the possibility of them choosing to follow more restrictive principles that apply at the EU-level precedent (such as those espoused in Akzo Nobel v European Commission (C-550/07) cannot be discounted. |
| Civil Law Jurisdictions: May in-house counsel assert privilege or professional confidentiality? | N/A – Cyprus is a Common Law jurisdiction |
| Civil Law Jurisdictions: Is in-house counsel allowed to be active members of your jurisdiction’s bar? | N/A – As above |
| Is the common interest doctrine recognized in your jurisdiction? | The issue has not previously been tried by the Courts in this jurisdiction. |
| How is the doctrine articulated in your jurisdiction? | N/A |
| Must a common interest agreement be in writing? | N/A |
| Is litigation funding permitted in your jurisdiction? Are there any professional rules in this respect? | There are no rules prohibiting litigation funding. Courts might be inclined to follow English and Welsh precedent which does not prohibit litigation funding but might prohibit the assignment of a right to litigation under the Champerty doctrine (Trendtex v Credit Suisse [1982] AC 679, Sibthorpe v Southwark London Borough Council [2011] 1 WLR 2111). |
| Have the courts in your jurisdiction addressed whether communications with litigation funders may be protected by the ACP or the work-product protection | The courts have not considered this issue. |
| Is the crime-fraud exception recognized in your jurisdiction? | There is no Cypriot case law on the Crime-Fraud exception. It is however likely that if such a set of circumstances were to arise before the Courts in Cyprus, they would find that legal privilege would not apply where the advocate-client relationship was aimed at committing or assisting the commission of an illegal act. In such cases, advocate-client communications might cease to be considered privileged and the Court may order their disclosure. We should note that there is currently draft legislation in the House of Representatives regarding the implementation of a “crime-fraud” exception in cases of organized crime or terrorism. However, as at the time of writing, the legislation has not yet been finalized and the timetable for its coming into effect is not yet clear. As set out above, rule 13 of the Advocates’ Code of Conduct provides that if a client makes an accusation against an advocate, or if the advocate faces criminal or disciplinary prosecution then he is entitled to disclose any confidential information with regards to the accusations or the case against him even if it would result in the disclosure of information provided to him in confidence by their client. |
| What statutes or key court decisions articulate the crime-fraud exception in your jurisdiction? | There is no applicable statute or court decision as regards the Crime Fraud Exception. Rule 13 of the Advocates’ Code of Conduct sets out the other exception discussed above. |
| 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 statutory protection for such material but it is likely that Courts would choose to follow English and Welsh precedent that distinguishes between legal advice privilege and litigation privilege. |
| What are the elements of the protection in your jurisdiction? | If the Courts in Cyprus followed English and Welsh law on the subject, the privilege would apply to communications to and from a client and their professional legal adviser, or third party (or between the legal adviser and third party), that take place in the context of and for the sole or dominant purpose of actual or contemplated litigation. The privilege would extend to documents that come into existence at the request of the legal advisor, or for the purpose of obtaining his advice in relation to the litigation. |
| Does your jurisdiction recognize an accountant-client privilege? | No |
| Does your jurisdiction recognize a mediation privilege? | There is no distinction between mediation and settlement negotiation privilege but the Advocates’ Code of Conduct provides that an advocate’s duty of maintaining secrecy includes the protection of confidential information arising from conversations necessary in view of reaching an agreement, even if that agreement does not later materialize. This also includes confidential information entrusted to an advocate by other advocates. |
| Does your jurisdiction recognize a settlement negotiation privilege? | See above. |
Lex Mundi Global Attorney-Client Privilege Guide
Yes. Rule 13 of the Advocate’s Code of Conduct provides that professional secrecy is recognized as the fundamental and primary right and obligation of advocates and must be protected by the Court and any State or public authority. Advocates must, without any time limitation, respect the secrecy of all information or evidence which has come to their knowledge in the course of their professional activity.
N/A
There is no specific Cypriot case law discussing a distinction in the application of ACP between criminal and civil proceedings. In the absence of domestic precedent, Cypriot jurisprudence to a large extent follows English and Welsh precedent due to Cyprus’s status as a former British colony.
Certain public authorities are afforded statutory powers to request information from entities that they regulate. It is also possible for the Attorney General under specific circumstances to apply for, and secure a court order for the purposes of achieving the disclosure of otherwise confidential information (such as telephone communications) in furtherance of criminal proceedings.
In the absence of explicit statutory protections for material covered by ACP, the only residual protection is that afforded by Rule 13 of the Advocate’s Code of Conduct which states that professional secrecy must be protected by the Courts and any state or public authority. A case involving a conflict between ACP and a public authority’s statutory power to compel information has not yet been litigated.
It should be noted that rule 13 of the Advocates’ Code of Conduct provides that if a client makes an accusation against an advocate, or if the advocate faces criminal or disciplinary prosecution then he is entitled to disclose any confidential information with regards to the accusations or the case against him even if it would result in the disclosure of information provided to him in confidence by their client.
We also note that the Criminal Procedure Law, CAP. 155, has been recently amended to reflect the right to silence and to non-self-incrimination (for the purposes of transposing an EU Directive), while this is considered to be also indirectly protected by the Constitution and the right to a fair trial (in view of the ECJ’s caselaw on the matter).
The issue has not formed the subject of any statutory or judicial authority. It is possible that the Courts might follow Three Rivers District Council v Bank of England (No. 5) [2003] EWHC 2565 in deciding the question. It should, however, be noted that Three Rivers (No 5) considered the question of who within a corporation might be considered a client within the context of legal advice privilege and not litigation privilege; a distinction between the two types of legal professional privilege has yet to be made by the Courts in this jurisdiction.
This question has not been tested before the courts. In the absence of any precedent on the matter, it is not entirely clear whether the Courts in Cyprus would find that rule 13 of the Code of Conduct applies equally to in-house lawyers as it does to external counsel. Cypriot courts might choose to follow English and Welsh precedent (Three Rivers (No 5)) but the possibility of them choosing to follow more restrictive principles that apply at the EU-level precedent (such as those espoused in Akzo Nobel v European Commission (C-550/07) cannot be discounted.
N/A – Cyprus is a Common Law jurisdiction
N/A – As above
The issue has not previously been tried by the Courts in this jurisdiction.
N/A
N/A
There are no rules prohibiting litigation funding. Courts might be inclined to follow English and Welsh precedent which does not prohibit litigation funding but might prohibit the assignment of a right to litigation under the Champerty doctrine (Trendtex v Credit Suisse [1982] AC 679, Sibthorpe v Southwark London Borough Council [2011] 1 WLR 2111).
The courts have not considered this issue.
There is no Cypriot case law on the Crime-Fraud exception. It is however likely that if such a set of circumstances were to arise before the Courts in Cyprus, they would find that legal privilege would not apply where the advocate-client relationship was aimed at committing or assisting the commission of an illegal act. In such cases, advocate-client communications might cease to be considered privileged and the Court may order their disclosure.
We should note that there is currently draft legislation in the House of Representatives regarding the implementation of a “crime-fraud” exception in cases of organized crime or terrorism. However, as at the time of writing, the legislation has not yet been finalized and the timetable for its coming into effect is not yet clear.
As set out above, rule 13 of the Advocates’ Code of Conduct provides that if a client makes an accusation against an advocate, or if the advocate faces criminal or disciplinary prosecution then he is entitled to disclose any confidential information with regards to the accusations or the case against him even if it would result in the disclosure of information provided to him in confidence by their client.
There is no applicable statute or court decision as regards the Crime Fraud Exception. Rule 13 of the Advocates’ Code of Conduct sets out the other exception discussed above.
There is no statutory protection for such material but it is likely that Courts would choose to follow English and Welsh precedent that distinguishes between legal advice privilege and litigation privilege.
If the Courts in Cyprus followed English and Welsh law on the subject, the privilege would apply to communications to and from a client and their professional legal adviser, or third party (or between the legal adviser and third party), that take place in the context of and for the sole or dominant purpose of actual or contemplated litigation. The privilege would extend to documents that come into existence at the request of the legal advisor, or for the purpose of obtaining his advice in relation to the litigation.
No
There is no distinction between mediation and settlement negotiation privilege but the Advocates’ Code of Conduct provides that an advocate’s duty of maintaining secrecy includes the protection of confidential information arising from conversations necessary in view of reaching an agreement, even if that agreement does not later materialize. This also includes confidential information entrusted to an advocate by other advocates.
See above.