Under Danish law, attorneys have a general duty of confidentiality with respect to all information obtained from a client. This duty of confidentiality is a fundamental principle in the attorney-client relation and is rooted in various statutory provisions under Danish law. The key provision is section 129 of the Danish Administration Act which refers to Section 152 of the Danish Criminal Code, according to which breach of duty of confidentiality is sanctioned by fine or imprisonment for a term up until 6 months. 

The attorney-client privilege is a consequence of this duty of confidentiality. The key provision for the legal privilege is found in section 170 (1) of the Danish Administration of Justice Act which provides that attorneys cannot be required to testify against the wish of a person who is entitled to confidentiality. Section 170 (1) enforces the duty of confidentiality of attorneys by preventing them from giving evidence on communications with their clients or on information obtained in the course of representing their clients.  The scope of the duty of confidentiality is broad as it extends to any matter that has come to the attention of the attorney in the exercise of his functions, e.g. information obtained during interviews or discussions with the client. As the duty of confidentiality is owed to the client, the client has the exclusive right to waive the confidentiality.
 
The attorney-client privilege covers all information exchanged between the attorney and his client. It includes messages, documents, legal advice, notes about the client, emails, and all other correspondence between the attorney and his client. The attorney-client privilege protects written as well as electronically stored files such as electronic documents or audio files.  It further extends to sealed envelopes found at the premises of the client. In such cases, sealed envelopes emanating from the attorney may only be opened with a court warrant. Privileged documents also include a client's internal documents prepared for the purpose of external counsel from the attorney. A client's internal documents are not protected if they simply state factual information (e.g. minutes of meetings, own summary of facts, own notes from a conversation with his attorney, etc.). 

In civil proceedings, the attorney-client privilege is not absolute as the court may order attorneys to give evidence despite the duty of confidentiality, if such evidence is deemed to be essential to the outcome of the case pursuant to section 170 (2) of the Danish Administration Act. This exception is narrow as the attorney-client privilege is a fundamental principle under Danish law.  

See "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?"  for ACP in criminal proceedings. 

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The attorney-client privilege laid out in Section 170 of the Danish Administration of Justice Act applies generally under Danish law in both civil and criminal proceedings. However, in criminal proceedings, the attorney-client privilege is absolute. Thus, defense attorneys are definitively excluded from giving evidence about their clients.

Furthermore, the attorney-client privilege applies to criminal investigations prior to formal prosecution. The police may request to receive, search, or seize documents in the possession of a suspect or the suspect's attorney. Pursuant to sections 794, 795, 802 and 803 of the Danish Administration of Justice Act, the police may not search or seize written message, similar documents and correspondence between a suspect and an attorney who is excluded from giving evidence under section 170 of the Danish Administration Act. As a general principle, government authorities cannot require disclosure of attorney-client communications and legal work product during the investigative stage.

Under Danish law, the duty of confidentiality - and consequently the ACP - applies to all information obtained about a client. This is also the case when the client is a corporation. In determining the scope of the ACP in relation to corporations, Danish law emphasizes the nature and the subject matter of the information rather than making a distinction between categories of employees or levels of authority. The crucial factors are whether the information (i) relates to the client, and (ii) was imparted to the attorney in the course of his duties. All persons within the corporation can provide such information to the attorney, e.g. during interviews, email correspondence or conversations.
In practice, the attorney often communicates with members of the management, e.g. the CEO or members of the Board of Directors. Such correspondence is protected by the ACP. However, the ACP is not limited to communications between the management and the attorney. The ACP also applies to correspondence, notes, etc. from an employee of any level if the employee provides the attorney with confidential information. 

To the extent in-house counsel is - at all - subject to the attorney-client privilege, in-house counsel is expected to meet a higher burden than outside counsel as they must possess the necessary degree of independence in order to establish that privilege applies to in-house counsel's communications. 
See further below. 

As a general principle, the attorney-client privilege does not apply to in-house counsel due to their employment status. As in-house counsel is often an integral part of the company, they do not have sufficient independence to be considered an "attorney" within the meaning of section 170 of the Danish Administration of Justice Act. Hence, in-house counsel cannot assert the privilege in relation to communications and information shared between the in-house counsel and the employees or the management of the firm. In-house counsel may be able to assert legal privilege if the in-house legal team is a separate unit segregated from the rest of the company by Chinese walls, but the courts have not yet addressed this situation. 

However, in-house counsel who are members of the Danish bar must always comply with the professional duty of confidentiality which protects confidential information from being unlawfully disclosed. Normally, an employee is also subject to a duty of confidentiality embodied in the employment contract. 

Specifically for EU Competition law
The Court of Justice of the European Union (ECJ) has clarified the extent of legal privilege for in-house counsel in the context of dawn raids conducted by the Competition Authorities in a member state. In 155/79, AM&S, the CJEU held that legal privilege does not apply to in-house counsel in the EU competition context. Later, in C-550/07, Akzo Nobel/Akcros, the CJEU reconfirmed that in-house counsel' communications are not protected by legal privilege. Following this, the CJEU expressly clarified that privileged documents include: correspondence with external lawyers; internal preparatory works prepared exclusively for the purpose of seeking legal advice from an external lawyer; and internal documents which merely summarize the content of an external lawyer's advice. In-house counsel in Denmark can assert privilege within these principles of EU case law in case of an investigation conducted by the Danish Competition Authority. 

The Danish law allows in-house counsel to keep the qualification as practicing lawyers and thus be members of the Danish Bar. This allows in-house counsel to represent the company (i.e. the employer) in court and safeguard the interests of the company in legal matters. However, the access to act as attorney is restricted due to the dependency between the employer and the in-house counsel. Consequently, an in-house counsel is not permitted to act as an independent attorney to a broad client base and is only permitted to act as attorney to the company in which he/she is employed. Failure to comply herewith constitutes a breach of section 124 of the Danish Administration of Justice Act. 

No, not as a separate doctrine. However, the general duty of confidentiality provides access to share information with the consent of a client, thus allowing disclosure to a third party with common legal interests without waiving the attorney-client privilege. 

See further below.

Privileged information may only be disclosed to a third party with the consent of the client. 

The consent must be ‘informed and specific’ meaning that the client can only consent to the disclosure of specific information and not all information in general. 

Should a client wish to disclose information to a particular third party (e.g. a third party with common legal interests) while retaining the confidentiality of the information, the parties can agree to keep the information private. Such a confidentiality agreement may be written or oral, although written agreements are generally recommended for evidential purposes.  

Danish law does not operate with common interest agreements, but rather confidentiality agreements whereby the parties agree to protect and not disclose confidential information shared between them.  

There are no formality requirements as both written agreements and oral agreements are binding under Danish law. Thus, the parties are free to decide. Confidentiality agreements are normally in writing, however, Danish law does not prevent such an agreement from being concluded verbally. 
 

Danish courts have recognized third-party litigation funding as a permissible method of funding civil litigation. It is a relatively new phenomenon in Danish civil litigation and has mainly been used as a method to fund large bankruptcy claims. The use of litigation funding is expected to increase over the coming years and extend to other legal areas.

Third-party litigation funding is currently unregulated and not governed by a specific set of rules. In general, a litigation funding agreement between the party and the funder must be in accordance with Danish law, e.g. the law of contracts and the principles of Danish bankruptcy law if the funding relates to a bankruptcy case. Furthermore, the code of conduct for the Danish Bar and Law Society applies to the attorneys involved. 

Note: Contingency-fee agreements, where a lawyer funds the litigation and in return receives a percentage of the amounts awarded, are not permitted under Danish law. 

Danish courts have not yet addressed whether communications with litigation funders may be protected by the attorney-client privilege. 
 

Yes - however it is a narrow exception. Under section 152 (e) of the Danish Criminal Code, the duty of confidentiality does not apply in situations where the attorney (i) is under a statutory obligation to disclose the information, or (ii) has a justified interest in acting for the benefit of the general public or in the interest of himself or others. 
The first exception covers situations where the attorney is obliged by statute to disclose information relating to serious crimes, e.g:

• The duty to report suspicious client activity under the Danish AML Act, if the attorney has suspicion or reasonable grounds to believe that a client is involved in money laundering or terrorist financing. The report must be made to The Danish Bar and Law Society or directly to the State Prosecutor for Serious Economic and International Crimes
• The duty to report to authorities if the attorney becomes aware that his client is contemplating serious crimes against the state such as treason, terrorism or assisting an enemy for the purpose of war. 

There is limited Danish case law on exceptions to the duty of confidentiality. The case of J. Grønborg (U 2002.1315 H) is the only Supreme court decision that deals with the crime-fraud exception. In the J. Grønborg-case, the Supreme court held that compelling interests for the benefit of the general public, under certain circumstances, may overrule an attorney's duty of confidentiality.  In the Grønborg-case, the attorney - J. Grønborg - disclosed confidential information about a client likely engaged in extensive market manipulation. J. Grønborg was subsequently charged for breach of confidentiality, but the Supreme Court ruled in favor of the attorney finding that he had acted for the benefit of the general public.

The crime-fraud exception derived from section 152 (e) of the Danish Criminal Code is of narrow scope as it only applies to more serious, aggravating crimes jeopardizing public interests of the society. 

Danish law does not include one specific statute or rule that protects information obtained or prepared in anticipation of litigation from disclosure in legal proceedings. Pre-litigation documents are subject to the general duty of confidentiality and the attorney-client privilege as described in section I.A of this questionnaire. Thus, communications between a client and his attorney regarding anticipated litigation are protected from disclosure through the attorney’s general duty of confidentiality and the attorney-client privilege. 
Prior to a civil proceeding, a party may request the court to take evidence if deemed appropriable, e.g. for the purposes of determining the grounds for moving forward with a claim. Such evidence includes witness statements, expert statements, and discovery. The general principle of attorney-client privilege in section 170 of the Danish Administration Act also applies when taking evidence without a trial. Thereby, privileged documents, including pre-litigation documents, are protected from disclosure in the same manner as during a litigation process. 

Prior to a criminal proceeding, documents are protected from disclosure to the government authorities as described in Section 1.A.3 of this questionnaire. 
Furthermore, Danish law provides a certain protection to a third-party when litigation is anticipated. Section 170 (2) of the Danish Administration of Justice Act prevents a third party from giving evidence as a witness if the giving of evidence is likely to expose the witness to the penalty of law or harm his safety or welfare, e.g. if it is likely that the person giving evidence will become part in a later civil or criminal regarding the same matter. This provision protects the person in question from giving evidence and is not directly aimed at information or materials prepared in anticipation of a litigation. Such communications between an attorney and a client are subject to the general duty of confidentiality and the attorney-client privilege apply in accordance with the principles described in section 1.A of this questionnaire. 

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Under Danish law, accountants have a general duty of confidentiality expressly laid down in Section 30 of the Danish Audit Act. Subject to this duty of confidentiality, accountants may not disclose confidential matters having come to their knowledge in the course of the exercise of their functions. Breach of confidentiality is sanctioned by fine or imprisonment for up to 6 months in accordance with the Danish Criminal Code section 152.  

However, the duty of confidentiality is modified by several statutory provisions under Danish law that set forth situations where an accountant is obliged to disclose information, e.g. to the court or public authorities. 

As a general principle, accountants have an obligation to give evidence in civil as well as criminal proceedings. In contrast to attorneys, accountants are not automatically exempt from giving evidence on matters that have come to their knowledge in the executions of their functions.  Therefore, the accountant-client privilege does not apply per se. However, under section 170 (3) of the Danish Administration Act, the court may direct that no evidence is to be given about matters with respect to which the witness is subject to a statutory duty of confidentiality and the confidentiality of which is of material importance. It should be assessed in each case whether the nature of the case demands the client to be protected by confidentiality. 

Furthermore, accountants are obliged by statute to disclose information to the authorities in various other situations, e.g. if a client commits economic crimes, money laundering, or tax fraud.

Yes. The legal privilege laid out in section 170 of the Danish Administration Act also applies to court mediators. Consequently, court mediators must not be demanded to give evidence about matters having come to their knowledge in the course of the exercise of their functions, unless the court decides otherwise. The court mediator privilege is important in ensuring that the parties can disclose any relevant information to a mediator without risk of the information being used against them should the case move forward in trial.

Danish law provides access to two types of settlement procedures: in-court settlement and out-of-court settlement. In that regard, Denmark does not operate with a specific settlement negotiation privilege. However, if the parties negotiate and reach an out-of-court settlement, such an agreement will normally be subject to confidentiality from both parties. 

As a general principle, information that a party confides his attorney during a settlement negotiation is protected by the attorney's professional duty of confidentiality and the Code of Conduct for attorneys.

Pursuant to the Code of Conduct, an attorney must not inform the court of the content of a proposed settlement from an opposing party without express consent from the opposing party.  This duty of non-disclosure also applies if the parties settle their dispute by arbitration or mediation. However, it only applies to proposed settlements presented by the opposing party, and the attorney is therefore permitted to inform the court of a proposed settlement presented by his own client. 

Furthermore, rule 19 does not apply if a court exceptionally orders an attorney to give evidence under section 170 (2) of the Danish Administration of Justice Act.  
Note: In-court settlements are entered into the court records and will not be privileged in itself.