Lex Mundi Global Attorney-Client Privilege Guide |
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Estonia |
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(Europe)
Firm
COBALT Law Firm
Contributors
Martin Simovart |
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| Is the ACP recognized in your jurisdiction? | Yes |
| 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... | Not applicable. |
| 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? | No distinction is made between civil and criminal proceedings in that respect. As a general rule, according to the Estonian Bar Association Act, all data carriers related to the provision of legal services by an attorney are privileged, but the Code of Criminal Procedure (“CCP”) permits searching a law firm on the condition that the search is conducted in the presence of the attorney whose law firm is being searched, or if the attorney cannot be present at the search, a different attorney providing legal services through the same law firm, or if this is impossible, another attorney. The CCP also permits the confiscation of confidential documents relating to ACP. In current practice, it is accepted that such proceedings are permitted in the case of substantial public interest, such as the purpose of detection of a crime. An attorney may also be required to disclose attorney-client communications to the Estonian Financial Intelligence Unit in case of suspicion of money laundering and terrorist financing. |
| 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 specific test to determine who within a corporation is considered the client for the purposes of the ACP. The client for the purposes of the ACP is the natural/legal person mentioned as the client in the client agreement. Therefore, if the client under the client agreement is a legal person, then that legal person is also the client for the purposes of the ACP – not the natural persons representing that client. If the person who engaged the attorney and concluded the client agreement differs from the person named as the client and receiving the legal services under that agreement (i.e. if the attorney has been engaged for the benefit of another person), the attorney is obliged to act in the best interest of the recipient of the legal services, not the person who concluded the agreement. |
| 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. |
| Civil Law Jurisdictions: May in-house counsel assert privilege or professional confidentiality? | No. |
| Civil Law Jurisdictions: Is in-house counsel allowed to be active members of your jurisdiction’s bar? | No. |
| Is the common interest doctrine recognized in your jurisdiction? | No. |
| 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 is not regulated and is also uncommon in Estonia. Recently there have been signs of interest in providing a platform for bringing together persons with potential claims and interested investors, but these initiatives have not yet resulted in enough practice that would enable us to comment on the corresponding professional rules. As regards situations, where one person is paying for legal services received by another, please see our response to question B.1 above. |
| Have the courts in your jurisdiction addressed whether communications with litigation funders may be protected by the ACP or the work-product protection | No. |
| Is the crime-fraud exception recognized in your jurisdiction? | Yes. |
| What statutes or key court decisions articulate the crime-fraud exception in your jurisdiction? | The crime-fraud exception is regulated by the Estonian Bar Association Act. It states that to prevent a criminal offense of the first degree, an attorney has the right to submit a reasoned written application to the chairman of the administrative court, or to an administrative judge of the same court appointed by the chairman of the same court, requesting that the ACP be revoked. |
| 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 institute of discovery in Estonian civil court proceedings that would be similar to discovery in the U.S. civil court proceedings. Therefore, general principles of confidentiality and privilege apply. |
| What are the elements of the protection in your jurisdiction? | Not applicable. |
| Does your jurisdiction recognize an accountant-client privilege? | No. Estonian law recognizes auditors’ professional confidentiality obligation, but auditors can be ordered to reveal such information in various circumstances, incl. to court based on a court order or to an investigator in criminal proceedings. |
| Does your jurisdiction recognize a mediation privilege? | Yes. |
| Does your jurisdiction recognize a settlement negotiation privilege? | No. |
Lex Mundi Global Attorney-Client Privilege Guide
Yes
Not applicable.
No distinction is made between civil and criminal proceedings in that respect.
As a general rule, according to the Estonian Bar Association Act, all data carriers related to the provision of legal services by an attorney are privileged, but the Code of Criminal Procedure (“CCP”) permits searching a law firm on the condition that the search is conducted in the presence of the attorney whose law firm is being searched, or if the attorney cannot be present at the search, a different attorney providing legal services through the same law firm, or if this is impossible, another attorney. The CCP also permits the confiscation of confidential documents relating to ACP. In current practice, it is accepted that such proceedings are permitted in the case of substantial public interest, such as the purpose of detection of a crime.
An attorney may also be required to disclose attorney-client communications to the Estonian Financial Intelligence Unit in case of suspicion of money laundering and terrorist financing.
There is no specific test to determine who within a corporation is considered the client for the purposes of the ACP. The client for the purposes of the ACP is the natural/legal person mentioned as the client in the client agreement. Therefore, if the client under the client agreement is a legal person, then that legal person is also the client for the purposes of the ACP – not the natural persons representing that client.
If the person who engaged the attorney and concluded the client agreement differs from the person named as the client and receiving the legal services under that agreement (i.e. if the attorney has been engaged for the benefit of another person), the attorney is obliged to act in the best interest of the recipient of the legal services, not the person who concluded the agreement.
Not applicable.
No.
No.
No.
Not applicable.
Not applicable.
Litigation funding is not regulated and is also uncommon in Estonia. Recently there have been signs of interest in providing a platform for bringing together persons with potential claims and interested investors, but these initiatives have not yet resulted in enough practice that would enable us to comment on the corresponding professional rules.
As regards situations, where one person is paying for legal services received by another, please see our response to question B.1 above.
No.
Yes.
The crime-fraud exception is regulated by the Estonian Bar Association Act. It states that to prevent a criminal offense of the first degree, an attorney has the right to submit a reasoned written application to the chairman of the administrative court, or to an administrative judge of the same court appointed by the chairman of the same court, requesting that the ACP be revoked.
There is no institute of discovery in Estonian civil court proceedings that would be similar to discovery in the U.S. civil court proceedings. Therefore, general principles of confidentiality and privilege apply.
Not applicable.
No. Estonian law recognizes auditors’ professional confidentiality obligation, but auditors can be ordered to reveal such information in various circumstances, incl. to court based on a court order or to an investigator in criminal proceedings.
Yes.
No.