Lex Mundi Global Attorney-Client Privilege Guide |
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Finland |
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| (Europe) Firm Roschier, Attorneys Ltd. Updated 24 Mar 2020 | |
| Is the ACP recognized in your jurisdiction? | Finnish law does not recognize attorney-client privilege ("ACP") as an independent legal concept. Instead, the Finnish legal system operates through legal professional confidentiality rights and obligation, which is one of the basic notions of the Finnish legal system. |
| 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... | In Finland, legal professional confidentiality is embodied in provisions of several statutes such as the Code of Judicial Procedure (4/1734), Advocates Act (496/1958) and Licensed Legal Counsel Act (715/2011). In addition, the duty of confidentiality is regulated by soft-law, and it is enforced by the Finnish Bar Association and the courts. |
| 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? | In principle, there is no distinction in applying legal professional confidentiality rules in civil and criminal proceedings. However, there are certain exceptions in relation to criminal proceedings where duty of confidentiality or prohibition to testify can be disregarded. For example, according to the Code of Judicial Procedure (4/1734), the court may oblige an attorney or a legal counsel to testify if the prosecutor has brought charges for an offense for which the maximum sentence is imprisonment for at least six years. This exception does not apply to the defendant’s counsel. In addition, the Code of Conduct of the Finnish Bar Association provides that an attorney may be released from the obligation of confidentiality to the extent it is necessary in order for the attorney to defend him-/herself against claims made against him/her. |
| 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 such test. As Finnish law does not recognize the concept of ACP, confidentiality in corporations is managed similarly to any attorney-client relationship – through duty of confidentiality. However, in-house counsel employed by a corporation cannot have the status of an attorney-at-law and hence cannot invoke the duty of confidentiality on that basis. |
| 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? | As a general rule, in-house counsel is not considered to be bound by the duty of confidentiality in a similar manner to attorneys. In-house counsel is considered to be a regular employee of a company and as such does not enjoy any special confidentiality rights or obligations. However, in-house counsel's communications within the company he/she is working for can be protected to the extent the communication contains business secrets. |
| Civil Law Jurisdictions: May in-house counsel assert privilege or professional confidentiality? | No. The communication between in-house counsel and officers, directors or employees of the company they serve are not confidential in a similar manner to communications between attorneys-at-law and their clients. Hence, unlike attorney-at-law and licensed legal counsel, an in-house counsel is not entitled to invoke a legal confidentiality right (or obligation). However, there are some general provisions that entitle in-house counsel to protect these communications in certain situations and within certain scope. For example, according to the Code of Judicial Procedure, a person may refuse to testify regarding a commercial or professional secret, unless very important reasons require such a testimony. If the in-house counsel is heard as a witness in court, in police investigations or in tax matters he or she may lawfully refuse to give evidence, which would disclose business secrets. |
| Civil Law Jurisdictions: Is in-house counsel allowed to be active members of your jurisdiction’s bar? | No. According to the rules of the Finnish Bar Association, to be eligible for membership a lawyer must be independent and must work full-time as an attorney-at-law. Hence, in-house counsel, who is employed by the company they work for, cannot be active members of the Finnish Bar. |
| Is the common interest doctrine recognized in your jurisdiction? | No. As ACP is not as such recognized under Finnish law, the Finnish legal system does not recognize the common interest doctrine either. Instead, in the regulation concerning the duty of confidentiality, the principal rule is that the client, who is protected by the obligation of professional secrecy, shall have the right to exempt a lawyer from this obligation. |
| 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? | For the purposes of this questionnaire, we understand litigation funding to cover situations where third party, excluding insurance companies, provides the financial resources to enable costly litigation or arbitration cases to proceed. Litigation funding is permitted under Finnish law, although relatively uncommon in practice. There are no specific professional rules in this respect, although attorneys-at-law who are members of the Finnish Bar Association must follow the rules on ethics at all times. |
| Have the courts in your jurisdiction addressed whether communications with litigation funders may be protected by the ACP or the work-product protection | No. The general rules of legal professional confidentiality apply. Hence, the communications between an attorney-at-law and litigation funder is protected if the attorney represents the litigation funder as a client. |
| Is the crime-fraud exception recognized in your jurisdiction? | Finnish legislation does not recognize crime-fraud exception as such. However, there are exceptions where an attorney-at-law or licensed legal counsel is relieved from the duty of confidentiality. For example, the Code of Judicial Procedure imposes an extensive limitation. According to Chapter 17, section 13 the court may oblige an attorney or a legal counsel to testify if the prosecutor has brought charges for an offense for which the maximum sentence is imprisonment for at least six years. This rule does not apply to the defendant’s counsel. Further, Chapter 17, section 15 provides that an attorney or a legal counsel may testify to the extent that presenting the information is necessary in order to provide a defense against criminal charges or other claims based on an offense, directed against him/her or against a person related to him/her, or in order to exercise his/her rights as an injured party. According to the relevant preparatory works, this provision allows an attorney to disclose confidential information only after charges are pressed against him/her – mere suspect/criminal investigation is not sufficient. In addition, the Code of Conduct of the Finnish Bar Association provides that an attorney may be released from the obligation of confidentiality to the extent it is necessary in order for the attorney to defend him-/herself against claims made against him/her. Further statutory limitations to confidentiality are included in the Finnish Act on Preventing and Clearing Money Laundering and Terrorist Financing (2008/503). |
| What statutes or key court decisions articulate the crime-fraud exception in your jurisdiction? | N/A |
| 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)?) | Yes, within the scope of the confidentiality obligation of the attorney-at-law. There is no specific work product doctrine in addition to that. According to the Code of Judicial Procedure, an attorney or a legal counsel may not disclose information or testify to what they have learned in carrying out a task related to legal proceedings or providing legal advice regarding the initiation or the avoidance of legal proceedings. This provision covers also materials prepared in anticipation of litigation or for trial. |
| What are the elements of the protection in your jurisdiction? | N/A |
| Does your jurisdiction recognize an accountant-client privilege? | No. There are certain professional rules of conduct providing for a duty of confidentiality, but accountants have no specific legal duty or right of confidentiality in legal proceedings. |
| Does your jurisdiction recognize a mediation privilege? | Finnish law does not recognize a specific mediation privilege as a general concept but operates through confidentiality obligation. According to the Act on mediation in civil matters and confirmation of settlements in general courts (394/2011), a mediator may not reveal what he/she has learned regarding the mediated matter, unless the person benefitting from the confidentiality obligation consents to disclosure, or otherwise is provided by law. The provision applies to mediation in civil matters and contested petitionary matters in general courts (court mediation). Act on Conciliation in Criminal and Certain Civil Cases (1015/2005) includes a similar confidentiality obligation with a reference to the Act on the Openness of Government Activities (621/1999) and it applies to the staff of the mediation office and other persons involved in mediation. In addition, Code of Judicial Procedure provides that a mediator (within the meaning of the acts explained above) may not testify on what he or she has learned in performing his or her functions about the case to be settled unless very important reasons require testifying, or the person in whose benefit the obligation of confidentiality has been provided consents to such testimony. |
| Does your jurisdiction recognize a settlement negotiation privilege? | Finnish law does not recognize any special negotiation privilege. However, the Code of Conduct of the Finnish Bar Association prohibits attorneys-at-law from disclosing information related to adverse party's settlement offer. The prohibition covers also information obtained during the settlement negotiations. |
Lex Mundi Global Attorney-Client Privilege Guide
Finnish law does not recognize attorney-client privilege ("ACP") as an independent legal concept. Instead, the Finnish legal system operates through legal professional confidentiality rights and obligation, which is one of the basic notions of the Finnish legal system.
In Finland, legal professional confidentiality is embodied in provisions of several statutes such as the Code of Judicial Procedure (4/1734), Advocates Act (496/1958) and Licensed Legal Counsel Act (715/2011). In addition, the duty of confidentiality is regulated by soft-law, and it is enforced by the Finnish Bar Association and the courts.
In principle, there is no distinction in applying legal professional confidentiality rules in civil and criminal proceedings. However, there are certain exceptions in relation to criminal proceedings where duty of confidentiality or prohibition to testify can be disregarded.
For example, according to the Code of Judicial Procedure (4/1734), the court may oblige an attorney or a legal counsel to testify if the prosecutor has brought charges for an offense for which the maximum sentence is imprisonment for at least six years. This exception does not apply to the defendant’s counsel.
In addition, the Code of Conduct of the Finnish Bar Association provides that an attorney may be released from the obligation of confidentiality to the extent it is necessary in order for the attorney to defend him-/herself against claims made against him/her.
There is no such test. As Finnish law does not recognize the concept of ACP, confidentiality in corporations is managed similarly to any attorney-client relationship – through duty of confidentiality. However, in-house counsel employed by a corporation cannot have the status of an attorney-at-law and hence cannot invoke the duty of confidentiality on that basis.
As a general rule, in-house counsel is not considered to be bound by the duty of confidentiality in a similar manner to attorneys. In-house counsel is considered to be a regular employee of a company and as such does not enjoy any special confidentiality rights or obligations. However, in-house counsel's communications within the company he/she is working for can be protected to the extent the communication contains business secrets.
No. The communication between in-house counsel and officers, directors or employees of the company they serve are not confidential in a similar manner to communications between attorneys-at-law and their clients. Hence, unlike attorney-at-law and licensed legal counsel, an in-house counsel is not entitled to invoke a legal confidentiality right (or obligation).
However, there are some general provisions that entitle in-house counsel to protect these communications in certain situations and within certain scope. For example, according to the Code of Judicial Procedure, a person may refuse to testify regarding a commercial or professional secret, unless very important reasons require such a testimony. If the in-house counsel is heard as a witness in court, in police investigations or in tax matters he or she may lawfully refuse to give evidence, which would disclose business secrets.
No. According to the rules of the Finnish Bar Association, to be eligible for membership a lawyer must be independent and must work full-time as an attorney-at-law. Hence, in-house counsel, who is employed by the company they work for, cannot be active members of the Finnish Bar.
No. As ACP is not as such recognized under Finnish law, the Finnish legal system does not recognize the common interest doctrine either.
Instead, in the regulation concerning the duty of confidentiality, the principal rule is that the client, who is protected by the obligation of professional secrecy, shall have the right to exempt a lawyer from this obligation.
N/A
N/A
For the purposes of this questionnaire, we understand litigation funding to cover situations where third party, excluding insurance companies, provides the financial resources to enable costly litigation or arbitration cases to proceed.
Litigation funding is permitted under Finnish law, although relatively uncommon in practice. There are no specific professional rules in this respect, although attorneys-at-law who are members of the Finnish Bar Association must follow the rules on ethics at all times.
No. The general rules of legal professional confidentiality apply. Hence, the communications between an attorney-at-law and litigation funder is protected if the attorney represents the litigation funder as a client.
Finnish legislation does not recognize crime-fraud exception as such. However, there are exceptions where an attorney-at-law or licensed legal counsel is relieved from the duty of confidentiality.
For example, the Code of Judicial Procedure imposes an extensive limitation. According to Chapter 17, section 13 the court may oblige an attorney or a legal counsel to testify if the prosecutor has brought charges for an offense for which the maximum sentence is imprisonment for at least six years. This rule does not apply to the defendant’s counsel.
Further, Chapter 17, section 15 provides that an attorney or a legal counsel may testify to the extent that presenting the information is necessary in order to provide a defense against criminal charges or other claims based on an offense, directed against him/her or against a person related to him/her, or in order to exercise his/her rights as an injured party. According to the relevant preparatory works, this provision allows an attorney to disclose confidential information only after charges are pressed against him/her – mere suspect/criminal investigation is not sufficient.
In addition, the Code of Conduct of the Finnish Bar Association provides that an attorney may be released from the obligation of confidentiality to the extent it is necessary in order for the attorney to defend him-/herself against claims made against him/her.
Further statutory limitations to confidentiality are included in the Finnish Act on Preventing and Clearing Money Laundering and Terrorist Financing (2008/503).
N/A
Yes, within the scope of the confidentiality obligation of the attorney-at-law. There is no specific work product doctrine in addition to that.
According to the Code of Judicial Procedure, an attorney or a legal counsel may not disclose information or testify to what they have learned in carrying out a task related to legal proceedings or providing legal advice regarding the initiation or the avoidance of legal proceedings. This provision covers also materials prepared in anticipation of litigation or for trial.
N/A
No. There are certain professional rules of conduct providing for a duty of confidentiality, but accountants have no specific legal duty or right of confidentiality in legal proceedings.
Finnish law does not recognize a specific mediation privilege as a general concept but operates through confidentiality obligation.
According to the Act on mediation in civil matters and confirmation of settlements in general courts (394/2011), a mediator may not reveal what he/she has learned regarding the mediated matter, unless the person benefitting from the confidentiality obligation consents to disclosure, or otherwise is provided by law. The provision applies to mediation in civil matters and contested petitionary matters in general courts (court mediation).
Act on Conciliation in Criminal and Certain Civil Cases (1015/2005) includes a similar confidentiality obligation with a reference to the Act on the Openness of Government Activities (621/1999) and it applies to the staff of the mediation office and other persons involved in mediation.
In addition, Code of Judicial Procedure provides that a mediator (within the meaning of the acts explained above) may not testify on what he or she has learned in performing his or her functions about the case to be settled unless very important reasons require testifying, or the person in whose benefit the obligation of confidentiality has been provided consents to such testimony.
Finnish law does not recognize any special negotiation privilege. However, the Code of Conduct of the Finnish Bar Association prohibits attorneys-at-law from disclosing information related to adverse party's settlement offer. The prohibition covers also information obtained during the settlement negotiations.