Lex Mundi Global Attorney-Client Privilege Guide |
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Iceland |
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(Europe)
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Contributors
Ólafur Eiríksson |
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| Is the ACP recognized in your jurisdiction? | No, the ACP doctrine as it is known in common law jurisdictions is not recognized in Iceland. We however have other professional confidentiality rules that enable lawyers to withhold attorney-client communications. |
| 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... | Yes, according to Lawyers’ Act no. 17/1998 a lawyer has a duty of confidentiality in respect to any matter he is entrusted with in his work. The same applies to the employees of the lawyer. This right is also ensured in the Codex Ethicus for the Icelandic Bar Association. According to Article 6 of the code all information that a lawyer obtains professionally shall be kept away from unconcerned parties, although this is not forbidden by legally prescribed confidentiality. A lawyer shall emphasize this rule to his staff. In Article 17 it is stated that a lawyer may never, unless decided by the final ruling of a Court directed at himself or expressly provided for by statute, provide unconcerned parties with data and information concerning a Client, or a former Client, which the lawyer has received in the course of his work. Also note that according to Article 53 (2) and (3) of Act no. 91/1991 on Civil Procedures and Article 119 (2) and (3) of Criminal Procedure Act no. 88/2008 witnesses may not answer questions about personal interests of persons which they have been entrusted for as a lawyer or information on secret business, discoveries or other such work which they have come to known through their work. If the judge considers that the interests of the parties are significantly higher by being informed of the above mentioned items but the interests of the participant in maintaining secrecy, and he may then, at the request of the parties, submit to witnesses to answer a question even if permission is not granted, provided that the answer does not include an account of the personal interests of a person who is not involved. If a judge considers it uncertain whether these conditions are met, he may submit to witnesses first to express in confidence what substance their answer would be. |
| 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? |
Please note that according to Act on Criminal Procedure no. 88/2008 defense counsels shall be under a non-disclosure obligation regarding that which their clients may have confided to them about their position regarding the offence that is the subject of the case and also other matters of which they become aware of in the course of their work and which are not already public knowledge. Also note that according to the Codex Ethicus a lawyer may not promote the destruction or concealment of evidence, but he is not obliged and may not, against the client’s prohibition, provide the court with evidence and information which the client can be convicted with. |
| 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.) | We do not have such a test in Iceland. |
| 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? | Yes. In general, privileges do not apply to in-house counsel. Please see further our answer to question I A 2 regarding situations were privileges may apply to inhouse counsels as witnesses in court proceedings. |
| Civil Law Jurisdictions: May in-house counsel assert privilege or professional confidentiality? | In general, in-house counsel may not assert privilege nor professional confidentiality unless Article 53 (2) and (3) of Act no. 91/1991 on Civil Procedures applies. See further our answer to question I A 2. This is assessed on a case by case basis with regard to the communications and statue of the person in question. |
| Civil Law Jurisdictions: Is in-house counsel allowed to be active members of your jurisdiction’s bar? | Yes, in general, there is nothing in the legislation that prohibits in-house counsel to be active members of the Icelandic Bar Association. According to Article 12 of Lawyers’ Act no. 17/1998 a lawyer is obliged to have an office open to the public, a special custodian account with a recognized banking institution and a valid life insurance policy. A lawyer may apply for an exemption of the aforementioned to the Icelandic Bar Association if he holds a permanent position with a public or private body, provided that he does not provide any other service as a lawyer. |
| Is the common interest doctrine recognized in your jurisdiction? | No, not as it is known in common law jurisdictions. According to the Codex Ethicus, a lawyer may at the client’s request, provide documents, information or evidence, as the client’s clear interests require so. |
| How is the doctrine articulated in your jurisdiction? | See the answer to the above. |
| 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? | We do not have any rules that prohibit litigation funding in Iceland. Please note that Act no 91/1991 on Civil Procedure contains rules on free legal aid for individuals in certain cases, so that the cost of a court case is paid out of the state treasury. Legal aid is granted by the Ministry of the Justice. However, the Minister is bound by the opinion of an independent committee, the Legal Aid Committee, that recommends legal aid or denies legal aid depending on the circumstances in each case. |
| Have the courts in your jurisdiction addressed whether communications with litigation funders may be protected by the ACP or the work-product protection | Not applicable. |
| Is the crime-fraud exception recognized in your jurisdiction? | No, not as it is known in common law jurisdictions. Again note that according to Act on Criminal Procedure no. 88/2008 defense counsels shall be under a non-disclosure obligation regarding that which their clients may have confided to them about their position regarding the offense that is the subject of the case and also other matters of which they become aware of in the course of their work and which are not already public knowledge. |
| What statutes or key court decisions articulate the crime-fraud exception in your jurisdiction? | Not applicable. |
| 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. |
| What are the elements of the protection in your jurisdiction? | Not applicable. |
| Does your jurisdiction recognize an accountant-client privilege? | Yes, according to Act no. 94/2019 on Auditors and Auditing, auditors, employees of auditors, supervisors and anyone who undertakes work for the benefit of auditors or supervisors are bound by the obligation of confidentiality as to all that they may become aware of in the course of their work and must be kept secret in accordance with law or the nature of the case unless a judge rules that the information shall be provided in court or to the police or it is mandatory to provide the information in accordance with the law. A duty of confidentiality remains after retirement. |
| Does your jurisdiction recognize a mediation privilege? | No. |
| Does your jurisdiction recognize a settlement negotiation privilege? | No. |
Lex Mundi Global Attorney-Client Privilege Guide
No, the ACP doctrine as it is known in common law jurisdictions is not recognized in Iceland. We however have other professional confidentiality rules that enable lawyers to withhold attorney-client communications.
Yes, according to Lawyers’ Act no. 17/1998 a lawyer has a duty of confidentiality in respect to any matter he is entrusted with in his work. The same applies to the employees of the lawyer. This right is also ensured in the Codex Ethicus for the Icelandic Bar Association. According to Article 6 of the code all information that a lawyer obtains professionally shall be kept away from unconcerned parties, although this is not forbidden by legally prescribed confidentiality. A lawyer shall emphasize this rule to his staff. In Article 17 it is stated that a lawyer may never, unless decided by the final ruling of a Court directed at himself or expressly provided for by statute, provide unconcerned parties with data and information concerning a Client, or a former Client, which the lawyer has received in the course of his work.
Also note that according to Article 53 (2) and (3) of Act no. 91/1991 on Civil Procedures and Article 119 (2) and (3) of Criminal Procedure Act no. 88/2008 witnesses may not answer questions about personal interests of persons which they have been entrusted for as a lawyer or information on secret business, discoveries or other such work which they have come to known through their work. If the judge considers that the interests of the parties are significantly higher by being informed of the above mentioned items but the interests of the participant in maintaining secrecy, and he may then, at the request of the parties, submit to witnesses to answer a question even if permission is not granted, provided that the answer does not include an account of the personal interests of a person who is not involved. If a judge considers it uncertain whether these conditions are met, he may submit to witnesses first to express in confidence what substance their answer would be.
Not unless decided by the final ruling of a Court or expressly provided for by statue. See our answer above on Article 53 (2) and (3) of Act no. 91/1991 on Civil Procedures and Article 119 (2) and (3) of Criminal Procedure Act no. 88/2008.
Please note that according to Act on Criminal Procedure no. 88/2008 defense counsels shall be under a non-disclosure obligation regarding that which their clients may have confided to them about their position regarding the offence that is the subject of the case and also other matters of which they become aware of in the course of their work and which are not already public knowledge. Also note that according to the Codex Ethicus a lawyer may not promote the destruction or concealment of evidence, but he is not obliged and may not, against the client’s prohibition, provide the court with evidence and information which the client can be convicted with.
We do not have such a test in Iceland.
Yes. In general, privileges do not apply to in-house counsel. Please see further our answer to question I A 2 regarding situations were privileges may apply to inhouse counsels as witnesses in court proceedings.
In general, in-house counsel may not assert privilege nor professional confidentiality unless Article 53 (2) and (3) of Act no. 91/1991 on Civil Procedures applies. See further our answer to question I A 2. This is assessed on a case by case basis with regard to the communications and statue of the person in question.
Yes, in general, there is nothing in the legislation that prohibits in-house counsel to be active members of the Icelandic Bar Association. According to Article 12 of Lawyers’ Act no. 17/1998 a lawyer is obliged to have an office open to the public, a special custodian account with a recognized banking institution and a valid life insurance policy. A lawyer may apply for an exemption of the aforementioned to the Icelandic Bar Association if he holds a permanent position with a public or private body, provided that he does not provide any other service as a lawyer.
No, not as it is known in common law jurisdictions. According to the Codex Ethicus, a lawyer may at the client’s request, provide documents, information or evidence, as the client’s clear interests require so.
See the answer to the above.
Not applicable.
We do not have any rules that prohibit litigation funding in Iceland. Please note that Act no 91/1991 on Civil Procedure contains rules on free legal aid for individuals in certain cases, so that the cost of a court case is paid out of the state treasury. Legal aid is granted by the Ministry of the Justice. However, the Minister is bound by the opinion of an independent committee, the Legal Aid Committee, that recommends legal aid or denies legal aid depending on the circumstances in each case.
Not applicable.
No, not as it is known in common law jurisdictions. Again note that according to Act on Criminal Procedure no. 88/2008 defense counsels shall be under a non-disclosure obligation regarding that which their clients may have confided to them about their position regarding the offense that is the subject of the case and also other matters of which they become aware of in the course of their work and which are not already public knowledge.
Not applicable.
No.
Not applicable.
Yes, according to Act no. 94/2019 on Auditors and Auditing, auditors, employees of auditors, supervisors and anyone who undertakes work for the benefit of auditors or supervisors are bound by the obligation of confidentiality as to all that they may become aware of in the course of their work and must be kept secret in accordance with law or the nature of the case unless a judge rules that the information shall be provided in court or to the police or it is mandatory to provide the information in accordance with the law. A duty of confidentiality remains after retirement.
Notwithstanding the above, the Auditors Council may provide the relevant competent authorities with oversight of auditors and audit firms, with information provided that those authorities fulfill the requirements of a corresponding confidentiality obligation in their home country.
No.
No.