	Lex Mundi Global Attorney-Client Privilege Guide
	Poland
	(Europe) Firm Wardynski & Partners Contributors Tomasz Wardynski Updated 09 Sep 2021
Is the ACP recognized in your jurisdiction?	The ACP is recognized in Polish law. The legal profession in Poland is split between advocates and attorneys-at-law. In accordance with Article 6 of the Advocates’ Profession Act 1982 and with Article 3 of the Attorneys’-at-Law Profession Act 1982, the ACP covers all the information that an advocate or an attorney-at-law obtained while providing legal services or conducting a court case.
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?	In principle, there is no distinction in applying the ACP in civil and criminal proceedings. In criminal proceedings, however, judges can release advocates or attorneys-at-law from the ACP based on Art. 180.2 od the Criminal Proceedings Code, but only: at the prosecutor’s request and if it is necessary for the welfare of the justice system and if the relevant facts cannot be established through other evidentiary measures and if the relevant facts were not provided to the advocate or the attorney-at-law while they acted as defense counsels within criminal proceedings. Government authorities may require disclosure of information and documents covered by the ACP on the basis of (i) the Act on Counteracting Money Laundering and Terrorist Financing 2018 and (ii) Chapter 11a, Part III of the Tax Ordinance Act 1997.
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.)	Under Polish law an advocate is obliged to keep in secret everything that he or she learned in connection with providing legal services, irrespective of who is the client. Moreover, the ACP cannot be waived by a client. In case of a client waiving the ACP, advocates or an attorneys-at-law are bound by the ACP insofar as the disclosure of information covered by the ACP could harm the client's interests.
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?	On the national level, Polish law does not distinguish between legal services provided by in-house and outside counsels. The same principles apply in both cases. However, this may differ in some matters involving European law. According to the jurisprudence of the Court of Justice of the European Union, the provision of in-house legal services results in a partially different assessment of the scope of the ACP. The Court of Justice opted for restriction of professional secrecy and found that intra-company correspondence with in-house lawyers is not covered by professional secrecy (CJEU judgment of 14 September 2010 in case C-550/07 P, Akzo Nobel Chemicals Ltd and Akcros Chemicals Ltd v European Commission).
Civil Law Jurisdictions: May in-house counsel assert privilege or professional confidentiality?	In-house counsel may assert privilege.
Civil Law Jurisdictions: Is in-house counsel allowed to be active members of your jurisdiction’s bar?	Yes. However only attorneys-at-law may enter into employment contracts while remaining active bar members. In that case, they have to notify the bar of the employment contract and, for the duration of the employment, they cannot act as counsels for defendants in criminal proceedings. Both advocates and attorneys-at-law may act as in-house counsels under civil law contracts while remaining active bar members.
Is the common interest doctrine recognized in your jurisdiction?	There is no such explicit doctrine. It is in the client’s discretion to whom the information covered by the ACP the client provides or instructs the counsel to provide.
How is the doctrine articulated in your jurisdiction?	There is no articulation of this doctrine. General rules of the ACP apply.
Must a common interest agreement be in writing?	There is no such regulation.
Is litigation funding permitted in your jurisdiction? Are there any professional rules in this respect?	Litigation funding is permitted in Poland. There are no professional rules governing it and general principles must be followed.
Have the courts in your jurisdiction addressed whether communications with litigation funders may be protected by the ACP or the work-product protection	There has been no jurisprudence on this subject yet, but the ACP in Polish law covers all correspondence and documents related to legal services provided by an advocate or an attorney-at-law. There are no grounds for communications with litigation funders to be excluded from the ACP’s scope.
Is the crime-fraud exception recognized in your jurisdiction?	There is no direct regulation of crime-fraud exception, but it is possible under Polish law.
What statutes or key court decisions articulate the crime-fraud exception in your jurisdiction?	Crime fraud exception can constitute a reason for the judge in criminal proceedings to release an advocate or an attorney-at-law from the ACP based on art. 180.2 of the Criminal Proceedings Code.
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)?)	This information is protected under general principles relating to the ACP. Moreover, there are additional rules for the protection of information provided to advocates or attorneys-at-law acting as defense counsel in criminal proceedings.
What are the elements of the protection in your jurisdiction?	Information provided to a defense counsel within criminal proceedings is strictly protected and the court cannot release an advocate or an attorney-at-law from their duties in this respect under any circumstances.
Does your jurisdiction recognize an accountant-client privilege?	Polish law does not recognize an accountant-client privilege. However, a tax advisor-client privilege is recognized.
Does your jurisdiction recognize a mediation privilege?	Yes, Polish law does recognize mediation privilege.
Does your jurisdiction recognize a settlement negotiation privilege?	Yes, Polish law does recognize a settlement negotiation privilege, but only if negotiations are conducted between advocates and attorneys-at-law.

Lex Mundi Global Attorney-Client Privilege Guide

Back XLS

Is the ACP recognized in your jurisdiction?

The ACP is recognized in Polish law. The legal profession in Poland is split between advocates and attorneys-at-law. In accordance with Article 6 of the Advocates’ Profession Act 1982 and with Article 3 of the Attorneys’-at-Law Profession Act 1982, the ACP covers all the information that an advocate or an attorney-at-law obtained while providing legal services or conducting a court case.

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?

In principle, there is no distinction in applying the ACP in civil and criminal proceedings. In criminal proceedings, however, judges can release advocates or attorneys-at-law from the ACP based on Art. 180.2 od the Criminal Proceedings Code, but only:

at the prosecutor’s request and
if it is necessary for the welfare of the justice system and
if the relevant facts cannot be established through other evidentiary measures and
if the relevant facts were not provided to the advocate or the attorney-at-law while they acted as defense counsels within criminal proceedings. Government authorities may require disclosure of information and documents covered by the ACP on the basis of (i) the Act on Counteracting Money Laundering and Terrorist Financing 2018 and (ii) Chapter 11a, Part III of the Tax Ordinance Act 1997.

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.)

Under Polish law an advocate is obliged to keep in secret everything that he or she learned in connection with providing legal services, irrespective of who is the client. Moreover, the ACP cannot be waived by a client. In case of a client waiving the ACP, advocates or an attorneys-at-law are bound by the ACP insofar as the disclosure of information covered by the ACP could harm the client's interests.

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?

On the national level, Polish law does not distinguish between legal services provided by in-house and outside counsels. The same principles apply in both cases.

However, this may differ in some matters involving European law. According to the jurisprudence of the Court of Justice of the European Union, the provision of in-house legal services results in a partially different assessment of the scope of the ACP. The Court of Justice opted for restriction of professional secrecy and found that intra-company correspondence with in-house lawyers is not covered by professional secrecy (CJEU judgment of 14 September 2010 in case C-550/07 P, Akzo Nobel Chemicals Ltd and Akcros Chemicals Ltd v European Commission).

Civil Law Jurisdictions: May in-house counsel assert privilege or professional confidentiality?

In-house counsel may assert privilege.

Civil Law Jurisdictions: Is in-house counsel allowed to be active members of your jurisdiction’s bar?

Yes. However only attorneys-at-law may enter into employment contracts while remaining active bar members. In that case, they have to notify the bar of the employment contract and, for the duration of the employment, they cannot act as counsels for defendants in criminal proceedings. Both advocates and attorneys-at-law may act as in-house counsels under civil law contracts while remaining active bar members.

Is the common interest doctrine recognized in your jurisdiction?

There is no such explicit doctrine. It is in the client’s discretion to whom the information covered by the ACP the client provides or instructs the counsel to provide.

How is the doctrine articulated in your jurisdiction?

There is no articulation of this doctrine. General rules of the ACP apply.

Must a common interest agreement be in writing?

There is no such regulation.

Is litigation funding permitted in your jurisdiction? Are there any professional rules in this respect?

Litigation funding is permitted in Poland. There are no professional rules governing it and general principles must be followed.

Have the courts in your jurisdiction addressed whether communications with litigation funders may be protected by the ACP or the work-product protection

There has been no jurisprudence on this subject yet, but the ACP in Polish law covers all correspondence and documents related to legal services provided by an advocate or an attorney-at-law. There are no grounds for communications with litigation funders to be excluded from the ACP’s scope.

Is the crime-fraud exception recognized in your jurisdiction?

There is no direct regulation of crime-fraud exception, but it is possible under Polish law.

What statutes or key court decisions articulate the crime-fraud exception in your jurisdiction?

Crime fraud exception can constitute a reason for the judge in criminal proceedings to release an advocate or an attorney-at-law from the ACP based on art. 180.2 of the Criminal Proceedings Code.

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)?)

This information is protected under general principles relating to the ACP. Moreover, there are additional rules for the protection of information provided to advocates or attorneys-at-law acting as defense counsel in criminal proceedings.

What are the elements of the protection in your jurisdiction?

Information provided to a defense counsel within criminal proceedings is strictly protected and the court cannot release an advocate or an attorney-at-law from their duties in this respect under any circumstances.

Does your jurisdiction recognize an accountant-client privilege?

Polish law does not recognize an accountant-client privilege. However, a tax advisor-client privilege is recognized.

Does your jurisdiction recognize a mediation privilege?

Yes, Polish law does recognize mediation privilege.

Does your jurisdiction recognize a settlement negotiation privilege?

Yes, Polish law does recognize a settlement negotiation privilege, but only if negotiations are conducted between advocates and attorneys-at-law.

Lex Mundi Global Attorney-Client Privilege Guide

Poland

Lex Mundi Global Attorney-Client Privilege Guide

Poland

Members