	Lex Mundi Global Attorney-Client Privilege Guide
	Portugal
	(Europe) Firm Morais Leitão, Galvão Teles, Soares Da Silva & Associados Contributors Ricardo Ferreira Francisco Da Câmara Updated 25 Mar 2020
Is the ACP recognized in your jurisdiction?	Yes. Pursuant to Article 92 of the Statute of the Portuguese Bar Association, approved by Law No. 145/2015 of 9 September (“SPBA”, which establishes the professional ethics rules for lawyers), the Portuguese legal system binds lawyers to the ACP. Any lawyer exercising his or her professional duties is bound to professional secrecy with regard to all facts which come to his or her knowledge within the performance of the services. Notably, the ACP encompasses: facts relating to professional matters known exclusively by disclosure of the client or disclosed on the client’s instructions; facts of which the lawyer has become aware due to a position held in the Bar Association; facts relating to professional matters communicated by another lawyer with whom he or she is associated or with whom he or she cooperates; facts communicated by a co-claimant, co-defendant or co-interested party of his or her client or respective representative; facts which the opposing party of the client or its representatives have made known to the lawyer during negotiations for an agreement aimed at terminating a dispute or litigation; facts of which the lawyer has become aware in the course of any unsuccessful negotiations, oral or written, in which he or she has intervened.
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...	As stated above, the ACP is recognized in the Portuguese jurisdiction.
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?	Pursuant to Article 92 of the SPBA, acts committed by a lawyer in breach of the ACP cannot serve as proof in court, both in civil and criminal proceedings. Accordingly, in both of these proceedings, a lawyer may refuse cooperation with the court on the grounds that such cooperation may lead to a breach of the ACP. Notwithstanding, a lawyer can, under certain exceptional circumstances and following a special authorization from the Portuguese Bar Association, disclose facts protected by legal privilege for the purposes of defending the dignity, rights and legitimate interests of the lawyer himself or of the client or its representatives. Moreover, in certain circumstances, lawyers may also be ordered by a court (in both civil and criminal proceedings) to disclose information covered by professional secrecy rules. If there are well-founded doubts as to the legitimacy of the refusal by the lawyer to testify on the grounds of breach of the ACP, the judicial authority before which the incident has arisen will make the necessary inquiries and, if it concludes that the refusal is unlawful, it shall order the deposition. The Portuguese Criminal Procedure Code further contains certain specific provisions in order to protect attorney-client communications: Down-raids and seizures taking place in a lawyer's office must, under penalty of nullity, be presided personally by a judge, who gives prior notice to the president of the local council of the Bar Association so that he or she, or a delegate, can be present. Seizure and any other form of control of correspondence between the client and the lawyer is prohibited, unless the judge has reasonable grounds to believe that it constitutes an object or an element of a crime. Seizure, in a lawyers’ office, of documents covered by professional secrecy is not permitted, except where the documents themselves constitute the object or element of a crime. The interception and recording of conversations or communications between the lawyer and the client are prohibited unless the judge has reasonable grounds to believe that they constitute an object or element of a crime.
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.)	Pursuant to the SPBA, the client-attorney privilege covers all the facts that the attorney has gained knowledge of through officers, directors or employees of the company for the purpose of professional matters and within the scope of the legal services provided by the attorney.
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?	Pursuant to the SPBA, the ACP is applicable to in-house counsel that are members of the Portuguese Bar Association. Consequently, all the facts that officers, directors or employees disclose to the company`s in-house counsel during the exercise of his or her professional duties are under the protection of Article 92 of the SPBA.
Civil Law Jurisdictions: May in-house counsel assert privilege or professional confidentiality?	Yes, the ACP is applicable to in-house counsel that are members of the Portuguese Bar Association.
Civil Law Jurisdictions: Is in-house counsel allowed to be active members of your jurisdiction’s bar?	Yes. The SPBA does not contain any limitation on the possibility of in-house counsel being active members of the Portuguese Bar Association, provided he or she is registered as a lawyer.
Is the common interest doctrine recognized in your jurisdiction?	The Common Interest Doctrine is not recognized under Portuguese law.
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?	Although it is not prohibited, there is no specific regulation of third-party funding in the Portuguese legal system. Nevertheless, disclosure of information by the attorney representing the entity receiving the funding to the third-party funder is subject to the rules set forth in Article 92 of the SPBA, already described above.
Have the courts in your jurisdiction addressed whether communications with litigation funders may be protected by the ACP or the work-product protection	To the best of our knowledge, there is no Portuguese case law addressing third-party funding applied to litigation cases.
Is the crime-fraud exception recognized in your jurisdiction?	Regarding specifically the crime-fraud exception, i.e., the inexistence of privilege in documents or communications that are themselves part of a crime or a fraud, or that seek or give legal advice about how to facilitate the commission of a crime or a fraud, please note that, under the SPBA, the commission of criminal offenses by the attorney himself or herself can never be considered as committed in the exercise of the professional duties of the attorney. In fact, such actions would constitute a breach of the deontological duty to act in the defense of the legitimate interests of the client within legal and ethical standards, also foreseen in the SPBA. Therefore, not only is this not the purpose and scope of professional secrecy but also such actions by the attorney would breach many other ethical duties to which he or she is bound. As such, the ACP cannot be invoked in order to cover up the possible commission of illegal acts, of a criminal nature, by the attorney himself or herself, since said acts are excluded from the scope of protection of the ACP.
What statutes or key court decisions articulate the crime-fraud exception in your jurisdiction?	The conclusion stated above arises from the duties foreseen in the SPBA. Additionally, the specific situation of crime-fraud exception was considered by the Lisbon Court of Appeal in 2017, in case no. 1130/14.7TDLSB-C.L1-9. In the decision in this case, the Court concluded that an illegal act committed by an attorney in the context of his relationship with the client infringed several duties which the attorneys are bound to. One of those duties is to exercise his activity within the limits of the law and not to use illegal means and not to harm the correct application of the law or the discovery of the truth. Therefore, such actions could never be included within the scope of the attorney’s professional duties and, as such, they could never be covered by the ACP.
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. Pursuant to Article 92(2) of the SPBA, the ACP must be observed whether or not the legal service requested from or entrusted to the lawyer involves judicial or extrajudicial representation, whether or not it should be remunerated and whether or not the lawyer has accepted and performed the representation or service. Additionally, Article 92(3) of the SPBA extends the ACP to any documents or other material that, directly or indirectly, relate to the facts under secrecy.
What are the elements of the protection in your jurisdiction?	As stated in the previous answer, the lawyer’s work product is covered by litigation privilege and, as a general rule, cannot be accepted as evidence in legal proceedings.
Does your jurisdiction recognize an accountant-client privilege?	Yes. Both the Statute of the Certified Accountants Association and the Code of Ethics for Certified Accountants (approved by Law no. 139/2015, of 7 September, as amended by Law no. 119/2019, of 18 September) bind the certified accountants to professional secrecy with regard to facts and documents which come to their knowledge, directly or indirectly, in the performance of their duties. Therefore, the provisions in the Portuguese Criminal Procedure Code and Civil Procedure Code regarding the protection of professional confidentiality are also applicable to certified accountants.
Does your jurisdiction recognize a mediation privilege?	Pursuant to the Legal Framework of the Civil and Commercial Mediation (approved by Law no. 29/2013, of 19 April), the mediation procedure is of a confidential nature to all involved, including the lawyers, and the content of the mediation sessions cannot be assessed in court or in arbitration. The only exceptions are (i) public policy considerations, in particular, to ensure the protection of the best interests of the child (if applicable), (ii) where the protection of the physical or psychological integrity of any person is at stake, or (iii) where the breach of the confidentiality is necessary for the purpose of applying or enforcing the agreement reached through mediation, to the strictest extent necessary for the protection of these interests.
Does your jurisdiction recognize a settlement negotiation privilege?	Yes. As mentioned in response to the first question above, pursuant to the SPBA, the ACP also encompasses facts which the opposing party of the client or its representatives have made known to the lawyer during negotiations for an agreement aimed at terminating a dispute or litigation, as well as facts of which the lawyer has become aware in the course of any unsuccessful negotiations, oral or written, in which he or she has intervened.

Lex Mundi Global Attorney-Client Privilege Guide

Back XLS

Is the ACP recognized in your jurisdiction?

Yes. Pursuant to Article 92 of the Statute of the Portuguese Bar Association, approved by Law No. 145/2015 of 9 September (“SPBA”, which establishes the professional ethics rules for lawyers), the Portuguese legal system binds lawyers to the ACP. Any lawyer exercising his or her professional duties is bound to professional secrecy with regard to all facts which come to his or her knowledge within the performance of the services.
Notably, the ACP encompasses:

facts relating to professional matters known exclusively by disclosure of the client or disclosed on the client’s instructions;
facts of which the lawyer has become aware due to a position held in the Bar Association;
facts relating to professional matters communicated by another lawyer with whom he or she is associated or with whom he or she cooperates;
facts communicated by a co-claimant, co-defendant or co-interested party of his or her client or respective representative;
facts which the opposing party of the client or its representatives have made known to the lawyer during negotiations for an agreement aimed at terminating a dispute or litigation;
facts of which the lawyer has become aware in the course of any unsuccessful negotiations, oral or written, in which he or she has intervened.

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...

As stated above, the ACP is recognized in the Portuguese jurisdiction.

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?

Pursuant to Article 92 of the SPBA, acts committed by a lawyer in breach of the ACP cannot serve as proof in court, both in civil and criminal proceedings. Accordingly, in both of these proceedings, a lawyer may refuse cooperation with the court on the grounds that such cooperation may lead to a breach of the ACP.

Notwithstanding, a lawyer can, under certain exceptional circumstances and following a special authorization from the Portuguese Bar Association, disclose facts protected by legal privilege for the purposes of defending the dignity, rights and legitimate interests of the lawyer himself or of the client or its representatives.

Moreover, in certain circumstances, lawyers may also be ordered by a court (in both civil and criminal proceedings) to disclose information covered by professional secrecy rules. If there are well-founded doubts as to the legitimacy of the refusal by the lawyer to testify on the grounds of breach of the ACP, the judicial authority before which the incident has arisen will make the necessary inquiries and, if it concludes that the refusal is unlawful, it shall order the deposition.

The Portuguese Criminal Procedure Code further contains certain specific provisions in order to protect attorney-client communications:

Down-raids and seizures taking place in a lawyer's office must, under penalty of nullity, be presided personally by a judge, who gives prior notice to the president of the local council of the Bar Association so that he or she, or a delegate, can be present.
Seizure and any other form of control of correspondence between the client and the lawyer is prohibited, unless the judge has reasonable grounds to believe that it constitutes an object or an element of a crime.
Seizure, in a lawyers’ office, of documents covered by professional secrecy is not permitted, except where the documents themselves constitute the object or element of a crime.
The interception and recording of conversations or communications between the lawyer and the client are prohibited unless the judge has reasonable grounds to believe that they constitute an object or element of a crime.

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.)

Pursuant to the SPBA, the client-attorney privilege covers all the facts that the attorney has gained knowledge of through officers, directors or employees of the company for the purpose of professional matters and within the scope of the legal services provided by the attorney.

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?

Pursuant to the SPBA, the ACP is applicable to in-house counsel that are members of the Portuguese Bar Association. Consequently, all the facts that officers, directors or employees disclose to the company`s in-house counsel during the exercise of his or her professional duties are under the protection of Article 92 of the SPBA.

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

Yes, the ACP is applicable to in-house counsel that are members of the Portuguese Bar Association.

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

Yes. The SPBA does not contain any limitation on the possibility of in-house counsel being active members of the Portuguese Bar Association, provided he or she is registered as a lawyer.

Is the common interest doctrine recognized in your jurisdiction?

The Common Interest Doctrine is not recognized under Portuguese law.

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?

Although it is not prohibited, there is no specific regulation of third-party funding in the Portuguese legal system. Nevertheless, disclosure of information by the attorney representing the entity receiving the funding to the third-party funder is subject to the rules set forth in Article 92 of the SPBA, already described above.

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

To the best of our knowledge, there is no Portuguese case law addressing third-party funding applied to litigation cases.

Is the crime-fraud exception recognized in your jurisdiction?

Regarding specifically the crime-fraud exception, i.e., the inexistence of privilege in documents or communications that are themselves part of a crime or a fraud, or that seek or give legal advice about how to facilitate the commission of a crime or a fraud, please note that, under the SPBA, the commission of criminal offenses by the attorney himself or herself can never be considered as committed in the exercise of the professional duties of the attorney. In fact, such actions would constitute a breach of the deontological duty to act in the defense of the legitimate interests of the client within legal and ethical standards, also foreseen in the SPBA. Therefore, not only is this not the purpose and scope of professional secrecy but also such actions by the attorney would breach many other ethical duties to which he or she is bound.

As such, the ACP cannot be invoked in order to cover up the possible commission of illegal acts, of a criminal nature, by the attorney himself or herself, since said acts are excluded from the scope of protection of the ACP.

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

The conclusion stated above arises from the duties foreseen in the SPBA.

Additionally, the specific situation of crime-fraud exception was considered by the Lisbon Court of Appeal in 2017, in case no. 1130/14.7TDLSB-C.L1-9. In the decision in this case, the Court concluded that an illegal act committed by an attorney in the context of his relationship with the client infringed several duties which the attorneys are bound to. One of those duties is to exercise his activity within the limits of the law and not to use illegal means and not to harm the correct application of the law or the discovery of the truth. Therefore, such actions could never be included within the scope of the attorney’s professional duties and, as such, they could never be covered by the ACP.

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. Pursuant to Article 92(2) of the SPBA, the ACP must be observed whether or not the legal service requested from or entrusted to the lawyer involves judicial or extrajudicial representation, whether or not it should be remunerated and whether or not the lawyer has accepted and performed the representation or service.

Additionally, Article 92(3) of the SPBA extends the ACP to any documents or other material that, directly or indirectly, relate to the facts under secrecy.

What are the elements of the protection in your jurisdiction?

As stated in the previous answer, the lawyer’s work product is covered by litigation privilege and, as a general rule, cannot be accepted as evidence in legal proceedings.

Does your jurisdiction recognize an accountant-client privilege?

Yes. Both the Statute of the Certified Accountants Association and the Code of Ethics for Certified Accountants (approved by Law no. 139/2015, of 7 September, as amended by Law no. 119/2019, of 18 September) bind the certified accountants to professional secrecy with regard to facts and documents which come to their knowledge, directly or indirectly, in the performance of their duties.

Therefore, the provisions in the Portuguese Criminal Procedure Code and Civil Procedure Code regarding the protection of professional confidentiality are also applicable to certified accountants.

Does your jurisdiction recognize a mediation privilege?

Pursuant to the Legal Framework of the Civil and Commercial Mediation (approved by Law no. 29/2013, of 19 April), the mediation procedure is of a confidential nature to all involved, including the lawyers, and the content of the mediation sessions cannot be assessed in court or in arbitration. The only exceptions are (i) public policy considerations, in particular, to ensure the protection of the best interests of the child (if applicable), (ii) where the protection of the physical or psychological integrity of any person is at stake, or (iii) where the breach of the confidentiality is necessary for the purpose of applying or enforcing the agreement reached through mediation, to the strictest extent necessary for the protection of these interests.

Does your jurisdiction recognize a settlement negotiation privilege?

Yes. As mentioned in response to the first question above, pursuant to the SPBA, the ACP also encompasses facts which the opposing party of the client or its representatives have made known to the lawyer during negotiations for an agreement aimed at terminating a dispute or litigation, as well as facts of which the lawyer has become aware in the course of any unsuccessful negotiations, oral or written, in which he or she has intervened.

Lex Mundi Global Attorney-Client Privilege Guide

Portugal

Lex Mundi Global Attorney-Client Privilege Guide

Portugal

Members