Most of ACP’s fundamentals are regulated under Romanian legislation governing the lawyers’ rights and obligations during their interaction with various third parties, whether individuals or state authorities, regarding the aspects pertaining to the legal assistance they provide. Mechanisms for the protection of professional confidentiality are recognized to the benefit of clients retaining Romanian lawyers. However, there is no APC all-around institution or legal doctrine, neither well-established jurisprudence and, similarly to other European countries, Romania is seeing relatively aggressive attempts by various authorities to limit the scope of protected legal assistance and protected communications.

According to Article 11 of the Law regulating the organization and exercise of the lawyers’ profession (Law no.51/1995, hereinafter, the “Law”), a lawyer is obliged to professional confidentiality as regards any aspect of a mandate entrusted to him or her, except as otherwise provided by law. Furthermore, according to Article 45 para. (6) of the Law, breach of confidentiality regarding any private information of the client, including disclosure of an operational or commercial secret which became known to the lawyer during the exercise of the legal profession, qualifies as a criminal offense carrying 1 to 5 years of imprisonment.

In line with the above, Article 317 para. (1) Item 1 of the Civil Procedure Code lists lawyers among the professionals exempted from the obligation to testify as witnesses regarding aspects that have become known to them during the exercise of their duties. Testimony is possible if the client has released the lawyer from his or her obligation of confidentiality.

Article 45 para.(3) of the Law stipulates an all-encompassing prohibition for the lawyer to testify or to provide information to any individual or authority in relation to a matter instrumented thereby other than based on the client’s express prior written consent. The Law also recognizes the inviolability of professional documents and paperwork that are in the possession or in the office of a lawyer. Under Article 34 para. (2) thereof, it is also prohibited to seize and confiscate, as part of criminal law proceedings, documents including communications between the client and the lawyer and those created by the lawyer or including the notes or other writings made by the lawyer in preparing the defense for the client. Interdiction also covers the technical supervision or taping of a lawyer’s phone calls and the interception of professional correspondence, but under very specific circumstances and in strict compliance with the procedure provided by law.

It is generally agreed that for the purposes of determining the documents, information, correspondence and phone calls under protection, the client is the person legally representing the entity that benefits from the services of the lawyer (as indicated in the legal assistance agreement) or the person empowered by such entity to seek legal services on its behalf.

The protection of the law is generally deemed to apply to the relationship between clients and external legal counsels. In-house counsels are subject to confidentiality obligations that might be deemed to restrict the obligation thereof to testify in criminal or civil proceedings. It is of note, however, European Court of Justice decision – Case C-550/07 P, Akzo Nobel Chemicals Ltd and Akcros Chemicals Ltd vs. European Commission, which found that in respect of competition-related matters communications with the in-house counsel should not be deemed privileged.

The activity of the in-house counsels does not fall under the scope of the Law and, thus, the legal provisions protecting the confidentiality of the information and documents obtained during the exercise of the lawyers’ profession are not applicable thereto. Still, in-house counsels have a duty of confidentiality under the legislation governing the exercise of their profession and, arguably, they are subject to an interdiction to testify in criminal or civil proceedings, unless consented by their employer.

The Law requires the suspension of the capacity as a member of the bar for as long as the holder thereof is acting as in-house counsel.

The common interest doctrine is not articulated under Romanian law.

If the client deems that the interests thereof would be served by the disclosure of the documents or information provided to or produced by his/her/its lawyer to anyone else, including a person having joint interests therewith, the client may offer to express written [limited] release of the lawyer from the professional confidentiality obligation incumbent thereon under the Law.

While the Romanian legislation does not regulate common interest agreements, a lawyer can only proceed to share information or documents received or produced in connection with a client’s project based on such client’s prior express written consent.

Romanian law does not directly address litigation funding rather the regime thereof results from the corroborated application of a variety of rules, including rules governing lending, the exercise of the lawyers’ profession and more.

The Statutes of the Lawyers’ Profession allows lawyers to receive hourly-based fees, fixed fees, success fees or a combination of the above. A quota litis arrangement, defined as the financial agreement pursuant to which the lawyer only receives its fee as a percentage of the outcome of litigation, is forbidden, whether such fee is to be paid in money, assets or other valuables. It is also prohibited to agree on a fee payable in the form of a percentage of the business of the client.

The Romanian legislation governing the professional confidentiality obligations of lawyers protects any and all information and documents received by the lawyer in fulfilling the mandate entrusted by the client, irrespective of the source thereof.

Romanian legislation does not specifically articulate ACP and, correspondingly, it does not provide for a crime-fraud exception thereto in a manner similar to other jurisdictions. However, the protection offered to information and documents pertaining to a client may be limited under certain circumstances that include criminal activities.

The Law includes a number of provisions that could largely be deemed to fall under the scope of a crime-fraud exception, primarily: technical supervision of the communications between the lawyer and the client can only be proceeded with in case there are indications that the lawyer is committing or preparing an offence of high risk, such as corruption, tax evasion, money laundering, terrorism, offences against national security, the financial interests of the European Union and other offenses carrying a sanction equal to or higher than 5 years of imprisonment (however, if such communications include aspects regarding the client defended by the lawyer, they cannot be used as proofs in a criminal proceedings and shall be destroyed); failure to disclose a criminal offence that a lawyer learns about while exercising professional duties is not deemed an offence, except for offenses resulting in the death of a person, genocide, offenses against humanity, war offences against persons, certain offenses provided by the law regarding the prevention and fight against terrorism. A lawyer is obliged to refrain from assisting a client for the purposes of pursuing an activity that might meet the conditions to qualify as a criminal offense and is entitled to terminate the mandate of assisting a client in activities that prove to be criminal in nature.

The Law is the primary Romanian legislation protecting from disclosure information obtained or prepared in anticipation of litigation.

According to the Law (Article 45 para.(3), the lawyer shall not testify or provide information to any individual or authority in relation to a matter instrumented thereby other than based on the client’s express prior written consent. The Law also recognizes the inviolability of professional documents and paperwork that are in the possession or in the office of a lawyer. Under Article 34 para.(2) of the Law, it is also prohibited to seize and confiscate, as part of criminal law proceedings, documents including communications between the client and the lawyer and those created by the lawyer or including the notes or other writings made by the lawyer in preparing the defense for the client. Interdiction also covers the technical supervision or taping of a lawyer’s phone calls and the interception of professional correspondence, but under very specific circumstances and in strict compliance with the procedure provided by law (Article 34 para.3 of the Law).

Romanian legislation does not include provisions defining an accountant-client privilege per se. However, professional confidentiality obligations are attached to the information and documents available to financial auditors, fiscal consultants and accountants under the statutes regulating their respective activity and the possibility of disclosure in criminal or civil proceedings is limited accordingly.

While Romanian law does not regulate a mediation privilege per se, mediators are subject to professional confidentiality obligations resulting in the limitation of their capacity to testify in criminal or civil proceedings.

The settlement negotiation privilege is not regulated under Romanian law.