Lex Mundi Global Attorney-Client Privilege Guide |
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Serbia |
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| (Europe) Firm JPM & Partners Updated 13 Aug 2021 | |
| Is the ACP recognized in your jurisdiction? | Yes, the ACP is recognized and legislatively set in Article 20 of the Law on Advocacy, in Article 251 of the Statute of the Bar Association and in Articles 14 to 16 of the Code of Professional Ethics of Lawyers. |
| 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... | Please refer to our response to "Is the ACP recognized in your 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? | ACP is present both in civil and criminal proceedings, only distinction is defined in Articles 69 and 71 of the Code of Criminal Procedure. If the client is in custody, meetings between the attorney and client could be observed and recorded, but without sound, all conversations during such meetings could not be listened to or recorded and all documents discussed in those meetings are not subject to review. Legal work products or communication between client and attorney cannot be used as evidence before the court. |
| 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 specific test being applied under Serbian law, but any entity within a corporate structure that has communicated with the attorney is covered by ACP. |
| 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? | No. Serbian law does not recognize in-house counsels as attorneys at law and members of the bar. Attorneys at law could be hired for the needs of the client as external counsel, but not as employed in-house counsels. |
| Civil Law Jurisdictions: May in-house counsel assert privilege or professional confidentiality? | See response to "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?". |
| Civil Law Jurisdictions: Is in-house counsel allowed to be active members of your jurisdiction’s bar? | According to Article 6 Paragraph 1 of the Law on Advocacy, a lawyer could not be permanently employed. The employed person cannot become a lawyer, and if he/she enters into employment, he/she will be deleted from the Bar's list of lawyers. |
| Is the common interest doctrine recognized in your jurisdiction? | The relationship between the lawyer and the client is strict and exclusive, disclosure is possible only under the conditions prescribed by law, in this case with the consent of the client. |
| How is the doctrine articulated in your jurisdiction? | See response to "Is the common interest doctrine recognized in your jurisdiction?". |
| Must a common interest agreement be in writing? | See response to "Is the common interest doctrine recognized in your jurisdiction?". |
| Is litigation funding permitted in your jurisdiction? Are there any professional rules in this respect? | Litigation funding is not regulated by Serbian law, but it is not prohibited. |
| Have the courts in your jurisdiction addressed whether communications with litigation funders may be protected by the ACP or the work-product protection | See response to "Is litigation funding permitted in your jurisdiction? Are there any professional rules in this respect?". |
| Is the crime-fraud exception recognized in your jurisdiction? | The lawyer is obliged to inform the authorities if he has information about a crime that will be committed in the future and that has significant social danger or when he uses that information to defend himself in court proceedings. |
| What statutes or key court decisions articulate the crime-fraud exception in your jurisdiction? | It is regulated by the following: Law on advocacy and Code of Professional Ethics of Lawyers. |
| 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)?) | All information that the lawyer receives from the moment of obtaining the power of attorney falls under the ACP. As such, information obtained or prepared in anticipation of litigation falls within the general rule. |
| What are the elements of the protection in your jurisdiction? | As mentioned above, power of attorney represents the key element of protection in Serbian jurisdiction, as the moment of signing power of attorney represents the moment of commencement of the ACP protection. |
| Does your jurisdiction recognize an accountant-client privilege? | Serbian law does not recognize accountant-client privilege, but in any case, there is a general obligation to keep matters related to business a secret, which may be agreed upon in the contractual relationship. |
| Does your jurisdiction recognize a mediation privilege? | Law on mediation states that all Information, suggestions and statements related to the mediation procedure are secret, except those that must be disclosed in accordance with the law or for the purpose of applying or enforcing a settlement agreement, as and when the public interest so requires. |
| Does your jurisdiction recognize a settlement negotiation privilege? | Serbian law does not recognize this as a rule, but it can be agreed upon between the parties that participate in the negotiations. |
Lex Mundi Global Attorney-Client Privilege Guide
Yes, the ACP is recognized and legislatively set in Article 20 of the Law on Advocacy, in Article 251 of the Statute of the Bar Association and in Articles 14 to 16 of the Code of Professional Ethics of Lawyers.
Please refer to our response to "Is the ACP recognized in your jurisdiction?".
ACP is present both in civil and criminal proceedings, only distinction is defined in Articles 69 and 71 of the Code of Criminal Procedure. If the client is in custody, meetings between the attorney and client could be observed and recorded, but without sound, all conversations during such meetings could not be listened to or recorded and all documents discussed in those meetings are not subject to review. Legal work products or communication between client and attorney cannot be used as evidence before the court.
There is no specific test being applied under Serbian law, but any entity within a corporate structure that has communicated with the attorney is covered by ACP.
No. Serbian law does not recognize in-house counsels as attorneys at law and members of the bar. Attorneys at law could be hired for the needs of the client as external counsel, but not as employed in-house counsels.
See response to "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?".
According to Article 6 Paragraph 1 of the Law on Advocacy, a lawyer could not be permanently employed. The employed person cannot become a lawyer, and if he/she enters into employment, he/she will be deleted from the Bar's list of lawyers.
The relationship between the lawyer and the client is strict and exclusive, disclosure is possible only under the conditions prescribed by law, in this case with the consent of the client.
See response to "Is the common interest doctrine recognized in your jurisdiction?".
See response to "Is the common interest doctrine recognized in your jurisdiction?".
Litigation funding is not regulated by Serbian law, but it is not prohibited.
See response to "Is litigation funding permitted in your jurisdiction? Are there any professional rules in this respect?".
The lawyer is obliged to inform the authorities if he has information about a crime that will be committed in the future and that has significant social danger or when he uses that information to defend himself in court proceedings.
It is regulated by the following: Law on advocacy and Code of Professional Ethics of Lawyers.
All information that the lawyer receives from the moment of obtaining the power of attorney falls under the ACP. As such, information obtained or prepared in anticipation of litigation falls within the general rule.
As mentioned above, power of attorney represents the key element of protection in Serbian jurisdiction, as the moment of signing power of attorney represents the moment of commencement of the ACP protection.
Serbian law does not recognize accountant-client privilege, but in any case, there is a general obligation to keep matters related to business a secret, which may be agreed upon in the contractual relationship.
Law on mediation states that all Information, suggestions and statements related to the mediation procedure are secret, except those that must be disclosed in accordance with the law or for the purpose of applying or enforcing a settlement agreement, as and when the public interest so requires.
Serbian law does not recognize this as a rule, but it can be agreed upon between the parties that participate in the negotiations.