Lex Mundi Global Attorney-Client Privilege Guide |
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Slovakia |
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(Europe)
Firm
Cechova & Partners
Contributors
Miroslav Zaťko |
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| Is the ACP recognized in your jurisdiction? | Yes, the ACP is recognized in Slovakia. The ACP is stipulated as a duty of confidentiality owed by attorneys to their clients and for the benefit of their clients (i.e. formally, the ACP is not regulated as a privilege of a client, but rather as a duty of confidentiality held by attorneys towards their clients). ACP is regulated mainly by Act No. 586/2003 Coll. on Advocacy, as amended, and by professional regulations issued by the Slovak Bar Association. Attorneys are obligated to keep duty of confidentiality regarding any information that they have learned in course of providing legal services or conducting their practice. The attorneys are obligated to keep the ACP also after they ceased to conduct their practice. The same duty of confidentiality applies also to attorney trainees and other employees of the attorneys or other persons if they participate in the provision of legal services. |
| 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 described in above, in Slovakia, there is a duty of confidentiality that prevents the attorneys from disclosing any information they have learned in the course of conducting their practice. Only the client may release his attorney from such a duty mandatory provided in writing only. Note: In Slovakia, there are no rules on mandatory discovery in civil proceedings and as a general rule, the parties have discretion over which information and documents they choose to disclose. In rather exceptional cases where the court imposes on a party an obligation to disclose information/documents to the other party, such disclosure must not apply to communication or work product subject to the ACP.
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| 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? | There is no major difference in rules of civil and criminal proceedings in this respect. In both, the civil as well as the criminal proceedings, there is a prohibition to interrogate a witness who would breach the duty of confidentiality stipulated by law. Such a witness may be relieved from such a duty only by the relevant authority or the person to whose benefit the duty of confidentiality is held. As regards the ACP exclusively the person to whose benefit the duty of confidentiality is held (i.e. the client) may release the attorney from the duty. On top of that the attorney is entitled to refuse any disclosure if it was to the detriment of his client. The same prohibition also applies to any documents or written files that contain information that is protected under the law. Therefore, attorney-client communications and attorney work product must not be requested neither in civil, nor criminal proceedings (please see the exception in par I.E. below). Attorneys do not have to keep the ACP in (i) the proceedings the subject of which is the dispute between them and their client as well as (ii) in a disciplinary proceedings against an attorney (for the breach of his duties) that is conducted by the disciplinary bodies of the Slovak Bar Association. |
| 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.) | The ACP applies only to the attorneys who are members of the Slovak Bar Association or their attorney trainees or their employees or other persons assisting in providing legal services. The ACP is not extended to inhouse counsels or employees of corporations. Therefore, even if a company employs an inhouse counsel as an employee whose task is to provide legal advice to the company, no client-attorney relationship arises between such corporation and its inhouse counsel and the ACP will not apply to such a case. |
| 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? | N/A |
| Civil Law Jurisdictions: May in-house counsel assert privilege or professional confidentiality? | No, the ACP does not apply to the in-house counsels. There are also no specific rules on the professional confidentiality of the in-house counsels. Therefore, the in-house counsels may only rely on some of a more general duties of confidentiality recognized by the Slovak law, in particular:
However, none of the above duties of confidentiality is specific for in-house counsels. However, in the criminal or civil proceedings, the in-house counsels acting as statutory representatives of their company may technically refuse to provide a testimony on behalf of the company provided such testimony could lead to a criminal investigation of the company. |
| Civil Law Jurisdictions: Is in-house counsel allowed to be active members of your jurisdiction’s bar? | No, active members of the Slovak Bar (i.e. attorneys actively providing legal services) cannot be at the same time in an employment or similar work relationship. The members of the Slovak Bar may conduct their practice only in their own name and on their own behalf and not within an employment or similar relationship with a third party. |
| Is the common interest doctrine recognized in your jurisdiction? | No, there is no such separate doctrine in the Slovak law. If such a disclosure vis-à-vis third party (with common interests) is intended, a non-disclosure agreement would be recommended to be signed. |
| How is the doctrine articulated in your jurisdiction? | N/A There is no such doctrine articulated in the Slovak law. |
| Must a common interest agreement be in writing? | N/A However, if the parties wish to disclose confidential information to each other, a written non-disclosure agreement is highly recommended. |
| Is litigation funding permitted in your jurisdiction? Are there any professional rules in this respect? | There is no specific regulation in Slovakia in this respect. There are also no professional rules on litigation funding. |
| Have the courts in your jurisdiction addressed whether communications with litigation funders may be protected by the ACP or the work-product protection | No, there is no specific case law or statutory rule on such communications and therefore, the ACP should not apply to litigation funders. Typically, it would be recommended to conclude a standard non-disclosure agreement with the litigation funders in writing. |
| Is the crime-fraud exception recognized in your jurisdiction? | Yes, there are two major exceptions to the ACP in Slovakia that may fall within this category, in particular:
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| What statutes or key court decisions articulate the crime-fraud exception in your jurisdiction? | Both of the above exceptions in I.E.2. are stipulated and articulated directly by Act No. 586/2003 Coll. on Advocacy, as amended (in particular its Section 23). |
| 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)?) | In Slovakia, no discovery as understood in the common law is a part of the civil proceedings (whether during or after the civil proceedings). The parties to the civil proceedings have the discretion of the which materials/documents they would wish to disclose. Therefore, no specific doctrine similar to the Product Doctrine/Litigation Privilege is developed in Slovakia. If the court exceptionally orders in the course of the civil proceedings to submit certain documents, then the ACP applies to all documents that may contain information relating to provision of legal services and the court would respect such ACP and would not impose an obligation to provide such materials/documents. In criminal proceedings, relevant bodies in charge of the criminal investigation can request access to the documents, however, again, the materials/documents prepared in the course of provision of the legal services (e.g. legal opinions and advice or a recording from a meeting with the client) are subject to the ACP and may not be obtained. |
| What are the elements of the protection in your jurisdiction? | Please see our response above. |
| Does your jurisdiction recognize an accountant-client privilege? | No, there is no such obligation applying specifically to accountants. There is only duty of confidentiality that applies to auditors and tax advisors. Therefore, regarding accountants providing services to third parties, it is recommended to agree standard non-disclosure agreement with the accountant in writing. |
| Does your jurisdiction recognize a mediation privilege? | There is no specific mediation privilege. The Slovak law, however, stipulates that the mediator and the persons attending mediation or the third persons invited to participate in mediation should keep a duty of confidentiality regarding any information that they learned in the course of the mediation (Section 5 of Act 420/2004 Coll. on Mediation, as amended). |
| Does your jurisdiction recognize a settlement negotiation privilege? | There is no such privilege recognized in the Slovak law. Typically, in practice, any communication regarding a settlement is done in a way that the parties do not explicitly acknowledge their liability or the claims of the other party (the parties to settlement negotiation often explicitly state that nothing in their communication should be understood as acknowledgment of their liability/the claims of the other party). If the above practice is observed, then practically, the weight of the settlement communication in the court is rather limited. However, there is no rule that would prevent the parties to bring such documents as evidence at the court and it would be up to the court to evaluate such evidence. |
Lex Mundi Global Attorney-Client Privilege Guide
Yes, the ACP is recognized in Slovakia. The ACP is stipulated as a duty of confidentiality owed by attorneys to their clients and for the benefit of their clients (i.e. formally, the ACP is not regulated as a privilege of a client, but rather as a duty of confidentiality held by attorneys towards their clients).
ACP is regulated mainly by Act No. 586/2003 Coll. on Advocacy, as amended, and by professional regulations issued by the Slovak Bar Association.
Attorneys are obligated to keep duty of confidentiality regarding any information that they have learned in course of providing legal services or conducting their practice. The attorneys are obligated to keep the ACP also after they ceased to conduct their practice.
The same duty of confidentiality applies also to attorney trainees and other employees of the attorneys or other persons if they participate in the provision of legal services.
As described in above, in Slovakia, there is a duty of confidentiality that prevents the attorneys from disclosing any information they have learned in the course of conducting their practice. Only the client may release his attorney from such a duty mandatory provided in writing only.
Note: In Slovakia, there are no rules on mandatory discovery in civil proceedings and as a general rule, the parties have discretion over which information and documents they choose to disclose. In rather exceptional cases where the court imposes on a party an obligation to disclose information/documents to the other party, such disclosure must not apply to communication or work product subject to the ACP.
There is no major difference in rules of civil and criminal proceedings in this respect.
In both, the civil as well as the criminal proceedings, there is a prohibition to interrogate a witness who would breach the duty of confidentiality stipulated by law. Such a witness may be relieved from such a duty only by the relevant authority or the person to whose benefit the duty of confidentiality is held. As regards the ACP exclusively the person to whose benefit the duty of confidentiality is held (i.e. the client) may release the attorney from the duty. On top of that the attorney is entitled to refuse any disclosure if it was to the detriment of his client.
The same prohibition also applies to any documents or written files that contain information that is protected under the law. Therefore, attorney-client communications and attorney work product must not be requested neither in civil, nor criminal proceedings (please see the exception in par I.E. below).
Attorneys do not have to keep the ACP in (i) the proceedings the subject of which is the dispute between them and their client as well as (ii) in a disciplinary proceedings against an attorney (for the breach of his duties) that is conducted by the disciplinary bodies of the Slovak Bar Association.
The ACP applies only to the attorneys who are members of the Slovak Bar Association or their attorney trainees or their employees or other persons assisting in providing legal services. The ACP is not extended to inhouse counsels or employees of corporations. Therefore, even if a company employs an inhouse counsel as an employee whose task is to provide legal advice to the company, no client-attorney relationship arises between such corporation and its inhouse counsel and the ACP will not apply to such a case.
N/A
No, the ACP does not apply to the in-house counsels. There are also no specific rules on the professional confidentiality of the in-house counsels.
Therefore, the in-house counsels may only rely on some of a more general duties of confidentiality recognized by the Slovak law, in particular:
- a general duty of confidentiality of employees – an in-house counsel as an employee should not disclose information which he has learned in the course of his employment and which, in the interest of his employer should not be disclosed to third parties; this duty of confidentiality does not apply to the conditions of employment or to notification duties regarding criminal or anti-social activities;
- trade secrets – the in-house counsels should also keep duty of confidentiality regarding the trade secrets of their employer;
- bank secrecy, telecommunications secrecy, etc. may apply in the cases of some businesses or inhouse counsels.
However, none of the above duties of confidentiality is specific for in-house counsels.
However, in the criminal or civil proceedings, the in-house counsels acting as statutory representatives of their company may technically refuse to provide a testimony on behalf of the company provided such testimony could lead to a criminal investigation of the company.
No, active members of the Slovak Bar (i.e. attorneys actively providing legal services) cannot be at the same time in an employment or similar work relationship. The members of the Slovak Bar may conduct their practice only in their own name and on their own behalf and not within an employment or similar relationship with a third party.
No, there is no such separate doctrine in the Slovak law.
If such a disclosure vis-à-vis third party (with common interests) is intended, a non-disclosure agreement would be recommended to be signed.
N/A
There is no such doctrine articulated in the Slovak law.
N/A
However, if the parties wish to disclose confidential information to each other, a written non-disclosure agreement is highly recommended.
There is no specific regulation in Slovakia in this respect. There are also no professional rules on litigation funding.
No, there is no specific case law or statutory rule on such communications and therefore, the ACP should not apply to litigation funders.
Typically, it would be recommended to conclude a standard non-disclosure agreement with the litigation funders in writing.
Yes, there are two major exceptions to the ACP in Slovakia that may fall within this category, in particular:
- The ACP does not apply to the information concerning criminal conduct to which the obligation to prevent a criminal offense applies (this includes the crimes of corruption or crimes for which the law stipulates a prison sentence with a higher penalty limit of at least ten years – i.e. more serious crimes);
- The ACP does not apply to the information which should, under AML regulation, be disclosed or notified.
Both of the above exceptions in I.E.2. are stipulated and articulated directly by Act No. 586/2003 Coll. on Advocacy, as amended (in particular its Section 23).
In Slovakia, no discovery as understood in the common law is a part of the civil proceedings (whether during or after the civil proceedings). The parties to the civil proceedings have the discretion of the which materials/documents they would wish to disclose. Therefore, no specific doctrine similar to the Product Doctrine/Litigation Privilege is developed in Slovakia.
If the court exceptionally orders in the course of the civil proceedings to submit certain documents, then the ACP applies to all documents that may contain information relating to provision of legal services and the court would respect such ACP and would not impose an obligation to provide such materials/documents.
In criminal proceedings, relevant bodies in charge of the criminal investigation can request access to the documents, however, again, the materials/documents prepared in the course of provision of the legal services (e.g. legal opinions and advice or a recording from a meeting with the client) are subject to the ACP and may not be obtained.
Please see our response above.
No, there is no such obligation applying specifically to accountants. There is only duty of confidentiality that applies to auditors and tax advisors. Therefore, regarding accountants providing services to third parties, it is recommended to agree standard non-disclosure agreement with the accountant in writing.
There is no specific mediation privilege. The Slovak law, however, stipulates that the mediator and the persons attending mediation or the third persons invited to participate in mediation should keep a duty of confidentiality regarding any information that they learned in the course of the mediation (Section 5 of Act 420/2004 Coll. on Mediation, as amended).
There is no such privilege recognized in the Slovak law. Typically, in practice, any communication regarding a settlement is done in a way that the parties do not explicitly acknowledge their liability or the claims of the other party (the parties to settlement negotiation often explicitly state that nothing in their communication should be understood as acknowledgment of their liability/the claims of the other party).
If the above practice is observed, then practically, the weight of the settlement communication in the court is rather limited. However, there is no rule that would prevent the parties to bring such documents as evidence at the court and it would be up to the court to evaluate such evidence.