Lex Mundi Global Attorney-Client Privilege Guide |
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Sweden |
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(Europe)
Firm
Advokatfirman Vinge KB
Contributors
James Hope |
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| Is the ACP recognized in your jurisdiction? | Yes, but generally only for members of the Swedish Bar Association (Sw. Advokater) and for members of equivalent bar associations within the EU. In Sweden, the concept of attorney-client privilege is regulated in the Swedish Code of Judicial Procedure. Chapter 8 Section 4 of the Code of Judicial Procedure provides that a member of the Swedish Bar Association is under a duty to treat information he/she receives in pursuance of his/her profession confidentially when the Code of Conduct of the Swedish Bar Association so requires. In addition, Chapter 36 Section 5 Paragraph 2 of the Code of Judicial Procedure stipulates that lawyers and their associates may testify as witnesses regarding matters of which they have knowledge in their professional legal capacity only if so required by law or if the client so consents. Chapter 36 Section 5 Paragraph 3 of the Code of Judicial Procedure has a similar rule for Swedish lawyers appearing in court (even if they are not members of the Swedish Bar Association, but not including in-house counsel). Chapter 38 Section 2 Paragraph 2 of the Code of Judicial Procedure extends these rules to production of documents. Thus, neither the client nor the member of the Swedish Bar Association is required to hand over documents covered by legal professional privilege. |
| 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, ACP is recognized for members of the Swedish Bar Association and for members of equivalent bar associations within the EU. Non-EU lawyers could seek to rely upon ACP in their home jurisdictions, but it is unclear to what extent a Swedish court or arbitral tribunal would recognize foreign 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? | No, in Sweden, the scope of ACP is the same, regardless of whether the client is subject to civil or criminal proceedings. The privilege does not apply in certain particular situations as set out in legislation. In particular:
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| 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.) | ACP does not apply to in-house counsel in Sweden. |
| 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? | See above |
| Civil Law Jurisdictions: May in-house counsel assert privilege or professional confidentiality? | No See above |
| Civil Law Jurisdictions: Is in-house counsel allowed to be active members of your jurisdiction’s bar? | No, they cannot be members of the Swedish Bar Association. |
| Is the common interest doctrine recognized in your jurisdiction? | No, not specifically. However, it has been argued in the legal literature that ACP may protect confidential communications and information that is related to the communications from a third party, provided that the information was given to the advocate in his or her professional capacity. Thus, it may be possible to argue that privilege is not waived in this situation. |
| How is the doctrine articulated in your jurisdiction? | See above. |
| Must a common interest agreement be in writing? | See above. |
| Is litigation funding permitted in your jurisdiction? Are there any professional rules in this respect? | There are no general rules concerning litigation funding, but members of the Swedish Bar Association are required to follow their Code of Conduct which limits their funding arrangements in certain respects. |
| Have the courts in your jurisdiction addressed whether communications with litigation funders may be protected by the ACP or the work-product protection | No |
| Is the crime-fraud exception recognized in your jurisdiction? | Yes, a similar concept is recognized in Sweden. ACP does not apply when the advocate is required by the legislation to provide evidence of serious crime. However, the legislative requirements impose a high threshold for this exception to apply. |
| What statutes or key court decisions articulate the crime-fraud exception in your jurisdiction? | See Chapter 36 Section 5 Paragraph 4 of the Code of Judicial Procedure. |
| 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)?) | Not as such. Confidential advice between the lawyer and the client is privileged, but additional documents prepared in anticipation of litigation or trial are not generally privileged. However, Swedish law is quite unclear on this point. |
| What are the elements of the protection in your jurisdiction? | See above. |
| Does your jurisdiction recognize an accountant-client privilege? | Accountants may also have accountant-client privilege pursuant to Chapter 9 Section 41 of the Swedish Companies Act and Section 35 of the Auditing Act. According to the provisions, the accountant may not disclose any information regarding the company if it may damage the company. |
| Does your jurisdiction recognize a mediation privilege? | Article 5 of the Swedish Act (2011:860) on Mediation in Certain Private Law Disputes provides a duty of confidentiality for the mediator (only). |
| Does your jurisdiction recognize a settlement negotiation privilege? | There is no such privilege as such. However, for members of the Swedish Bar Association, it would constitute a breach of the Code of Conduct for a member of the Swedish Bar Association to disclose the opposing party’s settlement offers without the express consent of the opposing party (Code of Conduct, para. 5.7). However, a member of the Swedish Bar Association is not prevented from disclosing his/her own client’s settlement offers. It is also possible for parties to enter into an agreement that stipulates that settlement negotiations cannot be disclosed or used as evidence in any future disputes between the contracting parties. |
Lex Mundi Global Attorney-Client Privilege Guide
Yes, but generally only for members of the Swedish Bar Association (Sw. Advokater) and for members of equivalent bar associations within the EU.
In Sweden, the concept of attorney-client privilege is regulated in the Swedish Code of Judicial Procedure. Chapter 8 Section 4 of the Code of Judicial Procedure provides that a member of the Swedish Bar Association is under a duty to treat information he/she receives in pursuance of his/her profession confidentially when the Code of Conduct of the Swedish Bar Association so requires.
In addition, Chapter 36 Section 5 Paragraph 2 of the Code of Judicial Procedure stipulates that lawyers and their associates may testify as witnesses regarding matters of which they have knowledge in their professional legal capacity only if so required by law or if the client so consents. Chapter 36 Section 5 Paragraph 3 of the Code of Judicial Procedure has a similar rule for Swedish lawyers appearing in court (even if they are not members of the Swedish Bar Association, but not including in-house counsel).
Chapter 38 Section 2 Paragraph 2 of the Code of Judicial Procedure extends these rules to production of documents. Thus, neither the client nor the member of the Swedish Bar Association is required to hand over documents covered by legal professional privilege.
As stated above, ACP is recognized for members of the Swedish Bar Association and for members of equivalent bar associations within the EU.
Non-EU lawyers could seek to rely upon ACP in their home jurisdictions, but it is unclear to what extent a Swedish court or arbitral tribunal would recognize foreign ACP.
No, in Sweden, the scope of ACP is the same, regardless of whether the client is subject to civil or criminal proceedings.
The privilege does not apply in certain particular situations as set out in legislation. In particular:
- where the lawyer is required to be a witness, or to hand over documents, concerning serious crime (i.e. crime which carries a minimum sentence of two years in prison) or in certain other situations concerning crime or serious issues concerning children,
- in certain situations concerning money laundering or terrorist financing, and
- in certain situations under tax legislation.
ACP does not apply to in-house counsel in Sweden.
See above
No See above
No, they cannot be members of the Swedish Bar Association.
No, not specifically.
However, it has been argued in the legal literature that ACP may protect confidential communications and information that is related to the communications from a third party, provided that the information was given to the advocate in his or her professional capacity. Thus, it may be possible to argue that privilege is not waived in this situation.
See above.
See above.
There are no general rules concerning litigation funding, but members of the Swedish Bar Association are required to follow their Code of Conduct which limits their funding arrangements in certain respects.
No
Yes, a similar concept is recognized in Sweden. ACP does not apply when the advocate is required by the legislation to provide evidence of serious crime. However, the legislative requirements impose a high threshold for this exception to apply.
See Chapter 36 Section 5 Paragraph 4 of the Code of Judicial Procedure.
Not as such. Confidential advice between the lawyer and the client is privileged, but additional documents prepared in anticipation of litigation or trial are not generally privileged. However, Swedish law is quite unclear on this point.
See above.
Accountants may also have accountant-client privilege pursuant to Chapter 9 Section 41 of the Swedish Companies Act and Section 35 of the Auditing Act. According to the provisions, the accountant may not disclose any information regarding the company if it may damage the company.
Article 5 of the Swedish Act (2011:860) on Mediation in Certain Private Law Disputes provides a duty of confidentiality for the mediator (only).
In addition, Article 3 of the Mediation Rules of the Arbitration Institute of the Stockholm Chamber of Commerce provides a duty of confidentiality for the parties to the dispute, the Mediator and the SCC regarding the meditation. This requires that the parties have agreed that the SCC Mediation Rules are applicable.
There is no such privilege as such.
However, for members of the Swedish Bar Association, it would constitute a breach of the Code of Conduct for a member of the Swedish Bar Association to disclose the opposing party’s settlement offers without the express consent of the opposing party (Code of Conduct, para. 5.7). However, a member of the Swedish Bar Association is not prevented from disclosing his/her own client’s settlement offers.
It is also possible for parties to enter into an agreement that stipulates that settlement negotiations cannot be disclosed or used as evidence in any future disputes between the contracting parties.