Lex Mundi Global Attorney-Client Privilege Guide |
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Switzerland |
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(Europe)
Firm
Pestalozzi
Contributors
Thomas Rohner |
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| Is the ACP recognized in your jurisdiction? | No, the attorney-client privilege as known in common law countries is not recognized in Switzerland. There is a different system in place. |
| 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... | Yes, there are different rules enabling an attorney or a client to withhold attorney-client communications or work products prepared by an attorney in a civil proceeding. Generally, the basis for the Swiss attorney's secrecy is art. 13 of the Swiss Act on the Attorney's Freedom to Practice, art. 321 of the Swiss Criminal Code and art. 398(2) of the Swiss Code of Obligations. According to art. 160(I)(b), 163(I)(b) and 166(I)(b) of the Swiss Civil Procedure Code, neither the parties themselves nor any third persons are obliged to disclose documents forming correspondence between a party or third party and an attorney. Such correspondence includes all information that an attorney gathers in the exercise of his or her typical professional activity, which consists in providing legal advice, drafting legal documents and representing parties before judicial or administrative authorities. |
| 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 general distinction in applying attorney secrecy in civil and criminal proceedings. The principles governing the attorney's secrecy and their application are the same in the criminal and civil context. Government authorities may generally not require disclosure of attorney-client communications and legal work products. Swiss procedural law explicitly provides that attorney-client correspondence and legal work product is exempt from seizure and the duty to cooperate in the taking of evidence (see art. 264 of the Swiss Criminal Procedure Code and art. 160(I)(b) of the Swiss Civil Procedure Code). Only in the exceptional case of abusive invocation of the attorney secrecy (e.g., if the client misuses the infrastructure of an attorney for criminal purposes) government authorities may require the disclosure of attorney-client communications and legal work products by means of coercive measures. Please note that in criminal proceedings, only correspondence with attorneys practicing in Switzerland, EFTA, EU and in the UK is generally protected from seizure by the prosecution authorities. With regard to correspondence with lawyers practicing outside these jurisdictions (e.g. the United States), one has to carefully examine (depending on the role of the client in the criminal proceedings) whether the protection from seizure applies. This distinction has been confirmed by a very recent ruling of the Swiss Federal Supreme Court. Thus, e.g in the course of investigations, one may want to pay special attention to the attorney-client privilege issue when retaining lawyers not admitted to practice in Switzerland, the EU, EFTA, or the UK. |
| 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 such test applied in Switzerland. In general, privilege is tied to the corporation and not an individual. |
| 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? | In Switzerland, in-house counsel is not expected to do so since they are not protected by attorney secrecy in their function as employees of a company. |
| Civil Law Jurisdictions: May in-house counsel assert privilege or professional confidentiality? | No, in-house counsel may not assert attorney secrecy in their function as employees of a company. |
| Civil Law Jurisdictions: Is in-house counsel allowed to be active members of your jurisdiction’s bar? | In-house counsel is not allowed to be active members of the bar in their function as employees of a company. However, the Swiss Federal Supreme Court does not exclude that in-house counsel working part-time may render legal services as external counsel independently of his or her employer. Such independent work is allowed if there is no relationship between the two activities. In particular, a part-time attorney has to ensure that the employer has no possibility to influence him or her providing legal services as an attorney. |
| Is the common interest doctrine recognized in your jurisdiction? | There is no common interest doctrine in Switzerland. |
| How is the doctrine articulated in your jurisdiction? | Sometimes information is shared on an informal basis; sometimes parties enter into confidentiality agreements prior to exchanging information. According to legal scholars, the voluntary disclosure of information protected by the attorney's secrecy to a third party with common legal interests does not result in a general forfeiture of the attorney's secrecy. |
| Must a common interest agreement be in writing? | No, a common interest agreement regarding the disclosure of information protected by the attorney secrecy does not have to be in writing. |
| Is litigation funding permitted in your jurisdiction? Are there any professional rules in this respect? | Yes, litigation funding by an independent third party is permitted in Switzerland and has been judicially endorsed by the Swiss Federal Supreme Court. There are no specific statutes concerning third-party litigation funding. However, in cases where a litigation funder is involved, attorneys should comply with several general professional rules. For instance, pursuant to art. 8(I)(d) of the Swiss Act on the Attorney's Freedom to Practice, attorneys have a duty to exercise their activity independently. Furthermore, attorneys are obliged to keep client-related information confidential. This duty of confidentiality is based on a number of legal sources, in particular on art. 13 of the Swiss Act on the Attorney's Freedom to Practice. Finally, attorneys have a duty to avoid conflicts of interest. Again, this duty is based on several legal sources, in particular on art. 398(2) of the Swiss Code of Obligations as well as art. 12(c) of the Swiss Act on the Attorney's Freedom to Practice. |
| Have the courts in your jurisdiction addressed whether communications with litigation funders may be protected by the ACP or the work-product protection | The Swiss Federal Supreme Court held that litigation funders might only have a contractual obligation to keep the information confidential. However, this secrecy is not protected by criminal law (art. 321 Swiss Criminal Code). |
| Is the crime-fraud exception recognized in your jurisdiction? | No, Switzerland does not know a specific "crime-fraud exception". As a principle rule, any information given by the client is protected by Swiss attorney secrecy only within the framework of the attorney's typical professional activity. However, with regard to communications between the client and attorney on ongoing or future crime or fraud, there are individual legal scholars, which state that the competent supervisory authority may release an attorney from secrecy upon request under very exceptional circumstances; there are voices, however, which deny such possibility. |
| What statutes or key court decisions articulate the crime-fraud exception in your jurisdiction? | Not available. |
| 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)?) | The attorney secrecy includes the protection of information obtained or prepared in anticipation of litigation from disclosure in legal proceedings (cf. in particular art. 13 of the Swiss Act on The Attorney's Freedom to Practice, art. 321 of the Swiss Criminal Code, art. 160, 163 and 166 of the Swiss Civil Procedure Code, art. 171 and 264 of the Swiss Criminal Procedure Code as well as art. 13, 16 and 17 of the Swiss Federal Act on Administrative Procedure, art. 398 of the Swiss Code of Obligations). |
| What are the elements of the protection in your jurisdiction? | Work product is generally protected if it relates to the attorney’s typical professional activity. It is not required that the work product is expressly prepared for litigation or other procedural steps. Furthermore, the protection from disclosure applies regardless of whether the work product has been created by the attorney, the client, or third parties (such as experts, investigators, accountants, or employees if instructed by the lawyer to do so). |
| Does your jurisdiction recognize an accountant-client privilege? | According to art. 730b(II) of the Swiss Code of Obligations and art. 321(1) of the Swiss Criminal Code, only auditors and not all kinds of "accountants" are bound to secrecy. However, auditors are obliged to cooperate in the taking of evidence in civil proceedings. Art. 163(1)(b) and 166(1)(b) of the Swiss Civil Procedure Code explicitly exclude auditors from the list of professions having a right to refuse such cooperation. |
| Does your jurisdiction recognize a mediation privilege? | Yes, a mediation privilege is recognized in Switzerland. According to art. 216 of the Swiss Civil Procedure Code, mediation proceedings are confidential and kept separate from the conciliation authority and the court. Statements of the parties during mediation may not be used in court proceedings. In addition, art. 166(1)(d) of the Swiss Civil Procedure Code provides that mediators may refuse to testify on facts that have come to their attention in the course of their activities as a mediator. |
| Does your jurisdiction recognize a settlement negotiation privilege? | Yes, a settlement negotiation privilege is recognized in Switzerland. The Swiss Federal Supreme Court derives such privilege from art. 12(a) of the Swiss Act on the Attorney's Freedom to Practice as well as from art. 6 and 26 of the Swiss Rules of Professional Conduct for Attorneys. According to the jurisprudence of the Swiss Federal Supreme Court, settlement discussions between attorneys are confidential. The same applies to settlement discussions between the parties which took place in the presence of their attorneys. In contrast, settlement discussions between an attorney and a party that is not represented are only confidential if the parties have expressly agreed to confidentiality. |
Lex Mundi Global Attorney-Client Privilege Guide
No, the attorney-client privilege as known in common law countries is not recognized in Switzerland. There is a different system in place.
Yes, there are different rules enabling an attorney or a client to withhold attorney-client communications or work products prepared by an attorney in a civil proceeding.
Generally, the basis for the Swiss attorney's secrecy is art. 13 of the Swiss Act on the Attorney's Freedom to Practice, art. 321 of the Swiss Criminal Code and art. 398(2) of the Swiss Code of Obligations.
According to art. 160(I)(b), 163(I)(b) and 166(I)(b) of the Swiss Civil Procedure Code, neither the parties themselves nor any third persons are obliged to disclose documents forming correspondence between a party or third party and an attorney. Such correspondence includes all information that an attorney gathers in the exercise of his or her typical professional activity, which consists in providing legal advice, drafting legal documents and representing parties before judicial or administrative authorities.
There is no general distinction in applying attorney secrecy in civil and criminal proceedings. The principles governing the attorney's secrecy and their application are the same in the criminal and civil context.
Government authorities may generally not require disclosure of attorney-client communications and legal work products. Swiss procedural law explicitly provides that attorney-client correspondence and legal work product is exempt from seizure and the duty to cooperate in the taking of evidence (see art. 264 of the Swiss Criminal Procedure Code and art. 160(I)(b) of the Swiss Civil Procedure Code). Only in the exceptional case of abusive invocation of the attorney secrecy (e.g., if the client misuses the infrastructure of an attorney for criminal purposes) government authorities may require the disclosure of attorney-client communications and legal work products by means of coercive measures.
Please note that in criminal proceedings, only correspondence with attorneys practicing in Switzerland, EFTA, EU and in the UK is generally protected from seizure by the prosecution authorities. With regard to correspondence with lawyers practicing outside these jurisdictions (e.g. the United States), one has to carefully examine (depending on the role of the client in the criminal proceedings) whether the protection from seizure applies. This distinction has been confirmed by a very recent ruling of the Swiss Federal Supreme Court. Thus, e.g in the course of investigations, one may want to pay special attention to the attorney-client privilege issue when retaining lawyers not admitted to practice in Switzerland, the EU, EFTA, or the UK.
There is no such test applied in Switzerland. In general, privilege is tied to the corporation and not an individual.
In Switzerland, in-house counsel is not expected to do so since they are not protected by attorney secrecy in their function as employees of a company.
No, in-house counsel may not assert attorney secrecy in their function as employees of a company.
In-house counsel is not allowed to be active members of the bar in their function as employees of a company. However, the Swiss Federal Supreme Court does not exclude that in-house counsel working part-time may render legal services as external counsel independently of his or her employer. Such independent work is allowed if there is no relationship between the two activities. In particular, a part-time attorney has to ensure that the employer has no possibility to influence him or her providing legal services as an attorney.
There is no common interest doctrine in Switzerland.
Sometimes information is shared on an informal basis; sometimes parties enter into confidentiality agreements prior to exchanging information. According to legal scholars, the voluntary disclosure of information protected by the attorney's secrecy to a third party with common legal interests does not result in a general forfeiture of the attorney's secrecy.
No, a common interest agreement regarding the disclosure of information protected by the attorney secrecy does not have to be in writing.
Yes, litigation funding by an independent third party is permitted in Switzerland and has been judicially endorsed by the Swiss Federal Supreme Court.
There are no specific statutes concerning third-party litigation funding. However, in cases where a litigation funder is involved, attorneys should comply with several general professional rules. For instance, pursuant to art. 8(I)(d) of the Swiss Act on the Attorney's Freedom to Practice, attorneys have a duty to exercise their activity independently. Furthermore, attorneys are obliged to keep client-related information confidential. This duty of confidentiality is based on a number of legal sources, in particular on art. 13 of the Swiss Act on the Attorney's Freedom to Practice. Finally, attorneys have a duty to avoid conflicts of interest. Again, this duty is based on several legal sources, in particular on art. 398(2) of the Swiss Code of Obligations as well as art. 12(c) of the Swiss Act on the Attorney's Freedom to Practice.
The Swiss Federal Supreme Court held that litigation funders might only have a contractual obligation to keep the information confidential. However, this secrecy is not protected by criminal law (art. 321 Swiss Criminal Code).
No, Switzerland does not know a specific "crime-fraud exception". As a principle rule, any information given by the client is protected by Swiss attorney secrecy only within the framework of the attorney's typical professional activity. However, with regard to communications between the client and attorney on ongoing or future crime or fraud, there are individual legal scholars, which state that the competent supervisory authority may release an attorney from secrecy upon request under very exceptional circumstances; there are voices, however, which deny such possibility.
Not available.
The attorney secrecy includes the protection of information obtained or prepared in anticipation of litigation from disclosure in legal proceedings (cf. in particular art. 13 of the Swiss Act on The Attorney's Freedom to Practice, art. 321 of the Swiss Criminal Code, art. 160, 163 and 166 of the Swiss Civil Procedure Code, art. 171 and 264 of the Swiss Criminal Procedure Code as well as art. 13, 16 and 17 of the Swiss Federal Act on Administrative Procedure, art. 398 of the Swiss Code of Obligations).
Work product is generally protected if it relates to the attorney’s typical professional activity. It is not required that the work product is expressly prepared for litigation or other procedural steps. Furthermore, the protection from disclosure applies regardless of whether the work product has been created by the attorney, the client, or third parties (such as experts, investigators, accountants, or employees if instructed by the lawyer to do so).
According to art. 730b(II) of the Swiss Code of Obligations and art. 321(1) of the Swiss Criminal Code, only auditors and not all kinds of "accountants" are bound to secrecy. However, auditors are obliged to cooperate in the taking of evidence in civil proceedings. Art. 163(1)(b) and 166(1)(b) of the Swiss Civil Procedure Code explicitly exclude auditors from the list of professions having a right to refuse such cooperation.
Yes, a mediation privilege is recognized in Switzerland. According to art. 216 of the Swiss Civil Procedure Code, mediation proceedings are confidential and kept separate from the conciliation authority and the court. Statements of the parties during mediation may not be used in court proceedings. In addition, art. 166(1)(d) of the Swiss Civil Procedure Code provides that mediators may refuse to testify on facts that have come to their attention in the course of their activities as a mediator.
Yes, a settlement negotiation privilege is recognized in Switzerland. The Swiss Federal Supreme Court derives such privilege from art. 12(a) of the Swiss Act on the Attorney's Freedom to Practice as well as from art. 6 and 26 of the Swiss Rules of Professional Conduct for Attorneys. According to the jurisprudence of the Swiss Federal Supreme Court, settlement discussions between attorneys are confidential. The same applies to settlement discussions between the parties which took place in the presence of their attorneys. In contrast, settlement discussions between an attorney and a party that is not represented are only confidential if the parties have expressly agreed to confidentiality.