Yes. ACP is recognized In Argentina through several regulations.

ACP has constitutional status. Section 18 of the Argentine Constitution provides that: “…No person may be compelled to testify against itself; nor arrested except by virtue of a written order from a competent authority. The defense of persons and rights in court is inviolable. Domicile is inviolable, as are correspondence and private papers; and a law shall determine in what cases and on what grounds they may be searched and occupied…”.

Additionally, Section 19 of the Argentine Constitution states that: “The private actions of persons which in no way offend public order and morals, nor harm a third party, are reserved to God alone, and are exempt from the authority of the courts. No inhabitant of the Nation shall be obliged to do what the law does not command, nor deprived of what the law does not prohibit”.

The guarantees which derive from Sections 18 and 19 of the Argentine Constitution, are further reflected in Section 156 of the Argentine Criminal Code ("ACC"), which provides that: “Whoever having knowledge by reason of status, office, employment, profession or art, of a secret whose disclosure may cause damage, discloses it without just cause, shall be punished with a fine of one AR$ 1,500 to AR$ 90.0000 and special disqualification, as the case may be, for a term of six months to three years”.

In light of these regulations, the Argentine Supreme Court of Justice has concluded that the “conduct of the attorneys exposing in court the commission of alleged crimes by their clients, of which they became knowledgeable as a result of their legal representation, implies a violation not only of the broad principle of due process, but also of the rights to privacy and intimacy of their clients, guarantees that, stemming from Section 19 of the Argentine Constitution, are crystallized in such clear and specific rules as Section 244 of the National Criminal Procedural Code and Section 156 of the Criminal Code…”¹.

In addition to the Argentine Constitution and the ACC, there are other provisions which protect ACP in local regulations such as Procedural Codes. In this regard, Argentine substantive legal codes, which have been inspired by continental European models, are enacted by the Federal Congress, as well as federal laws, and are applicable throughout Argentina. Nevertheless, each Province and the City of Buenos Aires enact their own procedural code and/or laws (Section 75, Subsection 12, Argentine Constitution), and the law(s) that regulate(s) the practice of law in their jurisdiction, and each of those jurisdictions have their own Bar Association.²

In this respect, the Federal Civil and Commercial Procedural Code (“CCPC”) as well as the Federal Criminal Procedure Code (both of which regulate judicial procedures in federal courts and National courts seated in the City of Buenos Aires) provide additional provisions with respect to ACP as it is further explained below (please see answer to question A.3).

Additionally, Section 6, Subsection F, of Law No. 23.187³ provides that lawyers shall: “faithfully observe professional secrecy, unless authorized by the interested party”. Moreover, Section 7 of Law No. 23.187 states the following specific rights of lawyers:

• “To withhold professional secrecy” (Subsection C); and
• “The inviolability of their professional offices, in order to safeguard the constitutional guarantee of due process. In the event of a search and seizure, the competent authority that has ordered the measure shall give notice to the Bar, and the lawyer may request the presence of a member of the Bar Council during the proceeding, without this implying the suspension of the proceeding” (Subsection E).

Lastly, Section 10, Subsection H and I, of the Code of Ethics of the Bar Association of the City of Buenos Aires (“Code of Ethics”)⁴ state that:

• “The lawyer must strictly respect all professional secrets and oppose to be released of the professional secrecy duty by judges or any other authority, refusing to answer questions that may expose him/her to violate it. The only exceptions are a) When the client so authorizes; b) In case of defending his/her own case” (Subsection H).
• “The lawyer must defend the right to the inviolability of his/her law office and of the documents that have been entrusted to him/her” (Subsection I).

Finally, with respect to Law No. 23.187 and the Code of Ethics, case law has considered that: “the waiver of professional secrecy duties -and the lawyers involved in these proceedings should be aware of this- is a matter that concerns the holder of the secret and is not -in principle- within the judge's sphere of decision”⁵.

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¹ Argentine Supreme Court of Justice, Clementi, Edgar Omar and other Vs. Embassy of the Russian Federation and others. Ruling dated on April 17, 2007. Online quote: TR LALEY AR/JUR/3606/2007.

² Which, in turn, have their own Code of Ethics.

³ Which provides the rules for the practice of law in the City of Buenos Aires.

⁴ According to Section 1 of the Code of Ethics, its provisions shall be applicable to all members of this Bar Association in the practice of law in the City of Buenos Aires and/or before Federal Courts.

⁵ Argentine Civil Chamber of Appeals (Panel I), Vara, Pedro. Ruling dated on March 4, 2010. Online quote: TR LALEY AR/JUR/69106/2010.

Please see the answer to question 1 above.

At a national level, criminal proceedings are governed by the National Code of Criminal Proceedings (“NCCP”) and the Federal Code of Criminal Proceedings (“FCCP”), which will fully replace the former by 2022. Both codes recognize ACP and regulate its procedural implications.

Section 244 of the NCCP states that attorneys are barred from testifying about facts or circumstances known on account of or by reason of their profession. Section 232 of the NCCP limits the court´s subpoena powers, stipulating that a subpoena may not be directed to any person bound by a duty of professional secrecy. Also, Section 237 of the NCCP precludes the seizure of letters or documents exchanged between an attorney and his/her client, for the purposes of legal counsel.

In similar terms, Section 160 of the FCCP bars attorneys from testifying in connection with information known on account of their legal profession. Section 149 of the FCCP states that individuals bound by professional secrecy duties may refuse court document subpoenas. Finally, Section 147 of the FCCP stipulates that individuals bound by the prohibition to testify are likewise exempt from the duty to produce relevant documents upon court or prosecutor request.

Violating the ACP carries criminal penalties under Section 156 of the Argentine Criminal Code, including fines and special disqualification for up to three years.

A.3.1. Professional confidentially rules and case law in civil proceedings

With respect to civil proceedings, there are additional issues to be considered depending on the nature of the dispute at hand.

General considerations relating to civil proceedings

To lift the ACP in civil proceedings, Argentine case law has concluded that ACP “can only be disregarded when the existence of a "just cause" in the terms of art. 156 of the ACL is determined, but the need to determine just cause does not arise when there is the consent of the interested party, since, obviously, in such a case his/her right to privacy is not violated; in fact, that is the cause par excellence that relieves the professional secrecy both in criminal and civil matters”¹.

In connection to attorneys testifying as witnesses in court, it should be emphasized that according to Section 444 of the CCPC²: “The witness may refuse to answer the questions: (…) If he/she cannot answer without revealing a professional, military, scientific, artistic or industrial secret”.

In this respect, Argentine case law has concluded that: “the refusal of the attorney proposed as a witness to answer a question regarding a fact of which he/she would have had knowledge in the exercise of his/her profession in defense of his/her client – a defendant in this lawsuit - is justified”³.

Family disputes

Federal Rules applicable in all courts in Argentina

• Section 22 of the Law on Comprehensive Protection of the Rights of Children and Adolescents ("Law No. 26.061"), provides that: “Children and adolescents have the right to be respected in their dignity, reputation and self-image. It is forbidden to expose, disseminate or disclose data, information or images that allow the identification, directly or indirectly, of the subjects of this law, through any means of communication or publication against their will and that of their parents, legal representatives or guardians, when their dignity or reputation as children and adolescents is harmed, or constitute arbitrary or illegal interference in their private life or family intimacy”.

Rules applicable to federal courts and National courts seated in the City of Buenos Aires

• Section 63 of the rules of procedure applicable to national justice courts (“Reglamento para la Justicia Nacional”)⁴ provides that case files can be reviewed by: “(a) The parties, their attorneys, attorneys-in-fact, legal representatives, and experts appointed during the proceedings. Representatives of the federal government, provinces, municipalities and autarchic agencies may authorize an employee to review the files in which they are parties; (b) Any lawyer, notary or solicitor acting in such capacity, even if not intervening in the proceedings, and (c) Journalists, on the occasion of the final decision of the case”.

However, Section 64 states that: “The following are exempted from paragraphs b) and c) of the preceding article: a) Files containing administrative proceedings of a reserved nature. b) Files relating to family law matters (divorce, filiation, nullity of marriage, loss of parental authority, custody of children, insanity, etc.), as well as those whose confidentiality is specially ordered”.

• Section 164 of the CCPC provides that: “…The judgments of any instance may be made public unless, due to the nature of the trial, reasons of decorum advise to maintain them reserved, in which case it shall be so declared. If public access to a judgment affects the privacy of the parties or third parties, the names of the latter shall be eliminated from the copies for publication”.

With respect to the foregoing paragraphs, a scholar has considered that: “All these rules impose, to a greater or lesser extent, a duty on all those involved in family proceedings to act with discretion”.⁵

Commercial disputes

Under Argentine Bankruptcy Law (“ABL”), when a human or legal entity is declared bankrupt, then the court must order the delivery of its correspondence directly to the trustee (Section 88, ABL).

In principle, the interception of the correspondence belonging to the bankrupt entity does not lift the ACP. In fact, Argentine case law has considered that: “one of the effects of the bankruptcy decree is the interception of the bankrupt's correspondence, to which e-mail can be assimilated. As provided by Section 114 of the ABL⁶, such measure must be carried out in the presence of the debtor or, in his absence, of the judge (…) with regard to the possible existence of information of third parties that may be confidential, the measure should be carried out strictly with respect to commercial and corporation data related to the realization of the assets of the insolvent company and the re-composition of its assets, for which reason the trustee must refrain from providing information that exceeds the interest of the bankruptcy and to keep it confidential in order to protect the rights of third parties”⁷.

Nevertheless, if a client has filed for bankruptcy or has been declared bankrupt, the court with jurisdiction over the case may request the lawyer to provide information that could be protected by the ACP, if it considers that there will be no prejudice to the client and that the information will be beneficial to creditors and third parties.

In Credibono Cía. Financiera, the attorney of the bankrupted corporation was ordered to inform when he/she had prepared the list of lawsuits that had previously accompanied the case file and which other lawyers of his/her firm were involved in the bankrupted corporation's litigation. The Commercial Court handling the Credibono bankruptcy argued that it didn’t see: “what would be the damage or harm in the disclosure of the data requested by the court: on the contrary, the measures in question fall within the scope of the powers conferred to the judge and the trustee by Argentine Bankruptcy Law (…): these are the measures aimed at the seizure of assets (…) By definition, such rules are intended to protect the interests of the mass of creditors and, indirectly, of the debtor itself, who has a legitimate expectation of the restitution of the remaining balance, if any, at the end of the liquidation proceedings”⁸.

Class actions

Even though Argentina is a continental law system, class actions have been admitted since 2009 by the Argentine Supreme Court of Justice ruling in Halabi. This leading case is relevant with respect to ACP, since Halabi (lawyer) promoted a class action claiming the unconstitutionality of Argentine Law No. 25.873 on the grounds that its provisions violate the guarantees set forth in Sections 18 and 19 of the Argentine Constitution (please see answer to question A.1), since it authorized the intervention of telephone and Internet communications without a law determining "in what cases and with what justification". Moreover, he alleged that such interference constitutes a violation of his rights to privacy and intimacy, as a user, as well as an undermining of the confidentiality privilege that, as a lawyer, he holds in communications with his clients⁹.

In the proceedings promoted by Halabi, the Bar Association of the City of Buenos Aires and the Argentine Federation of Bar Associations filed in the proceedings supporting the plaintiff's claims.

The Argentine Supreme Court of Justice considered that “the requirements for class actions, as outlined in this judgment, have been met” and upheld the claim and declared the unconstitutionality of sections 1 and 2 of Law 25.873.

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^[1] Argentine Civil Chamber of Appeals (Panel E), N., J. F. c. D. N. M., A. s/ preventive measures. Ruling dated on March 16, 2020. Online quote: TR LALEY AR/JUR/1042/2020.

^[2] which regulates judicial procedures with federal courts and National courts seated in the City of Buenos Aires.

^[3] Argentine Commecial Chamber of Appeals (Panel C), Cano Brothers Vs. Galvanotecnia “LA VASCA". Ruling dated on April 23, 1959.

^[4] Which was issued by the Argentine Supreme Court of Justice.

^[5] Agustín Sojo, Professional secrecy and the protection of privacy in family lawsuits. Online quote: Cita: TR LALEY AR/DOC/1123/2019.

^[6] Section 114 of the ABL provides that: “The correspondence and the communications addressed to the bankrupt must be delivered to the trustee. This one must open them in the presence of the bankrupt or in that of the judge in its defect, being given to the interested party the one that was strictly personal”.

^[7] Argentine Commercial Chamber of Appeals (Panel C), Scotiabank Quilmes/ Bankruptcy/ investigation pursued by Colonial Bank. Ruling dated on August 6, 2004.

^[8] Argentine Commercial Chamber of Appeals (Panel A), Credibono Cía. Financiera S. A. Ruling dated on May 29, 1996. Online quote: TR LALEY AR/JUR/2582/1996.

^[9] Argentine Supreme Court of Justice, Halabi Vs. Argentina. Ruling dated on February 24, 2009.

To our knowledge, there is no specific case law addressing this issue from the attorney-client privilege point of view. However, under Argentine Corporate Law the president of the board of a corporation is its representative by law, and under general civil law rules whoever is acting on behalf of a legal entity is exercising some kind of representation so long as the parties involved acknowledge that the actions of such individual are attributable to and binding for the legal entity.

In this context, a distinction should be made between who may be considered a representative of the client for purposes of giving instructions to the attorney, and who is a representative of the client in other scenarios (for example, company officers or employees who are interviewed during an internal investigation). The former is usually a clear case because whoever makes such kinds of decisions must evidence capacity to represent the company while the latter could be challenged more easily. In the latter case, it seems reasonable to conclude that the concepts in the Upjohn warning could serve to clarify the situation.

So long as in-house counsel actually provides legal advice to the company rather than playing the role of a company executive coordinating operational steps, and other applicable requisites are met, we believe that there are reasonable grounds under applicable Argentine regulations to conclude that in-house counsel advice is protected by the attorney-client privilege.

The ACP is recognized in Argentina through several regulations that do not make any distinction between independent attorneys or in-house counsel with respect to professional confidentiality. Therefore, in principle, it can be argued that in-house counsel may assert privilege or professional confidentiality.

Pursuant to Section 2 of Law No. 23.187 (that includes the rules for the practice of law in the City of Buenos Aires), both independent lawyers and in-house counsel have to be enrolled in the Bar Association of the City of Buenos Aires to practice law in said jurisdiction and, by doing so, they automatically are subject to the Code of Ethics¹. In turn, the Code of Ethics provides that the lawyer: “must strictly respect all professional secrets and oppose to be released of the professional secrecy duty by judges or any other authority” (Section 10, Subsection H, Code of Ethics) and must “defend the right to the inviolability of his/her law office and of the documents that have been entrusted to him/her” (Section 10, Subsection I, Code of Ethics).

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¹ With respect to in-house counsel, it should be emphasized that Section 20 of the Code of Ethics currently in force in the City of Buenos Aires provides that: “The lawyer is free to accept or decline matters in which his professional intervention is requested, without the need to express the reasons for his/her determination, except (…) when he acts in a dependent relationship and subject to directives from the principal. In these cases, the lawyer may justify his/her declination based on ethical or legal rules that may affect him/her personally or professionally”. Consequently, in-house lawyers are not excluded from the application of the Code of Ethics.

As previously explained, it could be argued that in-house counsel is not just allowed but requested to be active members of the City of Buenos Aires Bar since Section 2 of Law 23.187 states that: “to practice the profession of lawyer in the jurisdiction of the City of Buenos Aires it is required: a) To hold a qualifying degree issued by a competent authority; b) To be enrolled in the Bar Association of the City of Buenos Aires; and c) not to be subject to the incompatibilities or impediments listed in Section 3”.

There is no explicit recognition of the common interest doctrine in criminal procedural regulations and the matter has not been subject to judicial review. Nevertheless, information exchange between counsel for defendants with aligned interests is common practice in criminal litigation.

Please see the answer to question 1 above.

Please see the answer to question 1 above.

There is no regulation regarding third-party funding in Argentina. In general, litigation is funded by the parties, unless they are granted legal aid.

Contingency fee arrangements are valid, though they are subject to certain limitations in accordance with the Attorneys' Fees Law No. 27.423, applicable to cases filed before federal courts and National courts seated in the City of Buenos Aires:

• They cannot exceed 30% of the amount awarded in the court ruling.
• They may be extended up to 40% of such amount if the lawyer expressly assumes the expenses corresponding to the defense of the client and undertakes the obligation to bear the court costs.

Attorney’s private fee agreements with their clients usually remain out of court. Depending on the case, legal services can be charged at an hourly rate, by stage of the proceeding, as capped fees, retainers or contingency fees or a mix of these fee alternatives. However, depending on the specific private fee arrangement, this fact does not prevent lawyers from also claiming fees from the opponent if the court decides that costs must be borne by the losing party.

There is no legislation or precedents that have addressed whether communications with litigation funders may be protected by the ACP or the work-product protection.

Neither the NCCP nor the FCCP explicitly recognizes the Crime-Fraud Exception doctrine. Nevertheless, certain precedents have accepted the removal of ACP protection when the attorney was deemed to be acting as an accomplice to an ongoing crime, rather than providing legal advice in connection with past illegal activities.

Although not explicitly articulated in local case law, certain precedents have limited ACP protection in cases where the attorney was personally engaged in the commission of a crime.

In re “C.,F.”, Section I of the National Criminal Court of Appeals held that the ACP does not entail absolute personal immunity. Instead, the Court held that the protection “…extends only to the attorney´s activities as legal counsel, which is not the case as [the lawyer] is named as a defendant together with his client” (2011).

Similarly, In re Fernández Segura, Section VI of the National Criminal Court of Appeals held that “…the protection afforded to a law office (…) is established to protect the client´s rights and not the attorney´s own interests. ACP does not guarantee a personal privilege” (2017).

In Argentina, there is no statute or rule that protects information obtained or prepared in anticipation of litigation from disclosure in legal proceedings, with the exception of those prepared within a mediation proceeding (please see the answer to question II.B).

Notwithstanding the absence of a specific rule or statute, information obtained or prepared in anticipation of litigation is considered to be equally protected by the provisions recognizing the ACP. In this regard, Argentine case law has concluded that: “It is of the essence of the lawyer's ministry an inviolable loyalty to the client who resorted to his/her services and therefore, the professional secrecy extends not only to the facts that the professional has known by confidences of his/her patronage but to those that came to his/her knowledge on the occasion or in the exercise of his advice or defense”¹.

Therefore, in light of the broad conception of ACP under Argentine law, it could be concluded that information obtained or prepared in anticipation of litigation from disclosure in legal proceedings is generally covered by ACP.

Please see answer A.3.1. under “Commercial Disputes” where we mention certain limitations on the scope of ACP decided in the Credibono Cía. Financiera case.

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¹ Argentine Commecial Chamber of Appeals (Panel C), Cano Brothers Vs. Galvanotecnia “LA VASCA". Ruling dated on April 23, 1959.

Based on the foregoing, it could be argued that information obtained or prepared in anticipation of litigation from disclosure in legal proceedings falls under the scope of the ACP protection since there is no particular statute or rule. Therefore, the elements of the protection would be the same elements of the ACP.

Argentine laws do recognize accountant-client privilege; in fact, all liberal professionals are bound by a duty to uphold professional secrecy.

Nevertheless, the accountant-client privilege is not as robust as the attorney-client privilege. Indeed, both the NCCP and the FCCP state that while the accountant may assert professional secrecy, the acting criminal court has the authority to relieve him/her from that duty and compel testimony.

Also, Section 237 of the FCCP has introduced the accountant´s duty to report potential cases of tax evasion, money laundering and human trafficking.

In Argentina, each Province and the City of Buenos Aires enact their own procedural rules that are applicable in their respective jurisdictions (Section 75, Subsection 12, Argentine Constitution), which also includes the rules related to mediation proceedings.

In this respect, the Federal Mediation and Conciliation Law No. 26.589 establishes the mandatory nature of mediation prior to any judicial proceeding to be promoted before federal courts and National courts seated in the City of Buenos Aires.

This law mentions some principles governing the mediation process such as “Confidentiality with respect to information disclosed by the parties, their advisors or third parties summoned during the compulsory pre-judicial mediation procedure” (Section 7, Subsection e).

According to Section 8 of said law, the scope of confidentiality includes “the content of the papers and/or any other working material that the parties have prepared or evaluate for the purposes of the mediation”, and that “Confidentiality does not require the express agreement of the parties”.

Additionally, Section 9 of the Federal Mediation and Conciliation Law states that confidentiality ceases: “(a) By express waiver by all parties involved; b) To prevent the commission of a crime or, if a crime is being committed, to prevent its continuation. The cessation of confidentiality must be interpreted restrictively and the cases of exception must be evident”.

Confidentiality does not cease if the parties fail to reach an out-of-court agreement, and ultimately file a legal claim. In fact, case law has stated that: It is appropriate to order the judge to test the two lines of the claim, inasmuch as it has been communicated in these proceedings what has been the subject of pre-trial discussion with the transcription of the alleged arguments of the defendant. In this line, the plaintiff's position is not viable since in this case the plaintiff appears to be in breach of the duty of confidentiality by recording in the aforementioned document issues raised in the prior mandatory mediation (…) Section 7 of Law 26.589 clearly establishes the confidentiality of the issues related to the private mediation process. The confidentiality of mediation not only derives from a legal obligation but also from the very essence of mediation processes, hence, anything that has been said therein as well as any other element used in that instance cannot leave such sphere and, in that order, cannot be added to the judicial file”¹.

Finally, in light of Section 10 of the Federal Mediation and Conciliation Law, if the mediators act in collaboration with professionals trained in disciplines related to the conflict that is the subject matter of the mediation, these professionals “will act as assistants, under the direction and responsibility of the intervening mediator, and will be subject to the provisions of the present law and its regulations”. Therefore, these professionals shall also be subjected to mediation privilege.

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¹ Argentine Commercial Chamber (Panel A), Malandra Jorge Alejandro Vs. Mercado Libre S.R.L. Ruling dated on March 31, 2016.

Settlement negotiation privilege is not recognized pers se under Argentine Law. Nevertheless, it is considered to be covered by ACP, due to the broad terms in which ACP is recognized under Argentine law (please see answer to question I.A.1).In this regard, one scholar has affirmed that: “Professional secrecy requires the lawyer to keep secret the information that his/her clients entrust to him/her (…) it is a duty that not only covers the client's confidences to his/her lawyer, but also extends to those of the adversary, colleagues, third parties and those made in conciliation or negotiation meetings”.¹

If the settlement negotiation is conducted within the framework of a mediation proceeding, then it will be subject to privilege according to Section 7 (Subsection e) and 8 of the Federal Mediation and Conciliation Law No. 26.589 (applicable to cases filed before federal courts and National courts seated in the City of Buenos Aires).

With respect to the parties involved in a settlement negotiation, scholars have considered, in connection to Section 922 of the National Civil and Commercial Code ("CCC"),² that the general rule is “that the information handled during the negotiation is not confidential, unless it is expressly so qualified by the party supplying it, or a confidentiality agreement has been signed, which is often the case in international business”.³

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¹ Agustín Sojo, Professional secrecy and the protection of privacy in family lawsuits. Online quote: Cita: TR LALEY AR/DOC/1123/2019.

² Section 922 of the CCC provides that: “If during the negotiations, one of the parts facilitates to the other information with confidential character, the one that received it has the duty not to reveal it and not to use it inappropriately in its own interest. The party who breaches this duty is obliged to repair the damage suffered by the other party and, if he has obtained an undue advantage from the confidential information, he is obliged to compensate the other party to the extent of his own enrichment”.

³ Julio César Rivera and Graciela Medina, Annotated Civil and Commercial Code of the Nation, Vol. III.