	Lex Mundi Global Attorney-Client Privilege Guide
	Chile
	(Latin America/Caribbean) Firm Claro & Cia., Abogados Contributors Nicolás Luco Updated 25 Mar 2020
Is the ACP recognized in your jurisdiction?	Yes
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...	N/A
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 distinction of the scope of the ACP in both settings, but in criminal proceedings, if the attorney is charged with being an accomplice of the crime under investigation, the authorities may seize the attorney documents.
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 special test to determine who is the client for the purposes of the ACP in the corporate context, as all information related to the client received by the attorney is protected.
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
Civil Law Jurisdictions: May in-house counsel assert privilege or professional confidentiality?	Yes
Civil Law Jurisdictions: Is in-house counsel allowed to be active members of your jurisdiction’s bar?	Yes
Is the common interest doctrine recognized in your jurisdiction?	Not explicitly.
How is the doctrine articulated in your jurisdiction?	N/A
Must a common interest agreement be in writing?	N/A
Is litigation funding permitted in your jurisdiction? Are there any professional rules in this respect?	Are there any professional rules in this respect? There are no rules prohibiting litigation funding. The ethics code allows a third party to pay the attorney’s fees but take care to avoid any conflict of interest in such a situation.
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.
What statutes or key court decisions articulate the crime-fraud exception in your jurisdiction?	The exception is included in the Code of Ethics of the Chilean Bar Association, which has been regarded as mandatory by the Chilean Supreme Court. It provides that lawyers shall disclose the information if disclosure would avoid a crime from being perpetrated.
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)?)	Such information would be covered by the general ACP.
What are the elements of the protection in your jurisdiction?	There are no special elements, all information related to the client received or produced by the attorney is protected.
Does your jurisdiction recognize an accountant-client privilege?	No.
Does your jurisdiction recognize a mediation privilege?	Not specifically. If mediation is conducted by an attorney, ACP may be invoked.
Does your jurisdiction recognize a settlement negotiation privilege?	The Code of Professional Ethics forbid a lawyer to disclose at trial any information received from the other party’s counsel during failed settlement negotiations.

Lex Mundi Global Attorney-Client Privilege Guide

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Is the ACP recognized in your jurisdiction?

Yes

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...

N/A

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 distinction of the scope of the ACP in both settings, but in criminal proceedings, if the attorney is charged with being an accomplice of the crime under investigation, the authorities may seize the attorney documents.

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 special test to determine who is the client for the purposes of the ACP in the corporate context, as all information related to the client received by the attorney is protected.

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: May in-house counsel assert privilege or professional confidentiality?

Yes

Civil Law Jurisdictions: Is in-house counsel allowed to be active members of your jurisdiction’s bar?

Yes

Is the common interest doctrine recognized in your jurisdiction?

Not explicitly.

How is the doctrine articulated in your jurisdiction?

N/A

Must a common interest agreement be in writing?

N/A

Is litigation funding permitted in your jurisdiction? Are there any professional rules in this respect?

Are there any professional rules in this respect? There are no rules prohibiting litigation funding. The ethics code allows a third party to pay the attorney’s fees but take care to avoid any conflict of interest in such a situation.

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.

What statutes or key court decisions articulate the crime-fraud exception in your jurisdiction?

The exception is included in the Code of Ethics of the Chilean Bar Association, which has been regarded as mandatory by the Chilean Supreme Court. It provides that lawyers shall disclose the information if disclosure would avoid a crime from being perpetrated.

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)?)

Such information would be covered by the general ACP.

What are the elements of the protection in your jurisdiction?

There are no special elements, all information related to the client received or produced by the attorney is protected.

Does your jurisdiction recognize an accountant-client privilege?

No.

Does your jurisdiction recognize a mediation privilege?

Not specifically. If mediation is conducted by an attorney, ACP may be invoked.

Does your jurisdiction recognize a settlement negotiation privilege?

The Code of Professional Ethics forbid a lawyer to disclose at trial any information received from the other party’s counsel during failed settlement negotiations.

Lex Mundi Global Attorney-Client Privilege Guide

Chile

Lex Mundi Global Attorney-Client Privilege Guide

Chile

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