	Lex Mundi Global Attorney-Client Privilege Guide
	Costa Rica
	(Latin America/Caribbean) Firm Facio & Cañas Contributors Sergio Solera Updated 10 Sep 2021
Is the ACP recognized in your jurisdiction?	Yes, ACP is recognized in Costa Rica.
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...	Not applicable.
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?	The only difference between civil and criminal proceedings is that in criminal proceedings the Judge can assess if the ACP is correctly invoked by a witness, and if not, force the person to reveal the information required.
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 are no specific rules with regard to ACP in corporations.
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?	There are no specific rules regarding ACP from the in-house counsel; however, the in-house counsel must be an authorized attorney before the bar association to assert the ACP.
Civil Law Jurisdictions: May in-house counsel assert privilege or professional confidentiality?	If the in-house counsel is an authorized attorney before the bar association, he/she has the right and obligation to assert ACP. There are no specific rules regarding the ACP for in-house counsels.
Civil Law Jurisdictions: Is in-house counsel allowed to be active members of your jurisdiction’s bar?	In-house counsels must be active members of the bar association to be allowed to practice law even as in-house counsel.
Is the common interest doctrine recognized in your jurisdiction?	Such doctrine is not recognized in our jurisdiction.
How is the doctrine articulated in your jurisdiction?	Not applicable.
Must a common interest agreement be in writing?	Not applicable.
Is litigation funding permitted in your jurisdiction? Are there any professional rules in this respect?	Litigation funding is not allowed in Costa Rica.
Have the courts in your jurisdiction addressed whether communications with litigation funders may be protected by the ACP or the work-product protection	Litigation funding is not allowed in Costa Rica.
Is the crime-fraud exception recognized in your jurisdiction?	Yes, the crime-fraud exception is recognized in Costa Rica.
What statutes or key court decisions articulate the crime-fraud exception in your jurisdiction?	The crime-fraud exception is established in article 43 of the “Legal, Moral and Ethical Duties from the Law Professional Code” that states: “If a client communicates to his or her lawyer the intention to commit a crime, this confidence is not a matter of professional secrecy, therefore, once the means of dissuasion have been exhausted, the attorney must make the disclosures needed to prevent the crime.”
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)?)	There is no specific rules/doctrine in our jurisdiction that protects materials prepared in anticipation of litigation or for trial. Nevertheless, such materials are protected within the general ACP.
What are the elements of the protection in your jurisdiction?	All the confidential information that is given to an attorney by reason of the consultation or defense (relationship of trust in the attorney-client relationship) and only in relation to the data entrusted by the clients in the development of that activity.
Does your jurisdiction recognize an accountant-client privilege?	Yes.
Does your jurisdiction recognize a mediation privilege?	Yes.
Does your jurisdiction recognize a settlement negotiation privilege?	Yes.

Lex Mundi Global Attorney-Client Privilege Guide

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Is the ACP recognized in your jurisdiction?

Yes, ACP is recognized in Costa Rica.

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...

Not applicable.

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?

The only difference between civil and criminal proceedings is that in criminal proceedings the Judge can assess if the ACP is correctly invoked by a witness, and if not, force the person to reveal the information required.

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 are no specific rules with regard to ACP in corporations.

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?

There are no specific rules regarding ACP from the in-house counsel; however, the in-house counsel must be an authorized attorney before the bar association to assert the ACP.

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

If the in-house counsel is an authorized attorney before the bar association, he/she has the right and obligation to assert ACP. There are no specific rules regarding the ACP for in-house counsels.

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

In-house counsels must be active members of the bar association to be allowed to practice law even as in-house counsel.

Is the common interest doctrine recognized in your jurisdiction?

Such doctrine is not recognized in our jurisdiction.

How is the doctrine articulated in your jurisdiction?

Not applicable.

Must a common interest agreement be in writing?

Not applicable.

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

Litigation funding is not allowed in Costa Rica.

Have the courts in your jurisdiction addressed whether communications with litigation funders may be protected by the ACP or the work-product protection

Litigation funding is not allowed in Costa Rica.

Is the crime-fraud exception recognized in your jurisdiction?

Yes, the crime-fraud exception is recognized in Costa Rica.

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

The crime-fraud exception is established in article 43 of the “Legal, Moral and Ethical Duties from the Law Professional Code” that states:

“If a client communicates to his or her lawyer the intention to commit a crime, this confidence is not a matter of professional secrecy, therefore, once the means of dissuasion have been exhausted, the attorney must make the disclosures needed to prevent the crime.”

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)?)

There is no specific rules/doctrine in our jurisdiction that protects materials prepared in anticipation of litigation or for trial. Nevertheless, such materials are protected within the general ACP.

What are the elements of the protection in your jurisdiction?

All the confidential information that is given to an attorney by reason of the consultation or defense (relationship of trust in the attorney-client relationship) and only in relation to the data entrusted by the clients in the development of that activity.

Does your jurisdiction recognize an accountant-client privilege?

Yes.

Does your jurisdiction recognize a mediation privilege?

Yes.

Does your jurisdiction recognize a settlement negotiation privilege?

Yes.

Lex Mundi Global Attorney-Client Privilege Guide

Costa Rica

Lex Mundi Global Attorney-Client Privilege Guide

Costa Rica

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