	Lex Mundi Global Attorney-Client Privilege Guide
	Ecuador
	(Latin America/Caribbean) Firm Pérez Bustamante & Ponce Contributors Patricio Quevedo Updated 09 Sep 2021
Is the ACP recognized in your jurisdiction?	Yes, ACP is recognized in several laws. The Organic Code of the Judiciary states that it is forbidden for lawyers to reveal client protected information (§ 335.1); the Organic Criminal Code also states that is a crime to reveal this protected information (§ 179); the Law of the Federation of Lawyers of Ecuador states that lawyers may be sanctioned for violating attorney-client privilege (§ 23 (f)).
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 it is expressly recognized, subsidiary rules do not govern the specific ACP regulations.
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. Currently, the Organic Criminal Code, which is the only law responsible for regulating criminal conduct, does not make such a distinction.
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 test present in regard to corporations, nor is there significant case law. While, for instance, in the case of the legal representative of a company there should be no doubt, other employees or representatives should also be regarded as disclosing protected information if they communicate matters pertaining to the company.
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, no such test exists. The general rules apply to all lawyers. The fact that in-house counsel is often in an employment relationship with the company should not increase the burden. Also, if he/she is an employee, alternatively the Labor Code applies regarding the obligation to not disclose secrets of the employer (§ 45 (h)).
Civil Law Jurisdictions: May in-house counsel assert privilege or professional confidentiality?	Yes, the standard for secrecy depends on the: (…) status or trade, job, profession, or art (…), more so than the type of relationship (labor or services) of the attorney.
Civil Law Jurisdictions: Is in-house counsel allowed to be active members of your jurisdiction’s bar?	Yes, there is no distinction, they can fully act as admitted lawyers.
Is the common interest doctrine recognized in your jurisdiction?	Not expressly. Moreover, if the communication is made between lawyers with common interests, it will be understood that the communication does not release the recipient from the duty to maintain privilege.
How is the doctrine articulated in your jurisdiction?	Not expressly. Because privilege is a duty attached to lawyers in general, it is likely that such communications will remain privileged.
Must a common interest agreement be in writing?	There is no specific rule, but a conservative approach would be to have a written agreement in place.
Is litigation funding permitted in your jurisdiction? Are there any professional rules in this respect?	It is not forbidden, while unregulated. Litigation funding would be considered as a commercial endeavor for which there are no prohibitions. Within the realm of private law, funding should be regarded as possible.
Have the courts in your jurisdiction addressed whether communications with litigation funders may be protected by the ACP or the work-product protection	No, litigation funding is rather uncommon in Ecuador.
Is the crime-fraud exception recognized in your jurisdiction?	No. There are two rules in play regarding a potential crime-fraud exception, both contained in the Organic Criminal Code: Art. 422. Duty to report a crime. Crimes must be reported by those with an obligation to do so by express order of the law, particularly: (…) 1. A public official who in the exercise of his/her duties learns of the commission of an alleged crime against the efficiency of the government. Art. 424. Exemption from the duty to report. Nobody can be required to report their spouse, domestic partner or relatives up to the fourth degree of consanguinity or the second degree of affinity. Nor will this obligation exist when knowledge of the facts is protected by professional secrecy. While article 424 can be invoked by attorneys to contest the general duty to report criminal activities, this should not be construed as enabling active participation in criminal activities. Additionally, as stated in the General Organic Code of Procedure, lawyers may conscientiously object to continue rendering their services to any client (§ 44). Lastly, the only piece of legislation where a rule with a generally construed exception exists is the Law for Prevention of Money Laundering and Financing of Crimes: Art. 26. In no case can those with a reporting obligation invoke bank secrecy or privacy, or professional secrecy or tax secrecy, to deny access to or delay the handing over of the information requested within the scope of the jurisdiction of the Financial and Economic Analysis Unit ("UAFE"). However, those with a reporting obligation should not be considered to be lawyers of a person or corporation, but the person or corporation itself.
What statutes or key court decisions articulate the crime-fraud exception in your jurisdiction?	The aforementioned laws would be the principal regulations present in Ecuador.
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)?)	Yes. The Organic Code of the Judiciary states: Article 335. Prohibitions for Lawyers Representing Clients in a Case. The following is prohibited for lawyers representing clients in a case: Disclose confidential information of their clients, their documents or instructions; This provision should be interpreted as inclusive of all work products and materials pertaining to a specific client. Also, the duty to maintain privilege shall be understood broadly as the Organic Criminal Code uses terms like secrecy and information. Moreover, the Organic Criminal Code states that disclosure is a crime when the disclosure causes damage to a person. Therefore, work products could in fact contain valuable strategy or facts and should be considered as covered.
What are the elements of the protection in your jurisdiction?	The most specific provision is that of Article 335 of the Organic Code of the Judiciary. The double standard to consider should be (i) subjective: materials made with the participation of a lawyer, as a professional with a specific duty to maintain privilege; (ii) objective: the materials protected are especially those that, if disclosed, could affect the client.
Does your jurisdiction recognize an accountant-client privilege?	A rather old (1966) but still valid law, the Law of Accountants, states that accountants can be subject to sanctions by their Federation’s Honor Tribunal for violation of professional secrecy (§ 49 (g)). However, it is clear that in practice, attorney-client privilege has been more amply protected.
Does your jurisdiction recognize a mediation privilege?	Yes, Mediation proceedings are confidential by virtue of (§ 50) of the Arbitration and Mediation Law. The parties to mediation may waive confidentiality, but if no specific agreement exists the entire proceeding will be confidential, including the formulations for agreement, that cannot be used as evidence in any subsequent arbitral or judicial proceeding.
Does your jurisdiction recognize a settlement negotiation privilege?	Not expressly. (Private) settlements usually take the form of Settlement Agreements and while they have a force majeure effect, they are not directly confidential. Parties may impose confidentiality as a contractual obligation.

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Is the ACP recognized in your jurisdiction?

Yes, ACP is recognized in several laws. The Organic Code of the Judiciary states that it is forbidden for lawyers to reveal client protected information (§ 335.1); the Organic Criminal Code also states that is a crime to reveal this protected information (§ 179); the Law of the Federation of Lawyers of Ecuador states that lawyers may be sanctioned for violating attorney-client privilege (§ 23 (f)).

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 it is expressly recognized, subsidiary rules do not govern the specific ACP regulations.

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. Currently, the Organic Criminal Code, which is the only law responsible for regulating criminal conduct, does not make such a distinction.

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 test present in regard to corporations, nor is there significant case law. While, for instance, in the case of the legal representative of a company there should be no doubt, other employees or representatives should also be regarded as disclosing protected information if they communicate matters pertaining to the company.

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, no such test exists. The general rules apply to all lawyers. The fact that in-house counsel is often in an employment relationship with the company should not increase the burden. Also, if he/she is an employee, alternatively the Labor Code applies regarding the obligation to not disclose secrets of the employer (§ 45 (h)).

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

Yes, the standard for secrecy depends on the: (…) status or trade, job, profession, or art (…), more so than the type of relationship (labor or services) of the attorney.

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

Yes, there is no distinction, they can fully act as admitted lawyers.

Is the common interest doctrine recognized in your jurisdiction?

Not expressly. Moreover, if the communication is made between lawyers with common interests, it will be understood that the communication does not release the recipient from the duty to maintain privilege.

How is the doctrine articulated in your jurisdiction?

Not expressly. Because privilege is a duty attached to lawyers in general, it is likely that such communications will remain privileged.

Must a common interest agreement be in writing?

There is no specific rule, but a conservative approach would be to have a written agreement in place.

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

It is not forbidden, while unregulated. Litigation funding would be considered as a commercial endeavor for which there are no prohibitions. Within the realm of private law, funding should be regarded as possible.

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

No, litigation funding is rather uncommon in Ecuador.

Is the crime-fraud exception recognized in your jurisdiction?

No. There are two rules in play regarding a potential crime-fraud exception, both contained in the Organic Criminal Code:

Art. 422. Duty to report a crime. Crimes must be reported by those with an obligation to do so by express order of the law, particularly: (…)

1. A public official who in the exercise of his/her duties learns of the commission of an alleged crime against the efficiency of the government.

Art. 424. Exemption from the duty to report. Nobody can be required to report their spouse, domestic partner or relatives up to the fourth degree of consanguinity or the second degree of affinity.

Nor will this obligation exist when knowledge of the facts is protected by professional secrecy.

While article 424 can be invoked by attorneys to contest the general duty to report criminal activities, this should not be construed as enabling active participation in criminal activities.

Additionally, as stated in the General Organic Code of Procedure, lawyers may conscientiously object to continue rendering their services to any client (§ 44).

Lastly, the only piece of legislation where a rule with a generally construed exception exists is the Law for Prevention of Money Laundering and Financing of Crimes:

Art. 26. In no case can those with a reporting obligation invoke bank secrecy or privacy, or professional secrecy or tax secrecy, to deny access to or delay the handing over of the information requested within the scope of the jurisdiction of the Financial and Economic Analysis Unit ("UAFE").

However, those with a reporting obligation should not be considered to be lawyers of a person or corporation, but the person or corporation itself.

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

The aforementioned laws would be the principal regulations present in Ecuador.

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)?)

Yes. The Organic Code of the Judiciary states:

Article 335. Prohibitions for Lawyers Representing Clients in a Case.

The following is prohibited for lawyers representing clients in a case:

Disclose confidential information of their clients, their documents or instructions;

This provision should be interpreted as inclusive of all work products and materials pertaining to a specific client.

Also, the duty to maintain privilege shall be understood broadly as the Organic Criminal Code uses terms like secrecy and information. Moreover, the Organic Criminal Code states that disclosure is a crime when the disclosure causes damage to a person. Therefore, work products could in fact contain valuable strategy or facts and should be considered as covered.

What are the elements of the protection in your jurisdiction?

The most specific provision is that of Article 335 of the Organic Code of the Judiciary.

The double standard to consider should be (i) subjective: materials made with the participation of a lawyer, as a professional with a specific duty to maintain privilege; (ii) objective: the materials protected are especially those that, if disclosed, could affect the client.

Does your jurisdiction recognize an accountant-client privilege?

A rather old (1966) but still valid law, the Law of Accountants, states that accountants can be subject to sanctions by their Federation’s Honor Tribunal for violation of professional secrecy (§ 49 (g)). However, it is clear that in practice, attorney-client privilege has been more amply protected.

Does your jurisdiction recognize a mediation privilege?

Yes, Mediation proceedings are confidential by virtue of (§ 50) of the Arbitration and Mediation Law. The parties to mediation may waive confidentiality, but if no specific agreement exists the entire proceeding will be confidential, including the formulations for agreement, that cannot be used as evidence in any subsequent arbitral or judicial proceeding.

Does your jurisdiction recognize a settlement negotiation privilege?

Not expressly. (Private) settlements usually take the form of Settlement Agreements and while they have a force majeure effect, they are not directly confidential. Parties may impose confidentiality as a contractual obligation.

Lex Mundi Global Attorney-Client Privilege Guide

Ecuador

Lex Mundi Global Attorney-Client Privilege Guide

Ecuador

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