Lex Mundi Global Attorney-Client Privilege Guide |
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Mexico |
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(Latin America/Caribbean)
Firm
Basham, Ringe Y Correa, S.C.
Contributors
Alejandro Catalá Guerrero |
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| Is the ACP recognized in your jurisdiction? | Yes. Mexican law recognizes the notion of ACP, even though it does not use the denomination of ACP. The law uses expressions such as: “professional secret”, “classified/confidential/reserved communication”, “confidentiality duty”. |
| 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? | No. Mexican civil and criminal proceedings codes follow the notions mentioned in our response to "Is the ACP recognized in your jurisdiction?" above, and government authorities cannot require disclosure of ACP communications, nor of legal work product. |
| 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.) | A corporation is a legal entity that can only act through natural persons, i.e.: its directors, officers and representatives. Therefore, under Mexican law and in our opinion, these individuals should be considered as the “client” for purposes of the ACP. Also, partners or shareholders of a corporate entity can be deemed as “clients”, even though their voting rights do not allow them to have control of 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. Mexican law does not make a distinction between in-house and outside counsel. Article 90 of the Federal Code of Civil Proceeding ("FCCP") contains the following general rule: third parties are obliged to appear as witnesses and/or produce things or documents in their possession; and also the exception to the above, namely those individuals bound by professional secret when the purpose is to gather evidence against the party they are related to. Consistent with the above, articles 276 and 362 of the National Code of Penal Proceedings ("NCPP") forbid, respectively, the admission as evidence of communications protected by the confidentiality duty; and testimony of individuals bound by the same duty in regard to the information they have obtained as a result of their profession, such as priests, attorneys, doctors, etc. |
| Civil Law Jurisdictions: May in-house counsel assert privilege or professional confidentiality? | Yes, see our response to "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: Is in-house counsel allowed to be active members of your jurisdiction’s bar? | Yes, in-house counsel is allowed to be active members of the Mexico bar. |
| Is the common interest doctrine recognized in your jurisdiction? | Yes, since otherwise the ACP would be rendered nugatory in joint defense and multi-party litigation cases. Further, article 232 of the Federal Penal Code ("FPC") defines as a criminal offense the assistance provided by an attorney to opposing parties in a specific case, or on related cases. |
| How is the doctrine articulated in your jurisdiction? | See our response to "Is the common interest doctrine recognized in your jurisdiction?". |
| Must a common interest agreement be in writing? | No, it is not necessary. |
| Is litigation funding permitted in your jurisdiction? Are there any professional rules in this respect? | This notion is not regulated by Mexican law; however and according to contract rules, there is no impediment for a party to a litigation to contract funding/financing; and such contract should be deemed to be of commercial nature. |
| Have the courts in your jurisdiction addressed whether communications with litigation funders may be protected by the ACP or the work-product protection | We are not aware of any court precedents in this regard. In our opinion, communications with litigation funders are not protected by the ACP, and there is no work product protection either. |
| Is the crime-fraud exception recognized in your jurisdiction? | Yes, the crime-fraud exception is recognized in Mexico. |
| What statutes or key court decisions articulate the crime-fraud exception in your jurisdiction? | Federal and state penal codes govern this notion. Article 13 of FPC establishes that those individuals who jointly agree to commit a criminal offense, and those who assist in its perpetration have criminal liability. Also, there are court precedents upholding this notion. |
| 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, consistent with response to "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?" above, the work product of professionals to prepare for litigation includes the information received by the client and any other relevant factors considered by said professionals. |
| What are the elements of the protection in your jurisdiction? | Mexican law does not specify the elements. They are to be obtained from the notions of the profession involved, and the activity (ies) carried out by the professional (s) on behalf of the client. |
| Does your jurisdiction recognize an accountant-client privilege? | Mexican law does not specifically refer to accountant-client privilege; however, considering the provisions of the FCCP and the NCPP, in our opinion, this privilege extends to and includes accountants. This criterion is supported by, at least, one judicial precedent. It is pertinent to mention that, since the Mexican legal system is essentially based on codes and statutes, the basic work of the courts is aimed at interpreting the law or examine the factual situation vis-a-vis the applicable legal provisions; thus, in regard to certain notions, such as professional-client privilege, few precedents exist. |
| Does your jurisdiction recognize a mediation privilege? | Yes, Mexico recognizes a mediation privilege. |
| Does your jurisdiction recognize a settlement negotiation privilege? | Yes, Mexico recognizes a settlement negotiation privilege. |
Lex Mundi Global Attorney-Client Privilege Guide
Mexico
(Latin America/Caribbean) Firm Basham, Ringe Y Correa, S.C.Contributors Alejandro Catalá Guerrero
Updated 25 Aug 2021Yes. Mexican law recognizes the notion of ACP, even though it does not use the denomination of ACP. The law uses expressions such as: “professional secret”, “classified/confidential/reserved communication”, “confidentiality duty”.
Not applicable.
No. Mexican civil and criminal proceedings codes follow the notions mentioned in our response to "Is the ACP recognized in your jurisdiction?" above, and government authorities cannot require disclosure of ACP communications, nor of legal work product.
A corporation is a legal entity that can only act through natural persons, i.e.: its directors, officers and representatives. Therefore, under Mexican law and in our opinion, these individuals should be considered as the “client” for purposes of the ACP. Also, partners or shareholders of a corporate entity can be deemed as “clients”, even though their voting rights do not allow them to have control of the company.
No. Mexican law does not make a distinction between in-house and outside counsel.
Article 90 of the Federal Code of Civil Proceeding ("FCCP") contains the following general rule: third parties are obliged to appear as witnesses and/or produce things or documents in their possession; and also the exception to the above, namely those individuals bound by professional secret when the purpose is to gather evidence against the party they are related to.
Consistent with the above, articles 276 and 362 of the National Code of Penal Proceedings ("NCPP") forbid, respectively, the admission as evidence of communications protected by the confidentiality duty; and testimony of individuals bound by the same duty in regard to the information they have obtained as a result of their profession, such as priests, attorneys, doctors, etc.
Yes, see our response to "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?" .
Yes, in-house counsel is allowed to be active members of the Mexico bar.
Yes, since otherwise the ACP would be rendered nugatory in joint defense and multi-party litigation cases. Further, article 232 of the Federal Penal Code ("FPC") defines as a criminal offense the assistance provided by an attorney to opposing parties in a specific case, or on related cases.
See our response to "Is the common interest doctrine recognized in your jurisdiction?".
No, it is not necessary.
This notion is not regulated by Mexican law; however and according to contract rules, there is no impediment for a party to a litigation to contract funding/financing; and such contract should be deemed to be of commercial nature.
We are not aware of any court precedents in this regard. In our opinion, communications with litigation funders are not protected by the ACP, and there is no work product protection either.
Yes, the crime-fraud exception is recognized in Mexico.
Federal and state penal codes govern this notion. Article 13 of FPC establishes that those individuals who jointly agree to commit a criminal offense, and those who assist in its perpetration have criminal liability. Also, there are court precedents upholding this notion.
Yes, consistent with response to "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?" above, the work product of professionals to prepare for litigation includes the information received by the client and any other relevant factors considered by said professionals.
Mexican law does not specify the elements. They are to be obtained from the notions of the profession involved, and the activity (ies) carried out by the professional (s) on behalf of the client.
Mexican law does not specifically refer to accountant-client privilege; however, considering the provisions of the FCCP and the NCPP, in our opinion, this privilege extends to and includes accountants. This criterion is supported by, at least, one judicial precedent. It is pertinent to mention that, since the Mexican legal system is essentially based on codes and statutes, the basic work of the courts is aimed at interpreting the law or examine the factual situation vis-a-vis the applicable legal provisions; thus, in regard to certain notions, such as professional-client privilege, few precedents exist.
Yes, Mexico recognizes a mediation privilege.
Yes, Mexico recognizes a settlement negotiation privilege.