	Lex Mundi Global Attorney-Client Privilege Guide
	Peru
	(Latin America/Caribbean) Firm Estudio Olaechea Contributors Manuel Villa Garcia Updated 20 Feb 2020
Is the ACP recognized in your jurisdiction?	Yes, first it is recognized as a general right in numeral 18 of 2^nd article of our Constitution. “Article 2. - Everyone has the right to: (…) 18. Keep in reserve their political, philosophical, religious convictions or of any other nature, as well as the professional secret.” Secondly, it is recognized in 30^th article of the Code of Ethics of the Lima Bar Association.
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...	It is recognized, review point "Is the ACP recognized in your jurisdiction?"
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 in the application of ACP in civil and criminal proceedings. Both of them are regulated by our Constitution and the Code of Ethics of the Lima Bar Association. In both cases, attorneys have the right and obligation to oppose to the government requirement to disclose communications and legal work products. The only exceptions to this opposition are: To prevent the client from harming the physical or psychological integrity or the life of a person. Compliance for the prevention of money laundering and financing of terrorism.
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 tests to determine who within a corporation is considered the client for ACP. In Peru, all communications with corporate employees, officers, and directors are protected by the ACP.
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, according to the Code of Ethics of the Lima Bar association there is no higher burden for the in-house counsel. However, companies can implement higher burdens that are part of their internal politics.
Civil Law Jurisdictions: May in-house counsel assert privilege or professional confidentiality?	Yes, as we mentioned before it is a Constitutional right and the Code of Ethics of the Lima Bar Association does not make any distinction between in-house or out-house counsels.
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?	Yes, this is recognized in the Code of Ethics of the Lima Bar Association. This rule authorizes the lawyer to disclose information protected by professional secrecy when he has the prior, express and written consent of the client.
How is the doctrine articulated in your jurisdiction?	This doctrine is regulated in article 36 of the Code of Ethics of the Lima Bar Association. ‘’Article 36.- Optional disclosure The lawyer may disclose the information protected by professional secrecy when (a) He has the express prior informed consent of the client, which must be in writing.’’
Must a common interest agreement be in writing?	Yes, any agreement for the disclosure of confidential information obtained from the attorney-client relationship must be in writing.
Is litigation funding permitted in your jurisdiction? Are there any professional rules in this respect?	Yes, it is permitted. However, it is not a common practice. Litigation funding is a new practice in our jurisdiction. Therefore, there are no specific laws regarding it. For now, it is ruled by our funding general laws. Having that in consideration, each professional that participates in these funds must follow the professional rules of their association. In our case the rules of the Lima Bar Association.
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 just beginning in our jurisdiction. Therefore, none tribunal has declared that the communications in it are protected by the ACP yet. Nevertheless, ACP is recognized in our Constitution. As a consequence, all the professionals involved in litigation funding are protected by the professional secret.
Is the crime-fraud exception recognized in your jurisdiction?	In Peru, Attorney-Client Privilege (ACP) is regulated by the Code of Ethics of the Lima Bar Association. This code establishes as a general precept that the lawyer must protect and maintain the strictest confidentiality of the facts and information referred to a client or potential client, which he knows on the occasion of the professional relationship. Nevertheless, the Code of Ethics establishes that, exceptionally and compulsorily, to prevent the client from causing serious harm to the physical or psychological integrity or the life of a person, the lawyer must disclose to the competent authority information protected by professional privilege. This, as long as it is previously required by the authority. In addition to this, the Superintendence of Banking and Insurance (SBS), by Res. No. 789-2018, orders that lawyers who carry out on behalf of a third party the purchase and sale of real estate; management of money, securities, accounts of the financial system and other assets; organization of contributions for the creation, operation or management of legal persons; creation, management and/or reorganization of legal persons or other legal structures and the purchase and sale of shares or holdings in legal persons, must implement a system for prevention of money laundering and financing of terrorism. As a consequence of the implementation of the prevention system, lawyers must record all individual operations and inform suspicious operations, which are not subject to the professional secrecy stipulated in the Code of Ethics. Therefore, in Peru, the information obtained in the client-lawyer relationship can only be disclosed in cases where there is a possibility of commission of crimes against the life and health of another and in the case concerning compliance for the prevention of money laundering and financing of terrorism.
What statutes or key court decisions articulate the crime-fraud exception in your jurisdiction?	In Peru, the exception to client-lawyer confidentiality is regulated in Article 37 of the Code of Ethics of the Lima Bar Association. ‘’Article 37.- Mandatory disclosure The lawyer shall disclose to the competent authority the information protected by professional secrecy in order to prevent the client from harming the physical or psychological integrity or the life of a person.’’ Also, the SBS in its Resolution 789-2018, which establishes the obligation to lawyers to report their clients´ operations according to the implementation of the prevention system, regulates that the report of operations are not subject to attorney-client confidentiality ‘’ Supplementary Final Legislation Article 4.- 5. For the purposes of the Registry of Operations (RO), the regulated entities, lawyers and accountants, must record all the following individual operations (...) The information provided to the FIU-Peru through the RO is not subject to professional privilege.’’ Furthermore, in Peru, there is no case related to professional secrecy that establishes binding jurisprudence.
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, this is recognized in article 30 Code of Ethics of the Lima Bar Association.
What are the elements of the protection in your jurisdiction?	The elements of the protection of litigation privilege // work product doctrine are included in Chapter Three of the Code of Ethics of Lima Bar Association. They are: Best interest of the client. Communication. That was intended to be and is kept confidential, unless the client approve to disclaim information. Between each attorney related in the case and client. Made for the purpose of obtaining or providing legal advice to the client.
Does your jurisdiction recognize an accountant-client privilege?	Yes, it does. In our jurisdiction, we have a Code of Ethic of Accountants, where one of the fundamental principles is the accountant-client privilege.
Does your jurisdiction recognize a mediation privilege?	Yes, it does, in article 44th of the mediation statement.
Does your jurisdiction recognize a settlement negotiation privilege?	Settlement processes must be public according to our jurisdiction. Nevertheless, there are some matters that can have a confidential treatment in those cases the signature of a confidential agreement is needed.

Lex Mundi Global Attorney-Client Privilege Guide

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Is the ACP recognized in your jurisdiction?

Yes, first it is recognized as a general right in numeral 18 of 2^nd article of our Constitution.

“Article 2. - Everyone has the right to:

(…)

18. Keep in reserve their political, philosophical, religious convictions or of any other nature, as well as the professional secret.”

Secondly, it is recognized in 30^th article of the Code of Ethics of the Lima Bar Association.

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...

It is recognized, review point "Is the ACP recognized in your jurisdiction?"

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 in the application of ACP in civil and criminal proceedings. Both of them are regulated by our Constitution and the Code of Ethics of the Lima Bar Association.

In both cases, attorneys have the right and obligation to oppose to the government requirement to disclose communications and legal work products.

The only exceptions to this opposition are:

To prevent the client from harming the physical or psychological integrity or the life of a person.
Compliance for the prevention of money laundering and financing of terrorism.

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 tests to determine who within a corporation is considered the client for ACP.

In Peru, all communications with corporate employees, officers, and directors are protected by the ACP.

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, according to the Code of Ethics of the Lima Bar association there is no higher burden for the in-house counsel.

However, companies can implement higher burdens that are part of their internal politics.

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

Yes, as we mentioned before it is a Constitutional right and the Code of Ethics of the Lima Bar Association does not make any distinction between in-house or out-house counsels.

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?

Yes, this is recognized in the Code of Ethics of the Lima Bar Association. This rule authorizes the lawyer to disclose information protected by professional secrecy when he has the prior, express and written consent of the client.

How is the doctrine articulated in your jurisdiction?

This doctrine is regulated in article 36 of the Code of Ethics of the Lima Bar Association.

‘’Article 36.- Optional disclosure
The lawyer may disclose the information protected by professional secrecy when
(a) He has the express prior informed consent of the client, which must be in writing.’’

Must a common interest agreement be in writing?

Yes, any agreement for the disclosure of confidential information obtained from the attorney-client relationship must be in writing.

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

Yes, it is permitted. However, it is not a common practice.

Litigation funding is a new practice in our jurisdiction. Therefore, there are no specific laws regarding it. For now, it is ruled by our funding general laws.

Having that in consideration, each professional that participates in these funds must follow the professional rules of their association. In our case the rules of the Lima Bar Association.

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 just beginning in our jurisdiction. Therefore, none tribunal has declared that the communications in it are protected by the ACP yet.

Nevertheless, ACP is recognized in our Constitution. As a consequence, all the professionals involved in litigation funding are protected by the professional secret.

Is the crime-fraud exception recognized in your jurisdiction?

In Peru, Attorney-Client Privilege (ACP) is regulated by the Code of Ethics of the Lima Bar Association. This code establishes as a general precept that the lawyer must protect and maintain the strictest confidentiality of the facts and information referred to a client or potential client, which he knows on the occasion of the professional relationship.

Nevertheless, the Code of Ethics establishes that, exceptionally and compulsorily, to prevent the client from causing serious harm to the physical or psychological integrity or the life of a person, the lawyer must disclose to the competent authority information protected by professional privilege. This, as long as it is previously required by the authority.

In addition to this, the Superintendence of Banking and Insurance (SBS), by Res. No. 789-2018, orders that lawyers who carry out on behalf of a third party the purchase and sale of real estate; management of money, securities, accounts of the financial system and other assets; organization of contributions for the creation, operation or management of legal persons; creation, management and/or reorganization of legal persons or other legal structures and the purchase and sale of shares or holdings in legal persons, must implement a system for prevention of money laundering and financing of terrorism. As a consequence of the implementation of the prevention system, lawyers must record all individual operations and inform suspicious operations, which are not subject to the professional secrecy stipulated in the Code of Ethics.

Therefore, in Peru, the information obtained in the client-lawyer relationship can only be disclosed in cases where there is a possibility of commission of crimes against the life and health of another and in the case concerning compliance for the prevention of money laundering and financing of terrorism.

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

In Peru, the exception to client-lawyer confidentiality is regulated in Article 37 of the Code of Ethics of the Lima Bar Association.

‘’Article 37.- Mandatory disclosure
The lawyer shall disclose to the competent authority the information protected by professional secrecy in order to prevent the client from harming the physical or psychological integrity or the life of a person.’’

Also, the SBS in its Resolution 789-2018, which establishes the obligation to lawyers to report their clients´ operations according to the implementation of the prevention system, regulates that the report of operations are not subject to attorney-client confidentiality

‘’ Supplementary Final Legislation
Article 4.-
5. For the purposes of the Registry of Operations (RO), the regulated entities, lawyers and accountants, must record all the following individual operations (...) The information provided to the FIU-Peru through the RO is not subject to professional privilege.’’

Furthermore, in Peru, there is no case related to professional secrecy that establishes binding jurisprudence.

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, this is recognized in article 30 Code of Ethics of the Lima Bar Association.

What are the elements of the protection in your jurisdiction?

The elements of the protection of litigation privilege // work product doctrine are included in Chapter Three of the Code of Ethics of Lima Bar Association. They are:

Best interest of the client.
Communication.
That was intended to be and is kept confidential, unless the client approve to disclaim information.
Between each attorney related in the case and client.
Made for the purpose of obtaining or providing legal advice to the client.

Does your jurisdiction recognize an accountant-client privilege?

Yes, it does. In our jurisdiction, we have a Code of Ethic of Accountants, where one of the fundamental principles is the accountant-client privilege.

Does your jurisdiction recognize a mediation privilege?

Yes, it does, in article 44th of the mediation statement.

Does your jurisdiction recognize a settlement negotiation privilege?

Settlement processes must be public according to our jurisdiction.

Nevertheless, there are some matters that can have a confidential treatment in those cases the signature of a confidential agreement is needed.

Lex Mundi Global Attorney-Client Privilege Guide

Peru

Lex Mundi Global Attorney-Client Privilege Guide

Peru

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