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[null,"Prepared By:","Contributors:"]
[null,"Nestor Nestor Diculescu Kingston Petersen","Adriana Gaspar"]
[]
[]
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["Lex Mundi Global Attorney-Client Privilege Guide"]
[]
["Report Generated: 5/1/2025"]
[]
["View your report results on next tab"]

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["Question","Romania"]
["Attorney-Client/Solicitor-Client Privilege (ACP)"]
["Is the ACP recognized in your jurisdiction?","Most of ACP’s fundamentals are regulated under Romanian legislation governing the lawyers’ rights and obligations during their interaction with various third parties, whether individuals or state authorities, regarding the aspects pertaining to the legal assistance they provide. Mechanisms for the protection of professional confidentiality are recognized to the benefit of clients retaining Romanian lawyers. However, there is no APC all-around institution or legal doctrine, neither well-established jurisprudence and, similarly to other European countries, Romania is seeing relatively aggressive attempts by various authorities to limit the scope of protected legal assistance and protected communications.\n"]
["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 in a civil proceeding?\n\nNote: This question is directed primarily to civil law jurisdictions that do not recognize common law jurisdictions’ privilege doctrines.","According to Article 11 of the \nLaw regulating the organization and exercise of the lawyers’ profession (\nLaw no.51/1995, hereinafter, the “\nLaw”), a lawyer is obliged to professional confidentiality as regards any aspect of a mandate entrusted to him or her, except as otherwise provided by law. Furthermore, according to Article 45 para. (6) of the \nLaw, breach of confidentiality regarding any private information of the client, including disclosure of an operational or commercial secret which became known to the lawyer during the exercise of the legal profession, qualifies as a criminal offense carrying 1 to 5 years of imprisonment.\nIn line with the above, Article 317 para. (1) Item 1 of the \nCivil Procedure Code lists lawyers among the professionals exempted from the obligation to testify as witnesses regarding aspects that have become known to them during the exercise of their duties. Testimony is possible if the client has released the lawyer from his or her obligation of confidentiality.\n"]
["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?","Article 45 para.(3) of the \nLaw stipulates an all-encompassing prohibition for the lawyer to testify or to provide information to any individual or authority in relation to a matter instrumented thereby other than based on the client’s express prior written consent. The \nLaw also recognizes the inviolability of professional documents and paperwork that are in the possession or in the office of a lawyer. Under Article 34 para. (2) thereof, it is also prohibited to seize and confiscate, as part of criminal law proceedings, documents including communications between the client and the lawyer and those created by the lawyer or including the notes or other writings made by the lawyer in preparing the defense for the client. Interdiction also covers the technical supervision or taping of a lawyer’s phone calls and the interception of professional correspondence, but under very specific circumstances and in strict compliance with the procedure provided by law.\n"]
["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.)","It is generally agreed that for the purposes of determining the documents, information, correspondence and phone calls under protection, the client is the person legally representing the entity that benefits from the services of the lawyer (as indicated in the legal assistance agreement) or the person empowered by such entity to seek legal services on its behalf.\n"]
["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?","The protection of the law is generally deemed to apply to the relationship between clients and external legal counsels. In-house counsels are subject to confidentiality obligations that might be deemed to restrict the obligation thereof to testify in criminal or civil proceedings. It is of note, however, European Court of Justice decision – Case C-550/07 P, Akzo Nobel Chemicals Ltd and Akcros Chemicals Ltd vs. European Commission, which found that in respect of competition-related matters communications with the in-house counsel should not be deemed privileged.\n"]
["Civil Law Jurisdictions: May in-house counsel assert privilege or professional confidentiality?","The activity of the in-house counsels does not fall under the scope of the Law and, thus, the legal provisions protecting the confidentiality of the information and documents obtained during the exercise of the lawyers’ profession are not applicable thereto. Still, in-house counsels have a duty of confidentiality under the legislation governing the exercise of their profession and, arguably, they are subject to an interdiction to testify in criminal or civil proceedings, unless consented by their employer.\n"]
["Civil Law Jurisdictions: Is in-house counsel allowed to be active members of your jurisdiction’s bar?","The\n Law requires the suspension of the capacity as a member of the bar for as long as the holder thereof is acting as in-house counsel.\n"]
["Is the common interest doctrine recognized in your jurisdiction?","The common interest doctrine is not articulated under Romanian law.\n"]
["How is the doctrine articulated in your jurisdiction?","If the client deems that the interests thereof would be served by the disclosure of the documents or information provided to or produced by his/her/its lawyer to anyone else, including a person having joint interests therewith, the client may offer to express written [limited] release of the lawyer from the professional confidentiality obligation incumbent thereon under the \nLaw.\n"]
["Must a common interest agreement be in writing?","While the Romanian legislation does not regulate common interest agreements, a lawyer can only proceed to share information or documents received or produced in connection with a client’s project based on such client’s prior express written consent.\n"]
["Is litigation funding permitted in your jurisdiction?  Are there any professional rules in this respect?","Romanian law does not directly address litigation funding rather the regime thereof results from the corroborated application of a variety of rules, including rules governing lending, the exercise of the lawyers’ profession and more.\nThe \nStatutes of the Lawyers’ Profession allows lawyers to receive hourly-based fees, fixed fees, success fees or a combination of the above. A quota litis arrangement, defined as the financial agreement pursuant to which the lawyer only receives its fee as a percentage of the outcome of litigation, is forbidden, whether such fee is to be paid in money, assets or other valuables. It is also prohibited to agree on a fee payable in the form of a percentage of the business of the client.\n"]
["Have the courts in your jurisdiction addressed whether communications with litigation funders may be protected by the ACP or the work-product protection","The Romanian legislation governing the professional confidentiality obligations of lawyers protects any and all information and documents received by the lawyer in fulfilling the mandate entrusted by the client, irrespective of the source thereof.\n"]
["Is the crime-fraud exception recognized in your jurisdiction?","Romanian legislation does not specifically articulate ACP and, correspondingly, it does not provide for a crime-fraud exception thereto in a manner similar to other jurisdictions. However, the protection offered to information and documents pertaining to a client may be limited under certain circumstances that include criminal activities.\n"]
["What statutes or key court decisions articulate the crime-fraud exception in your jurisdiction?","The \nLaw includes a number of provisions that could largely be deemed to fall under the scope of a crime-fraud exception, primarily: technical supervision of the communications between the lawyer and the client can only be proceeded with in case there are indications that the lawyer is committing or preparing an offence of high risk, such as corruption, tax evasion, money laundering, terrorism, offences against national security, the financial interests of the European Union and other offenses carrying a sanction equal to or higher than 5 years of imprisonment (however, if such communications include aspects regarding the client defended by the lawyer, they cannot be used as proofs in a criminal proceedings and shall be destroyed); failure to disclose a criminal offence that a lawyer learns about while exercising professional duties is not deemed an offence, except for offenses resulting in the death of a person, genocide, offenses against humanity, war offences against persons, certain offenses provided by the law regarding the prevention and fight against terrorism. A lawyer is obliged to refrain from assisting a client for the purposes of pursuing an activity that might meet the conditions to qualify as a criminal offense and is entitled to terminate the mandate of assisting a client in activities that prove to be criminal in nature.\n"]
["Work Product Doctrine/Litigation Privilege (doctrine that protects materials prepared in anticipation of litigation or for trial)"]
["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)?)","The \nLaw is the primary Romanian legislation protecting from disclosure information obtained or prepared in anticipation of litigation.\n"]
["What are the elements of the protection in your jurisdiction?","According to the \nLaw (Article 45 para.(3), the lawyer shall not testify or provide information to any individual or authority in relation to a matter instrumented thereby other than based on the client’s express prior written consent. The \nLaw also recognizes the inviolability of professional documents and paperwork that are in the possession or in the office of a lawyer. Under Article 34 para.(2) of the \nLaw, it is also prohibited to seize and confiscate, as part of criminal law proceedings, documents including communications between the client and the lawyer and those created by the lawyer or including the notes or other writings made by the lawyer in preparing the defense for the client. Interdiction also covers the technical supervision or taping of a lawyer’s phone calls and the interception of professional correspondence, but under very specific circumstances and in strict compliance with the procedure provided by law (Article 34 para.3 of the \nLaw).\n"]
["Other Privileges"]
["Does your jurisdiction recognize an accountant-client privilege?","Romanian legislation does not include provisions defining an accountant-client privilege per se. However, professional confidentiality obligations are attached to the information and documents available to financial auditors, fiscal consultants and accountants under the statutes regulating their respective activity and the possibility of disclosure in criminal or civil proceedings is limited accordingly.\n"]
["Does your jurisdiction recognize a mediation privilege?","While Romanian law does not regulate a mediation privilege per se, mediators are subject to professional confidentiality obligations resulting in the limitation of their capacity to testify in criminal or civil proceedings.\n"]
["Does your jurisdiction recognize a settlement negotiation privilege?","The settlement negotiation privilege is not regulated under Romanian law.\n"]