Our Blog

Welcome to our blog


Legal Professional Privilege Case Law

Posted 10. November 2022 by Logistik-Express in Allgemein

With regard to recent legal developments, it should be noted that the Private Damage Directive has been replaced by Law no. 23/2018, of 5 June. While, on the one hand, the Directive ensures consistency as regards the rules governing access to documents held by NCAs, it provides, on the other hand, for a restriction on the disclosure of evidence covered by legal professional privilege. This is also provided for in Law No 23/2018. Yes, there are two types of solicitor-client privilege in the United States: solicitor-client privilege and the work product doctrine. In Lithuania, the concept of solicitor-client privilege is still developing. As a result, judicial practice is not always uniform. For example, in one of its judgments in a criminal case, the Supreme Court of Lithuania held that professional secrecy extends to communications only if there is a binding written agreement between the lawyer and the client on the provision of legal services and only if such communications relate directly to the legal services referred to in that agreement. On the other hand, there have been subsequent cases where Lithuanian lower courts have ruled that oral agreements on the provision of legal services are sufficient for the purposes of the application of professional secrecy. The purpose of this legal principle is to protect an individual`s ability to access the justice system by encouraging full disclosure to legal counsel without fear that disclosure of such communications could harm the client in the future. Companies should exercise caution when invoking EU professional secrecy, as unjustified and fraudulent claims are prohibited and subject to a fine. The work product doctrine protects documents and material created in anticipation of or during litigation by (or for) another party or its representative from disclosure to third parties. The work product protects, for example, information collected from a client at the request of a lawyer; a lawyer`s notes on the examination of witnesses; summaries and chronologies of facts prepared by defence counsel; and a lawyer`s strategies, legal theories and other mental impressions of the issues at stake in the dispute.

Unlike solicitor-client privilege, there is no need for notice for the work product doctrine to apply, and protected information must not contain legal advice or be prepared by the client or lawyer. The Counsel`s Work Product doctrine provides another legal basis in the United States that allows courts to provide disclosure protection for certain documents created in the context of attorney-client relationships. The doctrine stems from Hickman v. Taylor, 329 U.S. 495, 510–11 (1947). The work product doctrine states that, in general, an opposing party may not discover or compel the disclosure of written or oral documents prepared by or for a lawyer in anticipation of litigation or in preparation for trial. The presumption of non-disclosure is rebuttable. More importantly, the ban on testifying has been extended in two ways. First, lawyers and licensed lawyers are no longer allowed to testify about information obtained in the course of professional tasks not related to legal proceedings. However, the “very important reasons” exception was introduced to allow for the lifting of the ban on a lawyer or licensed lawyer to testify in exceptional circumstances.

Secondly, the travaux préparatoires of the amendments make it clear that, at least in the case of tasks related to legal proceedings, the prohibition extends not only to the secrets and sensitive information of the client, but also to those of other parties. In late 2018, one of Korea`s leading law firms was raided by investigative authorities for allegedly trying to influence the outcome of a high-profile political case involving the former Chief Justice. The incident was related to a politically sensitive case in Korea, and it remains to be seen whether Korean courts will eventually be open to accepting and expanding the concept of solicitor-client privilege. Recently, there have also been cases of searches of lawyers and/or their offices and temporary seizure of documents held in law firms, in cases where the lawyers themselves have been charged. On 29 June 2015, in Citic Pacific Limited v Secretary for Justice & Commissioner of Police [2015] 4 HKLRD 20 (`the Citic decision`), the Hong Kong Court of Appeal rejected the restrictive definition of the term “customer” in the context of the English Court of Appeal`s privilege in Three Rivers District Council v Governor and Company of the Bank of England (No. 5) [2003] QB 1556. In Three Rivers (No. 5), the English Court of Appeal held that “client” means the person or persons authorised by a firm to seek and receive advice from its legal advisers and that, therefore, confidential internal communications within a company formed to provide information to legal advisers do not enjoy legal advice privilege. Parties wishing to protect the advice of their internal or external counsel: (a) should carefully consider whether the communication or meeting of LAPs should be protected; (b) to the extent possible or possible, do not confuse commercial and legal issues in e-mails with more than one addressee or, if this is not possible, the sender should ensure that it is clearly stated that the primary purpose of e-mails with multiple recipients is to provide or obtain legal advice; (c) consider that emails and attachments should be reviewed separately for the purposes of the LAP; and (d) ensure that only employees specifically hired to provide legal advice on behalf of the client contact lawyers.

In 2002, a lawyer was sanctioned by the Bar Committee for violating section 11 of the Lawyers` Conduct Ordinance. The Supreme Administrative Court has ruled that professional secrecy does not apply to the company`s internal notes (see CdS. 24 June 2010, No. 4016). Since the client alone has the power to waive the privilege, the lawyer is required to assert the privilege on behalf of the client if necessary, even without the client`s express instruction. Otherwise, the privilege can be waived. In the age of electronic disclosure, the risk of accidental disclosure of a privileged communication or document is serious. Generally, federal and state laws allow a party who inadvertently discloses privileged documents during litigation to “recover” the document and maintain privilege, provided that the party has acted reasonably to prevent the disclosure and correct the misstep immediately after the disclosure is discovered. Parties to litigation will also often include a “recovery clause” in the parties` confidentiality agreement and/or court orders for disclosure of documents in disclosure to protect against accidental waivers of this nature. The existence and extent of solicitor-client privilege depends on the law governing the communications in question.

A U.S. court will likely use a “tactile base” test to determine whether U.S. or foreign law is applicable.

--> -->