Confidentiality and legal privilege protection of internal communications produced by in-house lawyers was secured by Lisbon’s Commerce Tribunal, in a recent decision ruled within the scope of administrative offence proceedings started by the Portuguese Competition Authority. Following an appeal sponsored by PMLJ, Lisbon’s Commerce Tribunal considered that the correspondence and documents containing written information or instructions produced by an in-house lawyer who is currently a member of the Portuguese Bar Association, cannot be seized, as this would be invalid.
In fact, adding to the ruling of the 16 January which had already recognized that the documents which are in the in-house lawyer’s office - or, if the in-house lawyer does not have his own office, his desk and other places over which he has exclusive authority -, are automatically protected by the rules of the legal privilege, the Commerce Tribunal has now explicitly recognized that the documents produced by the in-house lawyers benefit from identical legal protection, as they are equally covered by the legal privilege of lawyers, irrespective of where in the company they are based.
The difference lies in that the former benefit from automatic protection, resulting from their geographic location, whilst the contents of the latter need to be superficially analysed in order to determine if they have the nature of correspondence of the in-house lawyer and/or written information or instructions produced by the in-house lawyer. Only in these cases they are under the legal privilege protection and cannot be seized.
The Commerce Tribunal thus rejected the arguments of the Portuguese Competition Authority according to which the legal department of a company cannot be considered as a lawyer’s office, for the purpose of applying the rules of legal privilege and related legal protection and that the documents seized in other areas of the company do not benefit from such protection, as they are not even in an area reserved to the lawyer.
Therefore, the Tribunal ruled as null and void the seizure of the documents produced by the in-house lawyer, even if seized in a place that is not reserved to the lawyer, by considering it an infringement of Article 71(1) and (3) of the Portuguese Bar Association’s Statute and of the Article 180(2) of the Portuguese Code of Criminal Procedure, and ordered that they should be returned to the lawyer in question.
This ruling, which complements the sentence of the 16 January, ultimately establishes the same protection to in-house and external lawyers in which concerns the rules of legal privilege and its legal protection: the in-house lawyer does not loose his quality of lawyer, as his duties, rights and obligations do not change and the company is his client.
This Informative Note was prepared by Anti-Trust Administrative Offences Multidisciplinary Team, and is intended for general distribution to clients and colleagues. The information contained herein is provided as a general and abstract overview. It should not be used as a basis on which to make decisions and professional legal advice should be sought for specific cases. The contents of this Informative Note may not be reproduced, in whole or in part, without the express consent of the author. If you should require further information on this topic, please contact Drª. Rita Samoreno Gomes, e.mail: [email protected], tel: (351) 21 319 75 07. |