1 Introduction 1
The contours of legal professional privilege vary from one jurisdiction to another. In transnational internal investigations or in multi-jurisdictional criminal proceedings, it is not rare that lawyers need to coordinate their actions and deal with this issue. This paper is thus mainly addressed to foreign lawyers who wish to know more about the scope and the limitations of Swiss legal professional privilege.
After briefly setting out the basis of legal professional privilege (see below 2), this contribution will first distinguish the activities that are protected by privilege from those that are not and discuss de lege ferenda limitations that may be imposed by the Federal Act on Combating Money Laundering and Terrorist Financing of 10 October 1997 (Anti-Money Laundering Act, ("AMLA") (see below 2.3.2). It will then focus on the circumstances under which the legal professional privilege can be lifted (see below 2.4). Finally, it will mention some interesting recent decisions rendered by the Federal Supreme Court ("FSC") in the area of internal investigations (see below 3).
2 The legal professional privilege
2.1 Legal provisions
The legal professional privilege is based on various legal sources:
Even if the Federal Constitution of the Swiss Confederation of 18 April 1999 ("CST") does not expressly mention it, the legal professional privilege still benefits from certain safeguards 2. Indeed, it is first of all derived from the right to personal liberty (Article 10 CST) 3, as well as from the right to benefit from the protection of the private sphere for both the lawyer and the client (Article 13 CST) 4. Any breach of the legal professional privilege is covered by Article 321 of the Swiss Criminal Code of 21 December 1937 ("SCC"), which provides that it is criminally punishable for a lawyer to disclose a secret, although the latter is not defined in the SCC 5. Article 321 SCC is an offence prosecuted only on complaint and only the secret's master has the right to file a complaint 6. As a result, the lawyer who breaches his/her legal professional privilege is liable to a custodial sentence not exceeding three years or to a monetary penalty. Moreover, the legal professional privilege is subject to a particular ruling in Article 13 of the Swiss Federal Law on Lawyers' Free Circulation of 23 June 2000 ("LLCA"). According to this provision, the lawyer is subject to legal professional privilege for all matters entrusted by his/her client. Furthermore, when entering into a contractual relationship with a client, the lawyer commits to carry out any work for his/her client with complete independence 7. Indeed, the lawyer undertakes to implement all the diligence required by the circumstances to reach the expected result 8. Consequently, under Swiss law, the contract with the lawyer is, in principle, submitted to the rules of the agency contract, because this contract corresponds to the contract of all the services provided on an independent basis 9. Agency law includes a duty of allegiance, which implies a duty of discretion (Article 398 para. 2 of the Swiss Code of Obligations of 30 March 1911 "SCO"). This duty applies as well even if the lawyer did not specifically promise to do so 10. 2.2 Protected interests
According to the FSC, the interests of the lawyer's client as well as the interests of justice benefit from the protection granted by legal professional privilege. Clients entrusting secrets to their lawyer must not fear that the latter discloses them. In addition to that, the legal order must remain protected 11. So that the lawyer can practise his/her profession in the most optimal conditions possible, a relationship of mutual trust must exist between the client and his/her lawyer 12. The client will obviously confide more easily in a lawyer if he/she knows that the unauthorised disclosure of secrets can be criminally sanctioned.
2.3 Protected activities and unprotected Activities
It is important to make a distinction between the activities that are protected by legal professional privilege and those that do not benefit from such protection.
2.3.1 Activities protected by legal professional privilege
Only lawyers' "typical activities" benefit from the protection granted by legal professional privilege pursuant to Article 321 SCC and Article 13 LLCA 13. The lawyer's "typical activities" traditionally consist of representing their clients before jurisdictional and administrative authorities as well as in providing legal advice 14. In the scope of the lawyer's typical activities, the protection of facts and documents entrusted to the lawyer derives from the particular relationship of trust between the client and the lawyer 15. Indeed, the client must have the confidence of being able to trust the lawyer completely 16. The FSC ruled that what was said during a public hearing is not considered confidential, irrespective of whether an audience was present or not 17.
2.3.2 Activities not protected by legal professional privilege
Whilst it is unanimously accepted that representation in court proceedings is an activity covered by legal professional privilege, the assessment is more delicate when the activities of the lawyer are of an advisory nature (i.e. corporate or contractual advice). All of the activities that are not linked to the lawyer's mandate stricto sensu, such as private, political, commercial or social activities, are not covered by legal professional privilege 18. Therefore, activities and services that do not...