Switzerland has a long tradition of legal excellence, and its fine reputation is rooted in attorney-client privilege. The country’s laws have firmly established this protection for those receiving and giving legal representation, and with few exceptions, this covenant between client and attorney cannot be legally broken. Clients can feel secure that their lawyers will protect them to the full extent of the law.
The Swiss legal system clearly spells out what attorney-client privilege means. As long as a lawyer is performing their “typical attorney activities,” communication between them and a client is considered privileged. These typical activities include all actions that are performed by the attorney acting as a client’s legal representative or counsel. Activities not considered typical, or commercial activities such as asset management and corporate administration, are not considered privileged.
The Swiss Supreme Court has ruled that legal representation such as estate planning or serving offshore company clients should be included as typical attorney activities and fall under the protection of privilege. This decision does not recognize the idea of a blanket privilege. Documents concerning a company’s incorporation, trusts, domiciliary companies, etc., are not covered. Instead, they are also considered commercial activities.
The Swiss legal system considers all legal advice to be included under client/attorney privilege, but it doesn’t end there. The privilege extends to everything told to the attorney in confidence as long as the attorney is providing legal counseling or the information is connected to the attorney’s typical attorney activities.
This protection applies to potential clients as well as current clients. If you give information to an attorney during an initial interview, they cannot share that information even if you ultimately hire someone else. As long as information is given to the attorney because of their role as a legal advocate, the privilege holds, even in the case of business advice.
However, if the attorney plays a dual role for the client, performing both typical and non-typical tasks for them, only communications concerning the typical tasks will be protected. Thee distinctions can be somewhat confusing.
In Switzerland, attorney-client privilege goes both ways. The attorney also has the right not to share client information, even if the client dies or specifically frees them from their privilege. That means the attorney can use their own ethical judgment when deciding whether or not to comply with an information request.
Switzerland has established some limits to this rule. Privilege does not apply to attorneys in a criminal proceeding if they too can be charged along with the client.
Anyone involved in litigation may refuse to share documents that were available to both the client and the attorney as long as the data concerns typical professional activity. This provision includes third parties.
Criminal Procedure Code and articles 13, 16 and 17 of the Swiss Federal Act on Administrative Procedure), a party to litigation (as well as third parties) has the right to refuse to produce correspondence between such party and an attorney, provided that the correspondence relates to the attorney’s typical professional activity (legal advice and legal representation). On the same basis, the attorney and the client may refuse to testify with respect to attorney-client communications. Since third-parties are frequently involved in legal proceedings, this protection is essential to client privacy.
Attorney -lient privilege is protected by Swiss criminal and procedural law as well as by the Swiss Federal Act on Attorneys (BGFA). In fact, violating 13 BGFA can result in serious sanctions. Also, article 321 of the Swiss criminal code says that an “intentional” breach of attorney/client privilege can lead to monetary fines or a custodial sentence for up to three years. Accidental breaches may be investigated and dealt with independently.
In-house counsel is one clear exception to the privilege. Swiss law protects attorney-client privilege concerning communications between clients and independent or outside attorneys, but no such protection applies to communications between clients and in-house attorneys, even if these attorneys are qualified to be admitted to the bar. Obviously, clients need to be aware of this distinction before they exchange information with in-house lawyers.
Under Swiss law, clients are well-protected when it concerns information shared with their attorneys as long as they are not in-house counsel. As long as these communications concern what is termed “typical attorney activities,” they are protected. The attorney can refuse to break privilege even when released by the client. Other commercial activities are not covered by attorney-client privilege. However, the system is designed to honor the rights of the client in most legal matters.