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Legal Privilege & Professional Secrecy
Author: Sergiy Grebenyuk, Orest Stasiuk, Olha Yurchenko
Source: Lexology. – 24 April 2019
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Attorney-client communications doctrine

Identify and describe your jurisdiction’s laws, regulations, professional rules and doctrines that protect communications between an attorney and a client from disclosure.

The main principle of protection of the attorney secrecy (part of which is attorney-client communications) is governed by the Constitution of Ukraine, the Law On the Bar and Advocates’ Activity and the Rules of Professional Conduct of an attorney.

Attorney secrecy includes any information about a client that an attorney became aware of, in addition to the matters on which a client applied to an attorney, and also the contents of the recommendations, advice or explanations provided by an attorney. Also covered are documents drafted by an attorney, information stored on electronic media, items that contains personal data about an individual and any other documents or information received by an attorney while providing legal assistance.

This generally means that an attorney has a duty to observe secrecy (unless released by the client). Violation of the duty of secrecy is subject to professional sanctions, up to the withdrawal of the certificate to practise.

Further, the laws prohibit examining an attorney in relation to all matters covered by attorney secrecy (basically, all information the attorney becomes aware of while providing legal assistance to client).

Depending on the nature of proceedings, prohibition to question an attorney is governed by:

  • article 65 of the Criminal Procedure Code;
  • article 70 of the Civil Procedure Code;
  • article 66 of the Code of Administrative Proceedings; and
  • article 67 of the Commercial Procedure Code.

The laws also established other safeguards for an attorney’s activities (eg, right to refuse provision of documents or information subject to professional secrecy, additional requirements for searches of attorney’s work place or home).

It should be noted that the concept of attorney secrecy in Ukraine is not extensively developed, thus law, regulations and court practice often do not provide clear guidance on respective issues.

In-house and outside counsel

Describe any relevant differences in your jurisdiction between the status of private practitioners and in-house counsel, in terms of protections for attorney-client communications.

Ukrainian laws impose a duty to observe attorney secrecy (part of which is attorney-client communications) only upon attorneys (advocates) (ie, lawyers admitted to the Bar that practise individually or within attorneys at law). Further, generally, privileges and safeguards established in the law apply to attorney activities.

Thus, activities of the in-house counsels, even admitted to the Bar, do not fall under the protection provided in the Law On the Bar and Advocates’ Activity.

Further, under the position of the Ukrainian National Bar Association, in-house counsels admitted to the Bar may represent their employers in the courts (where representation of attorney is required) only under separate agreement (on provision of legal assistance). In other words, acting in the position of an external counsel.

The obligation to keep entrusted information confidential might also arise from a contract with an employer (which is often the case when in-house counsels are not admitted to the bar). This may protect the company from disclosure on the side of in-house counsel but does not provide the same level of protection (for instance, from access of third parties) as established in the law for attorney-client communications.

Nevertheless, in some instances, in-house counsel enjoys privileges generally conferred upon attorneys. For example, when a legal entity, where in-house counsel is employed, is subject to criminal proceeding, the counsel may represent the company in this proceeding under power of attorney. In this case, under article 65 of the Criminal Procedure Code, the in-house counsel cannot be interrogated in relation to all matters he or she becomes aware in the course of such representation.

Work-product doctrine

Identify and describe your jurisdiction’s laws, regulations, professional rules and doctrines that provide protection from disclosure of tangible material created in anticipation of litigation.

Generally, Ukrainian laws do not distinguish between the protection of attorney-client communications and protection of work product prepared in anticipation of litigation (such as memoranda, conclusions, reports). Both fall under the scope of attorney secrecy and as such shall be protected. The concept of pretrial discovery proceedings is alien to the Ukrainian legal system.

In civil, commercial and administrative (eg, dispute with state authorities) proceedings, the court, at the request of a party to the proceedings (in administrative proceedings also ex officio) may order disclosure of evidence by another party to the proceedings or third parties. Theoretically, work product, if referred to, may fall under this scope. Nevertheless, the position of the Ukrainian Bar Association is that the court shall not render such order and, if ordered, this may constitute disproportionate intervention in an attorney’s activity. An attorney providing the requested materials will be in violation of his or her duty to observe attorney secrecy.

Recent case law

Identify and summarise recent landmark decisions involving attorney-client communications and work product.

In a recent decision on 8 June 2017 (Case No. 910/8372/16), the Court of Appeal held that the attorneys-at-law may not invoke against the client a confidentiality clause set forth in the contract on legal assistance, as the obligation not to disclose such information lies with the attorney, not the client. According to the court, the client is entitled to complain under established procedure as to an attorney’s work and provide information necessary to substantiate such a complaint.

In 2017, the Higher Qualification and Disciplinary Bar Commission of Ukraine confirmed its approach that attorneys should not disclose information or documents subject to attorney secrecy at the request of the law enforcement agencies or provide testimonies in this regard.

In a number of recent decisions, the courts clarified that seizing of materials subject to attorney secrecy is against the law and cannot be justified. Nevertheless, access to and seizing of such materials occurs in Ukraine due to inconsistencies in the laws, differences in interpretations and approaches taken in some cases by law enforcement agencies and investigative judges (see question 6).

Attorney-client communications

Elements

Describe the elements necessary to confer protection over attorney-client communications.

To be protected, communications between an attorney and a client must fall within typical attorney professional activity (ie, defence, representation, provision of other legal assistance). Within the above activities, it does not make a difference whether the communication is from attorney to client or vice versa.

Further, the law does not provide additional requirement in relation to such protection (ie, it shall not matter when communication occurred or where it took place or where its records are located, whether in the client’s or the attorney’s premises). Also, the involvement of third parties in such communication, upon the will or consent of client, shall not be considered as a waiver of privilege.

If the third party that does not have a duty to observe confidentiality, discloses the information, it may result in factual loss of protection as there is no specific procedure to preclude the third parties from using them. Also, in terms of criminal proceedings, law enforcement agencies should not be precluded from interrogation of a third party familiar with the relevant information.

Exclusions

Describe any settings in which the protections for attorney-client communications are not recognised.

As stated above, the protection of attorney-client privilege is generally recognised if it falls within the scope of typical attorney professional activity.

In criminal proceedings, the attorney-client privilege may not be invoked if the attorney is also charged with a related criminal offence, depending on particular circumstances.

Further, as there are discrepancies in the laws and different approaches to interpretation in relation to safeguards for attorney activity, in practice, the attorney-client privilege is not always complied with in criminal proceedings.

The Law On the Bar and Advocates’ Activity (articles 22 and 23), generally, prohibits access to or seizure of information or documenst falling under attorney-client privilege, even for the purpose of criminal investigation. At the same time, the Criminal Procedure Code of Ukraine (article 161) clearly prohibits access (and subsequent seizure) of communications between attorney and client, if the attorney acts as defender, that is, they represent the suspect or accused.

Based on this, in certain cases, the law enforcement agencies argue that they are entitled to access the relevant materials if, for instance, the notice of suspicion in criminal proceedings was not served.

Further, the Criminal Procedure Code of Ukraine permits, under certain circumstance, the seizure of material evidence, including documents (ie, tangible objects that have been used as an instrument in a criminal offence or retain traces or contain other information that may be used to prove facts or circumstances to be established in the course of criminal proceedings; items that have been an object of a criminal offence; money, valuables or other articles obtained in an unlawful manner or gained as a result of a criminal offence).

In some instances, the law enforcement agencies act as though this provision overrides attorney-client privilege. The approach of the courts varies and, in some instance, investigative judges allow the seizure and arrest of material evidence the attorney’s documents falling with the attorney-client privilege as well as technical devices (eg, cell phones) containing attorney-client communications.

Who holds the protection?

In your jurisdiction, do the protections for attorney-client communications belong to the client, or is secrecy a duty incumbent on the attorney?

Generally, the attorney-client privilege is established in the client’s interests. At the same time, the attorney determines whether respective communications fall under attorney-client privilege and it is the duty of the attorney to observe it.

The above duty survives attorney-client relations and goes beyond the client’s death. The attorney may be released from this duty only on consent of the client or his or her successors.

Further, the Rules of Professional Conduct (article 10) establish that even if released from the above duty by the client, the attorney may continue to keep information and documents in attorney secrecy status and refuse to provide them to third parties for the purpose of professional activities.

Underlying facts in the communication

To what extent are the facts communicated between an attorney and a client protected, as opposed to the attorney-client communication itself?

Under the law, attorney-client privilege covers the communication between an attorney and a client on factual information if within the scope of an attorney’s typical professional activity. To the best of our knowledge we are not aware of cases in which the above approach was challenged, for example on the basis that the communication or work product contains only factual information, or that the attorney became aware of these facts from other sources.

Agents

In what circumstances do communications with agents of the attorney or agents of the client fall within the scope of the protections for attorney-client communications?

The Law On the Bar and Advocates’ Activity does not answer this question directly. In terms of the duty of confidentiality, reference is made to an attorney’s assistant, a trainee or people employed by an attorney, so communication should be protected from them.

Based on the general principles that ‘information about a client that an attorney became aware of’, ‘the matters on which a client applied to an attorney’ and ‘any other documents or information received by an attorney while providing legal assistance’ fall within attorney secrecy, it could be argued that where outside investigators or forensic accountants are engaged by the client or by the attorney for the purposes of legal advice to the client, the communication between them and the attorney and prepared materials fall within attorney secrecy. At the same time, we are not aware whether such approach have been tested in landmark cases.

Corporations claiming protection

Can a corporation avail itself of the protections for attorney-client communications? Who controls the protections on behalf of the corporation?

Yes. Under the law, ‘client’ means, inter alia, an individual or a legal entity. Thus, if a corporation itself engaged an attorney, it can avail itself of the above protection. Such a decision shall be made by directors or other officers authorised to legally represent it.

Communications between employees and outside counsel

Do the protections for attorney-client communications extend to communications between employees and outside counsel?

The law does not provide clear guidance in this regard. As a minimum communication between directors and officers of the company authorised to represent it and the attorney shall fall under the scope of attorney-client privilege (if an outside counsel falls under the definition of an attorney according to the Law On the Bar and Advocates’ Activity and provides legal assistance to a corporation within the typical professional activity).

As to best practices in this regard, it is advisable to establish in writing who will be the contact person on behalf of the company in communication with the attorney and to retain written records from the respective contact person requesting or authorising communication between employees and outside counsel in the course of provision of legal assistance to the corporation.

Outside counsel that is not an attorney under the Law On the Bar and Advocates’ Activity does not enjoy the privileges and safeguards envisaged in this law. Thus, communications between a corporation, its employees and such counsel does not have the status of attorney-client privilege. The outside counsel may have a confidentiality duty under the respective contract with the corporation.

See also question 2.

Communications between employees and in-house counsel

Do the protections for attorney-client communications extend to communications between employees and in-house counsel?

See question 2.

Communications between company counsel and ex-employees

To what degree do the protections for attorney-client communications extend to communications between counsel for the company and former employees?

The law does not provide a direct answer to this. The past communications between the attorney and employee as described above (when the employee was part of the corporation) shall fall under the scope of attorney-client privilege.

However, it is unlikely that attorney-client privilege will extend to current communications of outside counsel (that is the attorney under the terms of the Law On the Bar and Advocates’ Activity) with the former employee who is no longer a part of the corporation. If such communication is required in the course of legal advice to the corporation, the former employee could be viewed as a third party in correspondence between the corporation and the attorney.

As to communication with in-house counsel, see question 2.

Who may waive protection

Who may waive the protections for attorney-client communications?

Generally, the law provides only one type of waiving of protection of the attorney’s secrecy - the written statement of the client.

Also, the attorney is released of the duty to observe confidentiality to the extent required for protection of his or her rights and interests in case the client files a complaint in relation to his or her professional activities.

Actions constituting waiver

What actions constitute waiver of the protections for attorney-client communications?

As described above, the waiver of a client shall be formalised in a written statement. While the law is not clear in this regard, public disclosure by the client of materials subject to attorney-client privilege may result in factual loss of protection as there is no specific procedure to preclude the third parties from using them.

Accidental disclosure

Does accidental disclosure of attorney-client privileged materials waive the privilege?

Under the law, an attorney that accidentally discloses attorney-client privileged materials could be held liable for such disclosure.

While the accidental disclosure by an attorney or client does not constitute a proper waiver of privilege (as the law provides only for express waiver by the client), the materials disclosed may factually lose the protection, as there is no specific procedure to preclude the third parties from using them.

Sharing communications among employees

Can attorney-client communications be shared among employees of an entity, without waiving the protections? How?

See question 11. As to the best practices in this regard, it is advisable to established in writing who will be the contact persons on behalf of the company in communication with the attorney and to keep the information, which is intended to be protected, within the circle of respective persons.

Exceptions

Describe your jurisdiction’s main exceptions to the protections for attorney-client communications.

The attorney-client communications may lose the status of attorney-client privilege upon a written statement of a client.

Also, where a client complains against an attorney in relation to his or her professional activities, the attorney is released from duty to observe secrecy to the extent necessary to protect his or her rights and interests.

Further, under the law, submission of certain information to the state authorities to comply with requirements of money laundering and financing of terrorism statutes is not viewed as a breach of professional secrecy by attorneys.

The law or court practice does not provide clear reference to crime or fraud exception or alike. For example, an attorney does not have a duty or right to report to law enforcement agencies the intentions of a client to commit serious crime.

At the same time, due to different approaches to interpretation and discrepancies in the laws, in practice there are exceptions (see question 6.)

Litigation proceedings overriding the protection

Can the protections for attorney-client communications be overcome by any criminal or civil proceedings where waiver has not otherwise occurred?

Generally no in relation to all information entrusted to the attorney in his or her professional capacity and if the attorney is not charged in the same context.

For issues arising in practice, see questions 3 and 6.

Recognition of foreign protections

In what circumstances are foreign protections for attorney-client communications recognised in your jurisdiction?

Generally, protection of attorney-client communications may be invoked only if a lawyer falls under the definition of attorney under the Law On the Bar and Advocates’ Activity.

The above law, generally and in establishing such protection, applies only to attorneys practising in Ukraine. The foreign attorney may be admitted to practise in Ukraine under certain conditions (or can practise in Ukraine in accordance with international agreement). If so, his or her communications with the client will be protected. Otherwise, the communications between the client and a foreign attorney are not protected.

Further, in civil and commercial proceedings, Ukrainian courts could examine witnesses at the request of foreign authorities in accordance with the Convention on the Taking of Evidence Abroad in Civil or Commercial Matters (18 March 1970), to which Ukraine is a party. Under article 11 of the above Convention, the witness may refuse provision of evidence, among other things, under the law of the state of origin, where the privilege or duty has been specified in the letter of request to the Ukrainian authorities.

Best practice to maintain protection

Describe the best practices in your jurisdiction that aim to ensure that protections for attorney-client communications are maintained.
  • It is advisable for attorney and client to indicate that their correspondence has attorney-client privilege status, by marking it as such (eg, privileged and confidential).
  • It is recommended not to misuse the protection for communications that is out of scope of attorney-client privilege.
  • Materials (hard copies or stored electronically) received or created by an attorney in the respective case that fall under the scope of attorney secrecy (as an attorney determines in accordance with the law) shall be marked as such (eg, attorney dossier).
  • The duty to observe confidentially also lies with attorney assistants, trainees and employees. For this purpose, the attorney may ask them to sign a confidentiality undertaking.
  • Also, an attorney shall not voluntarily cooperate with law enforcement or other state authorities (eg, provision of testimonies, confidential documents) and take proactive steps where access or seizure happens (eg, to complain to the court, require the return of respective materials).

Work product

Elements

Describe the elements necessary to confer protection over work product.

The Ukrainian legal system is not familiar with the concept of litigation privilege. As stated above, Ukrainian law does not distinguish between the protection of attorney-client communications and protection of work product prepared in anticipation of litigation (as well as other documents prepared by an attorney in the course of providing legal advice).

As such, generally, the rules and principles governing attorney-client communications also apply to work product. Where the work product is prepared by a third party under instruction from the attorney (eg, memo from accountants) and for the purposes of providing legal advice, it could be argued that such product enjoys the protection. (See question 9.)

Exclusions

Describe any settings in which the protections for work product are not recognised.

Since there are no special distinctions for work product, refer to question 6.

Who holds the protection

Who holds the protections for work product?

The client and the attorney.

Types of work product

Is greater protection given to certain types of work product?

No. All types of work product shall be protected equally as long as they are within the scope of attorney-client privilege.

In-house counsel work product

Is work product created by, or at the direction of, in-house counsel protected?

Please refer to question 2.

Work product of agents

In what circumstances do materials created by others, at the direction of an attorney or at the direction of a client, fall within the scope of the protections for work product?

See question 9.

Third parties overcoming the protection

Can a third party overcome the protections for work product? How?

Generally no, unless work product is voluntarily or accidentally disclosed. See also questions 6 and 16.

Who may waive work-product protection

Who may waive the protections for work product?

See question 14.

Actions constituting waiver

What actions constitute waiver of the protections for work product?

See question 15.

Client access to attorney files

May clients demand their attorney’s files relating to their representation? Does that waive the protections for work product?

Yes, the client may demand their attorney’s files relating to representation (excluding notes, drafts), and this shall not constitute waiver of protection.

Further, upon termination of a contract, the attorney is obliged to return to the client any documents that he or she received from a client, documents received from third parties for the client as well as provide the client with any available copies of procedural documents.

Accidental disclosure of work product

Does accidental disclosure of work-product protected materials waive the protection?

See question 16.

Exceptions

Describe your jurisdiction’s main exceptions to the protections for work product.

See questions 6 and 18.

Litigation proceedings overriding the protections

Can the protections for work product be overcome by any criminal or civil proceedings where waiver has not otherwise occurred?

See questions 6 and 19.

Recognition of foreign protection

In what circumstances are foreign protections for work product recognised in your jurisdiction?

See question 20.

Other issues

Who determines what is protected

Who determines whether attorney-client communications or work product are protected from disclosure?

Generally, an attorney determines whether the communications or work product fall under the scope of attorney secrecy and should be protected from disclosure.

In civil, commercial or administrative proceedings, if the question arises, determination shall be made by a judge.

In criminal investigations, the access and seizing of items and documents, as well as permits for searches, are issued by the investigative judge. The mechanisms exist to challenge relevant court orders or complaints regarding their application in practice in case of disagreement.

Also, in the course of searches of attorney’s workplace or home, representatives from the local attorney councils should be present and, with the aim of ensuring attorney secrecy during the search, may ask questions, make comments and remarks regarding the way the search is conducted.

Common interest

Can attorney-client communications or work product be shared among clients with a common interest who are represented by separate attorneys, without waiving the protections? How may the protections be preserved or waived?

The law and practice does not provide clear guidance in this regard. While it could be argued that such actions of the client, acting on his or her own, shall not result in waiver of privilege, the protection may be factually lost if third parties with whom such communications or work products were shared do not have a duty to keep them confidential.

Limited waiver

Can attorney-client communications or work product be disclosed to government authorities without waiving the protections? How?

The law and practice does not provide a clear answer tp this. See questions 14 and 15.

When it is necessary to file a privileged document to government, it is advisable to request the respective institution to take measures to prevent third-party access to attorney secrecy (for example, to grant specialised status for the document within the files of the institution).

Other privileges or protections

Are there other recognised privileges or protections in your jurisdiction that permit attorneys and clients to maintain the confidentiality of communications or work product?

There are no additional privileges or protections specifically ensuring confidentiality of communications or work products in attorney-client relations.