No equivalent of the common law concepts of legal advice privilege/attorney-client privilege and litigation privilege/attorney work product doctrine exists in Taiwan.
In Taiwan, both legislation and case law have traditionally been silent as to whether a client has the right to refuse to disclose, or prevent any other person from disclosing, confidential communications between the client and their lawyers. However, relevant laws and regulations impose obligations on and grant certain rights to lawyers with respect to client confidentiality. There are three key sources of obligations on lawyers.
Although Taiwan does not formally recognize the common law doctrines of attorney-client privilege or work product protection, the Taiwan Constitutional Court has affirmed that confidential communications between attorneys and their clients are constitutionally protected. In Taiwan Constitutional Court Judgment 112-Hsien-Pan-9 (2023), the Constitutional Court held that the right to confidential and unimpeded communication between defense counsel and their clients, including potential suspects, is a fundamental right protected under the Constitution.
The Constitutional Court emphasized that such protection extends not only to oral and written communications but also to documents and digital records created as a result of those communications. These materials are considered part of the core trust relationship between attorneys and their clients and must not be subject to search or seizure for the purpose of a criminal investigation. The judgment further clarified that any attempt by the state to obtain such materials through search or seizure would constitute an unconstitutional infringement on both the defendant's right to a fair trial and the attorney's professional autonomy.
Accordingly, the Constitutional Court ordered the legislature to amend the Code of Criminal Procedure within two years to reflect these constitutional protections. Until such amendments are enacted, judges and prosecutors must interpret and apply existing search and seizure provisions in accordance with the constitutional principles set forth in the ruling.
To implement this constitutional mandate, a new provision of the Code of Criminal Procedure has been proposed.
According to the draft of the newly proposed article 134-1, records of confidential communications between an attorney or defense counsel and a defendant or criminal suspect, as well as documents or digital files derived from such communications, will not be subject to seizure for use as evidence. However, this protection does not apply under the following circumstances:
This draft provision ensures the right to confidential legal communication for both current defendants and individuals seeking legal advice in anticipation of potential prosecution. It states that such protected materials may not be subject to search or seizure under any procedural mechanism, including general warrants, incidental seizures or seizures conducted in connection with another case, unless a statutory exceptions applies.
Although article 134-1 is still in draft form and its final content remains uncertain, future amendments to the Code of Criminal Procedure are expected to enhance protections for attorney-client communications compared with the current law.
In civil cases, lawyers may refuse to testify or provide documentation in their possession if the content of such testimony or documentation is confidential to their professional duties or business, and the lawyer cannot testify without divulging their technical or professional secrets. As under Taiwan law, there is no discovery procedure in the common law sense, the production of documents that in other jurisdictions would normally be considered privileged will not generally be an issue in Taiwan.