The so-called attorney’s privilege (Anwaltsprivileg) is also referred to as “protection of confidentiality with regard to communication between attorney and client.” However, under Austrian law this concept is not explicitly regulated. Rather, it is derived from the attorney’s duty of confidentiality and the corresponding provisions of procedural law providing for an attorney’s right to refuse to give evidence.

Generally, attorneys in Austria are subject to the Austrian Attorneys’ Code (“Code”). The Code contains several provisions that regulate the relationship between attorneys and their clients.

Under the Code, an attorney is subject to a particular duty of confidentiality and must treat as strictly confidential all information which relates to: (i) facts the attorney has been entrusted with in a professional capacity (including documents provided to the attorney by a client); and (ii) facts that the client has an interest in keeping confidential that have otherwise become known to the attorney. The confidentiality obligation also extends to the employees and assistants of the attorney. Further, the Code provides that an attorney has a right to keep such information confidential in legal and administrative proceedings. The right of the attorney to refuse to divulge such information in civil and in criminal proceedings is also reflected in the Austrian Code of Civil Procedure and the Austrian Code of Criminal Procedure (Strafgesetzbuch). The right to refuse to give evidence also applies in other types of proceedings, such as in administrative proceedings and in legal proceedings for fiscal offenses. However, there are exceptions to these rules concerning cases of money laundering or financing terrorism.

Under the Code, the attorney’s duty of confidentiality must not be circumvented by judicial or other measures. Consequently, the duty of confidentiality must not be circumvented by ordering the disclosure of documents, video or audio files or data carriers or by seizing them. This holds equally true for the attorney’s right to refuse to give evidence as laid down in the Austrian Code of Civil Procedure and the Austrian Code of Criminal Procedure. However, it is important to bear in mind that the consequences of using evidence obtained in violation of these rules differ, depending on the circumstances of each case (e.g., whether civil or criminal procedural rules apply and whether the evidence seized was in the attorney’s or in the client’s possession).

A violation by an attorney of these duties can constitute a breach of the attorney’s professional obligations and may, for instance, lead to exclusion from the bar. However, the client can always choose to waive the attorney’s duty of confidentiality. Nevertheless, even where there has been a waiver by the client, the attorney must consider whether the client would have to face detrimental effects due to the disclosure of the information. If this is the case, the attorney is obliged to refuse to provide evidence relating to these facts, even if the client is prepared to allow disclosure of the information.