Attorney-client communication is not privileged per se. Consequently, under Austrian law, there is no universally applicable answer to this question, which is disputed in Austrian legal literature. However, it seems to be the predominant view that only documents in the exclusive possession of an attorney are privileged, not those in possession of the client.
Furthermore, the level of protection may depend on the applicable law and on whether the proceeding in question is a criminal or a civil proceeding. With regard to criminal proceedings, for example, it has been claimed in literature that an attorney-client communication can be seized and used in court as soon as it has passed into the client’s possession. However, the new doctrine acknowledges that in criminal proceedings attorney-client communications, even if they are in the client’s possession, are protected from seizure. Nevertheless, there are exceptions, for example, already existing documents that the client sends or hands over to the attorney, i.e., previously existing evidence, and other written communications that are not addressed to the attorney, are not covered by the privilege.
An in-house lawyer is not an attorney (Rechtsanwalt) within the meaning of the Austrian Attorneys’ Code. Attorneys must fulfill certain requirements for practicing as an attorney and are listed in a register of Austrian attorneys established by the Austrian Bar Association according to the provisions of the Code.
Unlike registered attorneys, in-house lawyers do not have the right to refuse to provide evidence in civil or criminal proceedings. However, they may still invoke other forms of confidentiality obligations to which they may be subject, such as banking secrecy or official secrecy — the so-called Amtsverschwiegenheit.
In-house lawyers in general do not have the right to refuse to provide evidence in court proceedings. Thus, internal communications are not privileged.
Under the Federal Law on the Free Movement of Services and Establishment of European Attorneys in Austria, European attorneys with an office in Austria have restricted rights in comparison to Austrian attorneys and are obliged to involve an Austrian attorney when representing or defending a client in legal proceedings. The question of privilege may therefore be less likely to arise in such cases. However, the services of a European attorney who has an office in Austria or provides legal advice in Austria on a temporary basis are in this context treated as equivalent to the services rendered by an Austrian attorney. Such an attorney may therefore invoke the confidentiality obligation in accordance with the Austrian Attorneys’ Code. Therefore, the attorney’s privilege is applicable to such foreign attorneys as well.
The question of whether a foreign lawyer in general has a right to make use of the attorney’s privilege is disputed. One opinion is that a foreign lawyer may not invoke a more extensive confidentiality obligation than the lawyer would be subject to under the provisions applicable in their home country, but otherwise may invoke the duty of confidentiality under the Austrian Attorneys’ Code, in accordance with the principle of lex fori. The court must then decide whether the attorney is to be considered as an attorney within the meaning of the procedural rules and may invoke the right to refuse to provide evidence.
Another view is that the trust between an attorney and their client is to be protected and must, therefore, be evaluated in accordance with the law applicable to the legal relationship between the attorney and the clients themselves in accordance with the provisions of private international law. The law applicable to a contract between lawyers and their clients is the law of the jurisdiction in which the lawyers’ office is located, unless otherwise agreed by the parties. Accordingly, this view looks to the law of the lawyers’ home jurisdiction to determine privilege. The Austrian courts have yet to determine which of these competing views is correct.
Whether communications with nonlegal professionals are privileged primarily depends on the applicable vocational and professional law (Berufs- und Standesrecht). The Austrian Code of Civil Procedure provides for a general right to refuse to give evidence on facts which are protected by a statutory duty of confidentiality.
Tax consultants, as well as certified public accountants, are subject to the Austrian Accountants and Tax Advisors Act (Wirtschaftstreuhandberufsgesetz), which provides for a specific duty of confidentiality. Consequently, these professionals enjoy the right to refuse to give evidence.