Attorney-client communications are also privileged when a copy is held by the client. However, the obligation to preserve the confidentiality of the communications is only imposed on the lawyer, who is subject to the duty of professional secrecy. Consequently, the confidentiality of the communications is not imposed on the client who can disclose said communications in a court action.

Under Luxembourg law, there is a strict difference between the status of in-house counsel and attorneys registered with the Luxembourg Bar ("Luxembourg attorneys"). In-house counsel are not admitted to the bar and therefore are not bound by the specific professional and ethical rules applicable to Luxembourg attorneys. Luxembourg attorneys are bound to remain independent from their clients while in-house counsel are only bound by professional secrecy and confidentiality in light of the information they have received as a consequence of their position within their employer.

As only Luxembourg attorneys are subject to a strict code of professional conduct, legal privilege is not extended to communications between in-house counsel and employees, officers or directors of a company where such communications were created for the purpose of obtaining legal opinions on matters relating to the company's activities. 

Legal privilege does not extend to communications issued by in-house lawyers, who are not subject to the ethical rules applicable to attorneys registered with the Luxembourg Bar. As such, in-house lawyers do not benefit from any legal privilege concerning their own internal communications, since they are not legally subject to strict professional secrecy. 

The position of foreign lawyers with regard to privilege depends on whether the foreign lawyer is an EU lawyer and whether the issue of confidentiality arises with regard to acts performed in Luxembourg or abroad.

EU lawyers

If the lawyer is admitted to a bar association within the EU, their communications with clients are governed by the professional and ethical rules applicable to their bar.

In relation to documents exchanged between an attorney registered with the Luxembourg Bar  ("Luxembourg attorney") and a lawyer from different European bar associations, the rule is that these shall be privileged if the Luxembourg attorney has sought the prior acceptance of the foreign lawyer to be bound by the professional secrecy arising out from the Luxembourg ethical rules.

Non-EU lawyer working in Luxembourg as in-house counsel

Privilege does not extend to communications (written or oral) between a company and its in-house counsel working in Luxembourg, even where the in-house counsel is admitted to a foreign bar association in a jurisdiction where privilege is extended to in-house counsel.

Non-EU lawyer working abroad

Luxembourg ethical rules do not address the application of privilege to communications (written or oral) between a lawyer admitted to a bar association outside the EU and a client located in Luxembourg.

Legal privilege rules for non-attorney tax advisers

Generally, tax advisers who are not simultaneously attorneys registered with the Luxembourg Bar ("Luxembourg attorneys") cannot invoke legal privilege as only attorneys are subject to a strict code of professional conduct. Nevertheless, the professional secrecy provisions of article 458 of the Luxembourg Criminal Code restrict non-attorney tax advisers from voluntarily disclosing facts learned in the course of their professional activity. Any breach of their professional secrecy may lead to criminal sanctions.

In limited circumstances, when non-attorney tax advisers perform their duties in law firms that are supervised by the Luxembourg Bar, their advice may be protected by legal privilege. If a non-attorney tax adviser issues an opinion to a Luxembourg law firm client while being affiliated with the firm, the content of said opinion may be deemed as having been issued by the law firm and hence, be covered by legal privilege. Note, tax advisers in law firms may be required to cooperate with public authorities, as legal privilege is only applicable to tax advisers that are also attorneys.

Confidentiality obligations for tax advisers

Luxembourg tax advisers may perform their duties in other environments as well. Tax advisers working in accountancy firms, such as the Big Four,^[1] that are supervised by the Institut des Réviseurs d'Entreprises (IRE) and the Commission de Surveillance du Secteur Financier (CSSF) in Luxembourg are subject to professional secrecy by law.^[2] According to these provisions, statutory auditors, approved statutory auditors, audit firms, approved audit firms, and the persons working for them must maintain confidential the information entrusted to them in the course of their professional activity. Any breach of professional secrecy will lead to fines and/or imprisonment. However, the professional secrecy obligations of auditors and employees of audit firms are not absolute as they have the obligation to cooperate as fully as possible with any legal request made to them by public authorities.

Tax advisers performing their duties as independent professionals or working for professional accountants supervised by the Ordre des Experts-Comptables (OEC) are subject to confidentiality obligations. These tax advisers are obligated to refrain from disclosing confidential information without proper and specific authority or unless there is a legal or professional right or duty to disclose. Tax advisers who are not also attorneys may disclose confidential information where it is permitted by law and is authorized by the client or where disclosure is required by law, including for the following purposes:

• The production of documents or other provision of evidence in the course of legal proceedings
• Disclosure to the appropriate public authorities of infringements of the law that come to light
• Pursuant to a professional duty or right to disclose, when not prohibited by law, such as
  • To comply with the quality review of a member body or professional body
  • To respond to an inquiry or investigation by a member body or regulatory body
  • To protect the professional interests of a professional accountant in legal proceedings
  • To comply with technical standards and ethics requirements

[1] Deloitte, Ernst & Young, KPMG, and PricewaterhouseCoopers.

[2] Article 28 of the law of 23 July 2016 concerning the audit profession.