Attorney-client privilege covers all information that a client entrusts to their lawyer for the purpose of carrying out the mandate. This includes both direct and indirect communications, as well as physical or electronic documents provided to the lawyer. Importantly, privilege also covers any information or documents that the lawyer obtains from third parties in connection with their mandate.
Accordingly, attorney-client privilege protection is broad under Swiss law. It extends to all activities that are considered part of a lawyer's typical duties. This includes providing legal advice, representing clients in court proceedings, drafting contracts, assisting in transactions and conducting internal investigations, including collecting facts and interviewing relevant information holders. However, internal investigations related to financial institutions' exposure to violations of laws and regulations governing their anti-money laundering obligations are not always covered — for example, if an external counsel performs an investigative activity that a financial institution would be required to perform itself under the applicable money laundering laws and regulations, legal privilege does not apply. Legal privilege protection extends to correspondence (including emails) between the client and the lawyer, along with personal notes, legal clarifications, meeting notes, strategy papers, reports, presentations, contract drafts and so on. Finally, privilege also covers all attorney work product and information that external counsel learn from third parties.
While the scope of the legal privilege is broad, there are two important limitations. First, legal privilege does not extend to preexisting documents; that is, documents that existed prior to the instruction of counsel and that the client provides to counsel. Such documents are entrusted to the attorney but are not protected by legal privilege for the obvious reason that it is not possible to hide evidence with one's counsel. Second, legal privilege protection does not apply in situations where the external counsel is the subject of a criminal investigation.
Protected information remains confidential irrespective of its location. The lawyer, the client and third parties have the right to refuse the disclosure of protected documents, irrespective of their location.
Since 1 January 2025, parties and third parties in civil proceedings have the right to refuse to testify and disclose documents related to the activities of their in-house legal services, subject to certain conditions (cf. article 167a of the Swiss Code of Civil Procedure). Specifically, this new privilege applies if the company is registered in a commercial register, the in-house legal department is led by a licensed lawyer (i.e., the lawyer is admitted to practice as a lawyer in Switzerland or meets the professional requirements to practice as an attorney in their country of origin) and the activities are within the scope of the attorney's typical professional duties. Privilege also extends to nonlegal professionals working in the legal department.
Legal privilege for in-house lawyers applies in civil proceedings but not in administrative or criminal proceedings.
Yes, privilege extends to internal communications between in-house lawyers under the conditions mentioned above. Documents that existed before the legal department was involved, i.e., preexisting documents, are not covered by privilege. As mentioned above, the legal privilege for in-house lawyers only applies in civil proceedings.
Foreign attorneys are recognized for the purposes of privilege to the extent that article 321 of the Swiss Criminal Code applies to both Swiss and foreign attorneys; that is, both Swiss and foreign lawyers are prohibited from disclosing confidential information irrespective of their qualification to practice in Switzerland. Conversely, the professional rules governing attorneys' conduct only apply to attorneys admitted to practice in Switzerland. This includes attorneys from an EU or EFTA member state or the UK who are admitted to practice in their home country. Importantly, in the context of criminal proceedings, this does not include attorneys admitted exclusively to practice in the US.
This limitation is relevant because the provisions in Swiss criminal and administrative procedural laws, which give effect to the legal privilege by way of privileges to refuse testimony or produce documents, generally refer to the concept of attorneys admitted to practice in Switzerland. Therefore, it is advisable for foreign non-EU or non-UK attorneys acting on behalf of Swiss clients to be instructed indirectly through an attorney admitted to practice in Switzerland. This is certainly true where the comprehensive protection of correspondence and attorney work product in Swiss criminal or administrative proceedings is at issue. For instance, where a Swiss company instructs US counsel to conduct an internal investigation in a situation where the company may be subject not only to prosecution in the US but also in Switzerland, care should be taken to ensure privilege is protected in both jurisdictions.
In civil proceedings, foreign lawyers who are not from the EU or UK are generally regarded as falling within the scope of privileges that allow them to refuse to give testimony or produce documents.
Attorney-client privilege also extends to nonlegal professionals that qualify as auxiliaries of the attorney. An auxiliary is a person who works under the direction and supervision of the attorney and assists in providing legal advice or representation. This certainly extends to nonlegal staff of law firms and can also extend to vendors that the law firm enlists to support, such as eDiscovery vendors or other service providers.