03 - Scope of privilege | Ukraine | Global Privilege and Professional Secrecy Guide

Is attorney-client communication only privileged as long as it remains in the lawyer's possession, or is a copy held by the client also protected?

According to Ukrainian law, the concept of attorney-client privilege protects the information and documents received by or prepared by an attorney in connection with providing professional legal assistance and, thus, the documents that are in the attorney's possession.

The copies of documents held by the client are not protected by attorney-client privilege.

Are in-house lawyers treated in the same way as external lawyers for determining privilege?

Under Ukrainian law, attorney-client privilege applies exclusively to attorneys (lawyers admitted to the Ukrainian Bar), while other legal professionals (i.e., in-house lawyers, external legal counsel, etc.) are not bound by attorney-client privilege.

An in-house lawyer who is an attorney admitted to the Ukrainian Bar may only be treated as an attorney in respect of privilege if such attorney provides legal assistance to the company based on a legal services agreement (but not based on an employment agreement).

At the same time, both in-house lawyers and external legal counsels (not admitted to the Ukrainian Bar) may be bound by nondisclosure agreements (NDAs) and other confidentiality obligations. However, these do not provide the same level of protection as attorney-client privilege.

Does privilege extend to internal communications between in-house lawyers?

Considering that, according to Ukrainian law, attorney-client privilege only applies to attorneys, any legal communications and documents prepared by in-house lawyers are not privileged.

Are foreign lawyers recognized for the purposes of privilege?

In order to practice law in Ukraine, a foreign attorney should be formally admitted to the Ukrainian Bar. Subject to compliance with this requirement, a foreign attorney shall have the same rights and guarantees as a local attorney, including attorney-client privilege.

Does privilege extend to nonlegal professionals who may from time to time advise on legal issues relating to their field, e.g., accountants or tax consultants advising on tax law?

Under Ukrainian law, the concept of attorney-client privilege does not include nonlegal professionals. At the same time, attorney-client privilege extends to any person employed by an attorney, attorney bureau or attorney organization, regardless of a role.

Also, some confidentiality obligations are provided by the special laws regulating the professional activities of certain nonlegal professionals, e.g., auditors, appraisers, forensic experts, etc.

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