Under Chilean law and ethical developments, both attorney-client communications and documents are considered privileged regardless of whether they remain in the lawyer's possession or are held by the client. The protection is not limited by the physical location of the documents but rather is defined by the nature of the information and its connection to the professional relationship.
Although not regulated under the Professional Ethics Code of 1948, this is expressly addressed by the Professional Ethics Code of 2011, which establishes that privilege extends to documents and other instruments that contain confidential information, regardless of whether they are in the lawyer's or the client's possession (article 64 of the Professional Ethics Code of 2011). The Chilean Code of Criminal Procedure reinforces this protection in article 220, which safeguards the communications of a person under criminal investigation with their lawyer, including notes taken of those communications and any circumstance to which privilege could be naturally be extended.
The treatment of in-house lawyers regarding privilege remains an unresolved doctrinal question in Chile. Regardless, discussions are generally oriented toward extending protection and privilege to in-house lawyers.
As noted by one author, there is uncertainty about whether in-house lawyers (often called "fiscales" in Chilean companies) are subject to confidentiality duties and privilege protection given their dual character as both lawyers and company employees. The Chilean Bar Association has publicly stated that the Professional Ethics Code of 2011 makes no distinction between the establishment of duties and the rights that arise from the professional relationship with the client, as long as this relationship it encompasses legal services. A labor contract between a company and a lawyer would be only one of many mechanisms to establish a professional relationship that generates confidentiality duties and privilege protection.
The doctrine has also proposed a different, functional approach: In-house lawyers should enjoy the same privilege protections as external lawyers when acting in their professional legal capacity. Privilege would apply to the extent that documentation and/or information in their possession refers to matters of their professional activity as lawyers. Information relating to corporate aspects that are known to others at the same organizational level would not be covered by privilege.
The specific application of privilege to corporate legal departments remains underdeveloped in Chilean law. The Chilean ethics framework provides some guidance on this issue. According to article 11 of the Professional Ethics Code of 2011, the reference to lawyers' ethical obligations toward clients extends to law firms. In this regard, internal communications of lawyers working in the same firm or legal department would also be covered by privilege, as they collectively serve the same client.
In criminal matters, there is a clearer rule protecting communications inside an in-house department, as article 220 of the Code of Criminal Procedure establishes that the protection of documents and objects from seizure "extends to the offices or establishments in which [people that have the right to abstain from declaring] conduct their profession or activity." This would extend privilege, in general, to communications and documents inside the office in which a privileged party performs their legal activities in favor of a client.
Foreign lawyers are not considered lawyers in Chile unless they comply with specific requirements and are vested by the Chilean Supreme Court. As such, ethical duties and legal provisions that establish attorney-client privilege in Chile do not apply to foreign lawyers.
Foreign lawyers can validate their title in Chile. Under Chilean law, foreign lawyers can be vested as such by the Chilean Supreme Court (articles 520 and 521 of the Organic Code of Courts) after formal requirements have been met (articles 523 and 526 of the Organic Code of Courts).
Conceptually, legal privilege applies exclusively to lawyers in their relations with their clients. However, statutory provisions that establish the right to abstain from declaring against a client based on attorney-client privilege usually also extend to other persons that must keep a secret due to their function or profession. In criminal proceedings, this extends to people that "have the duty to keep the secret that has been entrusted to them," specifically including doctors and "confesors" (article 303 of the Code of Criminal Procedure). This is also the case in regulatory matters regarding antitrust and anticompetition law (article 39(n) of Law Decree 211). In both contexts, the protection extends to preventing these persons' documents and objects from being seized (article 220 of the Code of Criminal Procedure and article 39(n) of Law Decree 211). A difference can be found in the interception of telephonic communications, which is limited to attorney-client communications in criminal investigations but is extended to persons that, due to their profession or legal function, "have the duty to keep the secret that has been entrusted to them" in antitrust investigations.
A broad interpretation of these rules may extend this protection to tax accountants, as the Chilean Ethics Code of Accountants establishes a duty of confidentiality (articles 46 to 49 of the Ethics Code of Accountants of 2022 and article 140 of the IFAC Code of Ethics for Professional Accountants of 2012). This may also be the case for engineers that work as tax consultants, who also have confidentiality duties under the Ethics Code of Engineers of 2012 (article D.2 of the Ethics Code of Engineers of 2012). However, the protection of accountants' and engineers' right to privilege is not as well established as legal privilege: Both ethics codes are only applicable to the affiliates of the Chilean Association of Accountants and the Chilean Association of Engineers, and the extent of the protection expressly excludes cases in which the professionals are required to disclose information requested by a competent tribunal (article D.6 of the Ethics Code of Engineers of 2012) or when there is a legal duty to reveal information (article 140.7 of the IFAC Code of Ethics for Professional Accountants 2012).
In any case, the duty to protect secrets can be extended to others in the same situation if they are considered to have a professional obligation to keep secrets. For example, this is the case for Law 19.733 on the practice of journalism, which establishes the right to secrecy regarding sources of information.
In civil matters, there is no equal protection for accountants and tax consultants, or any other professional that is not explicitly considered by law. The law only establishes procedural immunity for ecclesiastics, legal professionals, doctors and midwives (article 360, No. 1 of the Code of Civil Procedure).