Global Investigations Review - The law and practice of international investigations

Privilege 2016

Last verified on Monday 13th February 2017

Mexico

Jonathan Edward Adams and Reynaldo Vizcarra
Baker McKenzie (Mexico)

    Scope of the privilege

  1. 1.Are communications between an attorney and client protected? Under what circumstances?
  2. Mexican law protects communications between attorneys and their clients in the context of legal representation. This protection is established by law and extends to all organised professions, and not specifically to attorneys. The only exception is when a court has issued an order to the attorney to reveal certain information or documentation. Even in these cases, there are several constitutional mechanisms for appealing the court orders.

    Although the law does not go beyond a simple statement of the professional's obligation, widely followed codes of ethics provide that the obligation does not expire and extends to information obtained from third parties in relation to a client representation, and even to information obtained from other attorneys. Finally, the codes of ethics indicate that the duty of confidentiality or client confidence is accompanied by a right that the attorney has vis-à-vis the authorities, and specifically the courts.

    Such communications are not protected in any way, however, in the hands of clients by virtue of their being attorney-client communications. In this regard, there is a clear distinction between the duty of confidentiality or secrecy and the privilege that is recognised in other jurisdictions. Because of the strength of attorney-client confidentiality under Mexican law and as a result of the lack of privilege in the hands of the client, most orders both in the civil and criminal context are issued to the client directly and not to the attorney.

    There are two main exceptions to the duty and right of attorneys to protect client secrets. The first is that the attorney may divulge client secrets when such divulgation is necessary because the client is "gravely and unjustifiably attacking" the attorney. The second exception is when the client communicates to the attorney an intention to commit a crime. This fact is not protected by client–attorney confidentiality and the attorney must divulge information to prevent a crime from being committed and to protect persons in danger.

    In regard to the operation of the attorney–client confidentiality, a note about discovery is in order. Mexican civil and criminal practice has a very limited and formalistic discovery process. Parties seeking discovery must specifically identify information and documentation to be handed over by the other party. The judge in the case will strike any requests deemed to be overly broad or general, or violative of any other legal principal, such as attorney-client confidentiality. In jurisdictions where privilege is more developed, our understanding is that it is often asserted in situations where general categories of documents are sought and therefore conceptually cover documentation that is otherwise covered by the attorney-client confidentiality. In recent years, some laws have begun to give government authorities broader powers and powers to conduct “dawn raids” and collect broad categories of documents. This is the case with the Competition authority, and will most likely be the case under the new National Anti-corruption System, which will enter into force in mid-2017. However, most of these document collections are carried out at the premises of clients, and not the lawyers, so the attorney–client confidentiality rules do not directly apply. Were the authorities to attempt a raid of law offices, the attorneys could claim a blanket protection for all client documentation, which would likely be upheld by the courts unless there were evidence of impending criminal action that could not be stopped in any other way.

  3. 2.Does the privilege only protect legal advice? Does it also protect non-legal communications between an attorney and client, such as business advice?
  4. For the protection of attorney-client confidentiality, the law does not single out legal advice for special protection, but refers to "matters" confided to them by clients. The ethics code extend this protection to information obtained from third parties and even from other attorneys, so the focus is not on advice but on the information generally. Because there is no special emphasis placed on the information being protected because it constitutes advice, there is no distinction between legal advice and other types of advice or information.

  5. 3.Is a distinction made between legal advice related to litigation and other legal advice?
  6. For information and documentation to be protected by the attorney-client confidentiality rules, there is no requirement that the advice be in contemplation of litigation or even related to litigation, but only that it be related to matters "entrusted" to attorneys by their clients.

  7. 4.What kinds of documents are protected by the privilege? Does it cover documents that were prepared in anticipation of an attorney-client communication?
  8. All documents and information provided by a client to the attorney or by the attorney to the client in relation to such documentation and information are protected by attorney-client confidentiality. Documents prepared by the attorney in anticipation of an attorney-client communication would be covered only to the extent that they include information that is confidential client information. As indicated above, attorneys generally take the view that all of their client files and the information therein is subject to attorney–client confidentiality. This position has not been actively challenged by the authorities, which generally prefer to obtain information from clients directly, where it is not protected by attorney-client confidentiality.

  9. 5.To what extent must the communication be confidential? Who can be privy to the communication without breaking privilege?
  10. The attorney-client confidentiality covers all information and documentation provided by the client to the attorney. The type of communication is not particularly relevant to imposing the duty and giving the right of confidentiality to the attorney, nor is the fact that others may have access. The law does not address these issues because it is not really the point. Again, because the information and documentation would normally be available from the client because it is not protected in the client's hands by the attorney-client confidentiality, the authorities normally prefer to obtain information and documentation from the client. 

  11. 6.Is the underlying information privileged if it can be obtained from a non-privileged source?
  12. The lawyer is the holder of the right and the obligated party to the duty of attorney–client confidentiality. The status of the information and documentation in possession of the attorney generally has no relevance to its status in the hands of third parties, unless the third party is an agent of the attorney.

  13. 7.Are there any notable exceptions or caveats to the privilege?
  14. Yes. Pursuant to a final court order, an attorney can be forced to hand over material that is claimed as attorney-client confidential. However, the only exceptions contemplated in the code of ethics for the profession (although they are not explicitly listed in the law) are when the information is needed to prevent a crime or protect victims of a crime.

  15. 8.Are there laws unrelated to privilege that may protect certain communications between attorney and client?
  16. Yes. Certain attorney–client communications may be protected by data privacy legislation. The Mexican data privacy law generally requires that all private parties that hold defined personal information (generally, information that allows the identification of the person) to hold it subject to confidentiality provisions. Special protections apply to sensitive personal information, which is information that would allow illegal discrimination against the rights holder. Because this provision generally applies only to private parties, its applicability against a court of law is not clear. In addition, the Industrial Property Law defines certain information as an industrial secret. This is information that is not generally known but that allows the holder a business advantage in the market. Because it is a crime to divulge this information illegally, this provision of the law is taken quite seriously. It may be used to limit the authority's access to certain documentation, regardless of whether it has been the object of an attorney-client communication.

    Protected parties

  17. 9.To what extent does the privilege extend to in-house counsel? 
  18. In theory, the attorney-client confidentiality requirement applies to all attorneys with respect to their clients. However, courts in Mexico have sometimes taken the position that the in-house attorneys hold information from their employers as employees, and not as their attorneys. Our partner Javier Navarro has recommended that in-house counsel sign a confidentiality and non-disclosure agreement with their companies so that the attorney–client relationship is formalised and documented. This document may then be presented in court as evidence of the attorney–client relationship. However, the client itself could not refuse to provide information or documentation based on this argument, so the value of the attorney's secrecy in this regard could be quite limited.

  19. 10.Does the privilege protect communications between an attorney and a corporate client’s employees? Under what circumstances?
  20. Yes, the attorney-client confidentiality applies to this situation the extent the corporate client employee is providing information or documentation that is related to the corporate client's business. 

  21. 11.Does the privilege protect communications between non-lawyers if they are acting at the direction of counsel or gathering information to provide to counsel?
  22. The attorney-client confidentiality would apply only to the extent that a lawyer asserts this right because of close and effective oversight, preferably on the physical premises of the lawyer's offices. Claims by non-lawyer employees of the client to be acting on behalf of counsel, especially when on the physical premises of the client, will be highly questionable.

  23. 12.Must the attorney be qualified to practise in your country to invoke the privilege?
  24. Although we are not aware of this issue having been tested, the best answer is yes, because the duty of attorney–client confidentiality is based on the professional's status as a practicing professional in the jurisdiction.

  25. 13.Is there an analogous privilege extended to non-lawyer professionals?
  26.  Yes. The law establishes the attorney–client confidentiality for all professionals, not only lawyers. The issue of confidentiality has arisen in the context of medical doctors, accountants and a few other professions.

  27. 14.Does the privilege apply to communications with potential clients?
  28. The law specifically refers to attorney-client confidentiality with regard to information from clients, but attorneys generally take the position that the duty attaches to potential clients as well. This is consistent with the broad interpretation taken by the code of ethics, which applies the duty with respect to information obtained from other counsel, ostensibly about their own clients. So in that context, the duty applies to attorneys even for non-clients who provide information in an attorney–client context.

    Ownership of the privilege

  29. 15.Does the attorney or the client hold the privilege? Who has rights under the privilege? 
  30. The client holds the principal right to the attorney's treatment of her information as confidential, and can waive this right so that the attorney is no longer bound by the duty. However, the ethical code refers to attorney-client confidentiality also as a right of the attorney to the inviolability of the profession. However, the client need not have waived any rights to be subject to orders to provide information or documentation to the authority and cannot assert the right to attorney-client confidentiality against the authority's demand to provide information and documentation.

  31. 16.Can the privilege be waived? Who may waive it?
  32. The client may waive the right to attorney–client confidentiality. Arguably, the attorney would need to waive the right to maintain his or her client’s information and documentation inviolate, as well. However, because the client may not assert the right against the authority directly, it would be unusual for a client to waive the right to confidentiality for the authority to collect information or documentation from the attorney instead of directly from the client.

  33. 17.Is waiver all or nothing? Is it possible to waive the privilege for certain communications but not others?
  34. It would be possible theoretically for a client to waive the right to attorney-client confidentiality only with regard to some information or documentation and not for others. However, again the client would have no defence against having to provide the documentation and information directly.

  35. 18.If two defendants are mounting a joint defence, can they share privileged information without waiver? What about two parties with a common interest?
  36. Yes. Sharing of confidential information between joint defendants does not waive their right to have attorneys for one or both maintain attorney–client confidentiality. This would apply both to common and disparate interests because to the extent that an attorney acquired information based on a client relationship (his or hers or his or her colleague’s), that information would be protected by attorney–client confidentiality.

  37. 19.Is it common for attorneys and clients to agree to a confidentiality provision in a contract?
  38. Traditionally, no, because of the well-established duty of confidentiality. However, it is becoming more common because of standard agreements in large companies and their applicability to all third party service providers, including attorneys.

    Enforcement considerations

  39. 20.Describe the legal basis of the rules governing the privilege. Are these rules found in a constitution or statute, or in case law?
  40. The Constitution provides that Congress and the States should regulate professions, and the attorney-client confidentiality duty has been legislated by Congress in a statute that regulates the professions. Case law in Mexico is formed only when five rulings have been made with substantively the same content, without any intervening rulings that are inconsistent. Mexican jurisprudence in this regard shows only one such case law, from 2011, and it relates to professional confidentiality in the context of journalists and their sources. 

  41. 21.Is the privilege primarily characterised as a procedural or evidentiary rule, or is it characterised as a substantive right? 
  42. The law characterises confidentiality as primarily a duty of professionals. The National Code of Criminal Procedure specifies that the professional who is cited to appear in court and testify must give the reason for refusal to testify, and further provides that such testimony is inadmissible as evidence.

  43. 22.Describe any differences in how the privilege is applied in the criminal, civil, regulatory or investigatory context. 
  44. The application in these contexts is substantively the same. The only difference is that in the criminal context, as discussed above, the ethical code indicates that the attorney may have an obligation to divulge client confidences to the extent that they may prevent a crime or protect others from a crime, and only to the extent that the client has informed the attorney of an intent to commit the crime.

  45. 23.Are the rules regarding the privilege uniform nationwide or are there regional variations within your country?
  46. The attorney-client confidentiality is regulated by federal law, but also by state law. At least for the largest metropolitan areas, the differences among states appear to be in wording only, and not substantive. For example, the law in Nuevo León, for which the capital is Monterrey, expressly includes the exceptions described above that are also contained in the ethics codes.

  47. 24.Does a professional organisation enforce the maintenance of the privilege among attorneys? What discipline do attorneys face if they violate privilege rules?
  48. Because membership in a professional organisation is not compulsory in Mexico (having a law degree approved by the Secretary of Education is all that is required by law), professional organisations do not have the strong enforcement role that they have in some other jurisdictions. The organisations that have adopted the code of ethics may each exclude from membership an attorney that violates attorney–client confidentiality, but may not exclude her from practising law altogether. We are not aware of activity by the bar organisations in this regard.

  49. 25.What sanctions do courts impose for violating the attorney–client privilege? 
  50. If evidence were to be presented in court in violation of attorney-client confidentiality, the court would reject the evidence on motion of the aggrieved client or ex-client, unless one of the exceptions discussed applies.

  51. 26.How can parties invoke the privilege during investigations or court proceedings? Can the privilege be invoked on the witness stand?
  52. A party would need to show that an attorney breached the attorney–client confidentiality duty in presenting evidence by presenting a motion in that regard. Courtroom style witness stands are not part of the Mexican judicial system at this time.

  53. 27.In disputes relating to privilege, who typically bears the burden of proof? 
  54. The aggrieved party would bear the burden of proof in showing that an attorney or ex-attorney has divulged information or documentation that should have been treated as confidential.

  55. 28.Does the privilege protect against compulsory disclosures such as search warrants or discovery requests? Is there a distinction between documents held by the client and documents held by the attorney? 
  56.  Only for search warrants and discovery requests against the attorney. The most important distinction is between documents held by clients and those held by attorneys. The former are not protected by attorney-client confidentiality.

  57. 29.Describe the choice-of-law rules applied by your courts to determine which country’s privilege laws apply. To what extent does your country recognise the validity of choice-of-law provisions in contracts, particularly as they apply to privilege?
  58. Attorney-client confidentiality in Mexico would not be affected by choice of law clauses. Unless the client has waived confidentiality, the Mexican law will apply. A client could conceivably waive confidentiality ex ante in an agreement, and to that extent it would be valid. But mere choice of foreign law would not normally be considered to import foreign privilege laws to the Mexican courts.

    Termination of the privilege

  59. 30.Does the privilege terminate on the death of either the attorney or the client?
  60. Because the right belongs primarily to the client, arguably it terminates upon her death, with the exception of effects it may have on the estate or third parties. So in practice, it continues beyond death of the client. The attorney and her successors and assigns would not be liberated from the duty even by the attorney's death.

  61. 31.Does the privilege terminate on the conclusion of the attorney-client relationship?
  62. No, the ethics code specifically indicates that attorney-client confidentiality survives the termination of the relationship.

  63. 32.Is the privilege destroyed if the client communicates information to the attorney to further a crime or perpetuate a fraud?
  64. Yes, as discussed above.

  65. 33.Is the privilege terminated if the attorney makes an inadvertent disclosure? If such a disclosure is made, can the attorney retrieve the privileged information or otherwise correct the error?
  66. No, the attorney-client confidentiality is not terminated by inadvertent disclosure and may still be asserted by the client. 

  67. 34.Is the privilege terminated if a third party is included in the communication or is subsequently forwarded the communication?
  68. No, the attorney–client confidentiality is not terminated by including a third party in the communication or forwarding. If these actions are taken by the client, the confidentiality terminated with respect to the persons to whom communication is made.

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Questions

    Scope of the privilege

  1. 1.Are communications between an attorney and client protected? Under what circumstances?
  2. 2.Does the privilege only protect legal advice? Does it also protect non-legal communications between an attorney and client, such as business advice?
  3. 3.Is a distinction made between legal advice related to litigation and other legal advice?
  4. 4.What kinds of documents are protected by the privilege? Does it cover documents that were prepared in anticipation of an attorney-client communication?
  5. 5.To what extent must the communication be confidential? Who can be privy to the communication without breaking privilege?
  6. 6.Is the underlying information privileged if it can be obtained from a non-privileged source?
  7. 7.Are there any notable exceptions or caveats to the privilege?
  8. 8.Are there laws unrelated to privilege that may protect certain communications between attorney and client?
  9. Protected parties

  10. 9.To what extent does the privilege extend to in-house counsel? 
  11. 10.Does the privilege protect communications between an attorney and a corporate client’s employees? Under what circumstances?
  12. 11.Does the privilege protect communications between non-lawyers if they are acting at the direction of counsel or gathering information to provide to counsel?
  13. 12.Must the attorney be qualified to practise in your country to invoke the privilege?
  14. 13.Is there an analogous privilege extended to non-lawyer professionals?
  15. 14.Does the privilege apply to communications with potential clients?
  16. Ownership of the privilege

  17. 15.Does the attorney or the client hold the privilege? Who has rights under the privilege? 
  18. 16.Can the privilege be waived? Who may waive it?
  19. 17.Is waiver all or nothing? Is it possible to waive the privilege for certain communications but not others?
  20. 18.If two defendants are mounting a joint defence, can they share privileged information without waiver? What about two parties with a common interest?
  21. 19.Is it common for attorneys and clients to agree to a confidentiality provision in a contract?
  22. Enforcement considerations

  23. 20.Describe the legal basis of the rules governing the privilege. Are these rules found in a constitution or statute, or in case law?
  24. 21.Is the privilege primarily characterised as a procedural or evidentiary rule, or is it characterised as a substantive right? 
  25. 22.Describe any differences in how the privilege is applied in the criminal, civil, regulatory or investigatory context. 
  26. 23.Are the rules regarding the privilege uniform nationwide or are there regional variations within your country?
  27. 24.Does a professional organisation enforce the maintenance of the privilege among attorneys? What discipline do attorneys face if they violate privilege rules?
  28. 25.What sanctions do courts impose for violating the attorney–client privilege? 
  29. 26.How can parties invoke the privilege during investigations or court proceedings? Can the privilege be invoked on the witness stand?
  30. 27.In disputes relating to privilege, who typically bears the burden of proof? 
  31. 28.Does the privilege protect against compulsory disclosures such as search warrants or discovery requests? Is there a distinction between documents held by the client and documents held by the attorney? 
  32. 29.Describe the choice-of-law rules applied by your courts to determine which country’s privilege laws apply. To what extent does your country recognise the validity of choice-of-law provisions in contracts, particularly as they apply to privilege?
  33. Termination of the privilege

  34. 30.Does the privilege terminate on the death of either the attorney or the client?
  35. 31.Does the privilege terminate on the conclusion of the attorney-client relationship?
  36. 32.Is the privilege destroyed if the client communicates information to the attorney to further a crime or perpetuate a fraud?
  37. 33.Is the privilege terminated if the attorney makes an inadvertent disclosure? If such a disclosure is made, can the attorney retrieve the privileged information or otherwise correct the error?
  38. 34.Is the privilege terminated if a third party is included in the communication or is subsequently forwarded the communication?