Global Investigations Review - The law and practice of international investigations

Privilege

Last verified on Monday 9th October 2017

Brazil

Francisco Ribeiro Todorov, Gledson Marques de Campos and Alessandro De Franceschi da Cruz
Trench Rossi Watanabe

    Scope of the privilege

  1. 1.Are communications between an attorney and client protected? Under what circumstances?
  2. Yes, communications between attorney and client are protected and not subject to disclosure to third parties. In Brazil, as long as the communication involves legal issues and provided that the attorney is licensed or registered at the competent Brazilian Bar, the protection prevails. The Brazilian Federal Constitution guarantees access to information and preserves the confidentiality of the source of information whenever such confidentiality is required in the exercise of professional activity. Exceptions to the general rule of confidentiality occur in very few situations and need to be carefully analysed on a case-by-case basis.

    In this context, Code of Ethical Conduct of the Brazilian Bar Association provides that the attorney has the duty to maintain confidentiality of the facts that such attorney becomes aware of while practising law (ie, appearing in courts and providing legal advice), including the activities of mediation, conciliation and arbitration. 

    Moreover, the Statute of the Brazilian Bar Association, which regulates the practice of law, provides for the inviolability of the attorney's offices or workplace, work instruments and correspondence related to the practice of law.

  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. The attorney-client privilege is related to the practice of law. The protection: (i) covers all communications related to the attorney's professional activity with a client and (ii) applies to all lawyers licensed at the competent Brazilian Bar. Accordingly, it should not protect non-legal communications.

  5. 3.Is a distinction made between legal advice related to litigation and other legal advice?
  6. There is no distinction between legal advice related to litigation and other legal advice, as both are considered activities related to the practice of law.

  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? Does it cover documents prepared during an attorney-led internal investigation?

  8. There is no provision in the Brazilian legislation excluding documents prepared by an attorney in anticipation of an attorney–client communication from privilege. As mentioned in question 2, the protection covers all communications related to the attorney's professional activity with a client. For purposes of Brazilian legislation, communication of any kind between attorney and client is deemed to be confidential and not subject to third parties, which may include documents that were prepared in anticipation of an attorney–client communication.

  9. 5.To what extent must the communication be confidential? Who can be privy to the communication without breaking privilege?
  10. Communications between attorney and client are confidential and only the client can authorize the attorney to disclose such information. Exceptions to the confidentiality should be analysed as the case may be (eg, grounds for fair cause).

  11. 6.Is the underlying information privileged if it can be obtained from a non-privileged source?
  12. No, the underlying information obtained from a non-privileged source will not be considered privileged.

  13. 7.Are there any notable exceptions or caveats to the privilege?
  14. Yes, communications between attorney and client are entitled to privilege except in circumstances that should configure a fair cause for breaking such confidentiality. As a general overview, attorneys may breach the confidentiality granted by the attorney-client privilege: (i) if the communication is in furtherance of a crime, or to avoid threat to one’s life or honour; (ii) for the attorney's own protection and defence against the client (limited to such defence purposes), and (iii) if previously authorised by a client (waiver), except to serve as witness.

  15. 8.Are there laws unrelated to privilege that may protect certain communications between attorney and client?
  16. The Criminal Code and Criminal Procedure Code are laws unrelated to privilege that may protect certain communications between attorney and the client. For instance, the Criminal Code provides for the crime of breach of professional secrecy and the Criminal Procedure Code provides that those who are subject to professional secrecy are not obliged to testify with respect to facts of which he or she becomes aware in view of the practice of such profession.  

    Protected parties

  17. 9.To what extent does the privilege extend to in-house counsel? 
  18. There is no distinction between the practice of law by an external attorney or an in-house counsel, with respect to the rights and duties of attorneys. Accordingly, privilege equally applies to both, external and in-house practitioners.

  19. 10.Does the privilege protect communications between an attorney and a corporate client’s employees? Under what circumstances?
  20. Yes, privilege protects communications between an attorney and a corporate client's employees, to the extent that such employees are considered the client for purposes of the Brazilian legislation that regulates the practice of law.

  21. 11.

    Does the privilege protect communications between non-lawyer employees of a corporate client if they are acting at the direction of counsel or gathering information to provide to counsel?

  22. The practice of law is an activity exclusively performed by qualified attorneys (ie, lawyer licensed at the competent Brazilian Bar). In this context, communications between attorney and client are considered privileged and such privilege does not protect communications between non-lawyers if they are acting at the direction of counsel or gathering information to provide to counsel. 

  23. 12.Must the attorney be qualified to practise in your country to invoke the privilege?
  24. Yes. The attorney-client privilege can only be invoked by qualified lawyers. Acts that should be exclusively performed by attorneys can be considered void if practiced by non-qualified lawyers. In this context, communications between non-qualified attorneys and clients are not protected by privilege.  

  25. 13.

    Does the privilege extend to non-lawyer third parties? In which circumstances does the privilege protect communications with third parties if they are providing advice related to a legal matter?

  26. As mentioned before, communications between attorney and client are protected and not subject to disclosure to third parties. As long the communication involves legal issues and provided that the attorney is licensed or registered at the competent Brazilian Bar, the protection prevails.

  27. 14.Does the privilege apply to communications with potential clients?
  28. There is no specific legal provision on this matter. However, considering that it is a duty of the attorney to maintain the confidentiality with respect to the activities related to the practice of law, there are good grounds to sustain that privilege may also apply to communications with potential clients.

    Ownership of the privilege

  29. 15.Does the attorney or the client hold the privilege? Who has rights under the privilege? 
  30. To keep the professional secrecy is a duty of the attorney. In this context, please note that the attorney has the right to refuse to testify in a proceeding in which he or she has acted as attorney or with respect to facts that such attorney has become aware while practicing law, even if authorised or requested by the client (or former client). The client, in its turn, has the rights under the privilege and is entitled to authorise the attorney to disclose the information. 

  31. 16.Can the privilege be waived? Who may waive it?
  32. The privilege can be waived by the client, who has the right to authorise the disclosure of the information by the attorney. Please note, however, that the attorney has the right to refuse to testify in a proceeding with respect to the facts that such attorney has become aware while practicing law, even if authorised or requested by the client (or former client). 

  33. 17.Is waiver all or nothing? Is it possible to waive the privilege for certain communications but not others?
  34. There is no specific regulation covering the extension of the waiver or even prohibiting the waiver of certain communications but not others. In this context, it is possible to sustain that the client is allowed to waive the privilege for only certain communications. 

  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. Two defendants that are mounting a joint defence or two parties with a common interest are allowed to share privileged information. It is important to note, however, that the clients must authorise the attorney to share such information among themselves to avoid the characterisation of a breach of secrecy by the attorney. 

  37. 19.Is it common for attorneys and clients to agree to a confidentiality provision in a contract?
  38. Yes, it is common for attorneys and clients to agree to a confidentiality provision in a contract, even though the attorney client privilege is a duty of the attorney and a matter of public order.

    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 legal basis of the rules governing the privilege are the Brazilian Federal Constitution, Law No. 8,906/1994 (the Statute of the Brazilian Bar Association), Resolution No. 02/2015 (the Code of Ethical Conduct of the Brazilian Bar Association). Some provisions may also be found in the Civil Procedure Code, Criminal Procedure Code and Criminal Code. There are also administrative decisions of the Court of Ethics of the Brazilian Bar Association that can be invoked on this matter.

  41. 21.Is the privilege primarily characterised as a procedural or evidentiary rule, or is it characterised as a substantive right? 
  42. For Brazilian legal purposes, the privilege can be characterised as a prerogative of the client and a duty of the attorney.

  43. 22.Describe any differences in how the privilege is applied in the criminal, civil, regulatory or investigatory context. 
  44. As a rule, in Brazil, privilege is applied in a way that any kind of information between attorney and client are presumably confidential. In this context, for regulatory, criminal or civil context, the attorney has right to refuse to testify with respect to the facts that such attorney has become aware while practising law, even if authorised or requested by the client. 

  45. 23.Are the rules regarding the privilege uniform nationwide or are there regional variations within your country?
  46. In Brazil, the rules regarding the privilege are uniform nationwide.

  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. The Brazilian Bar Association (OAB) enforces the maintenance of the privilege among attorneys and discipline attorneys if they violate privilege rules.

    Accordingly, in case of breach of privilege by Brazilian attorneys, an administrative proceeding may be filed before the Brazilian Bar Association and the attorney may be subject to disciplinary sanctions. The Statute of the Brazilian Bar Association provides for the sanction of censorship, which can be converted in warning in the event penalty mitigation circumstances apply.

  49. 25.What sanctions do courts impose for violating the attorney–client privilege? 
  50. For criminal purposes, the violation of professional confidentiality can be sanctioned with three months to one year of detention plus fines. The attorneys may be held liable for violation of privilege and the client is entitled to seek damages. 

  51. 26.How can parties invoke the privilege during investigations or court proceedings? Can the privilege be invoked on the witness stand?
  52. It is important to highlight that Brazilian Federal Constitution provides for a broad concept of secrecy related to attorney–client communication. This means that the parties are allowed to invoke the privilege during investigations or court proceedings indicating that a certain material is not subject to disclosure to third parties as it refers to legal communications prepared for legal use.

  53. 27.In disputes relating to privilege, who typically bears the burden of proof? 
  54. Under Brazilian law, as a rule, the plaintiff has the burden of proving its rights whereas the defendant has the burden of proving its arguments of defence. In this context, with respect to disputes relating to privilege, the burden of proof is borne by the party that has the interest in contesting the privilege. Disputes relating to privilege are not usual in Brazil.

  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. The Statute of the Brazilian Bar Association provides for the inviolability of the attorney's offices or workplace, work instruments and correspondence related to the practice of law. Accordingly, privileged documents from clients held by the attorney at his or her office or workplace are protected. 

    A situation in which there is no distinction between the documents held by client and the attorney is in case of search and seizure of material evidence of a crime that are in the possession of the attorney or the defendant. In this situation the law allows the search and seizure and there is no protection from privilege, regardless of who has the possession of the evidence. The article 243, paragraph 2 of the Brazilian Code of Criminal Procedure, for example, prohibits the seizure of documents from defendants' attorney, unless such document forms part of the corpus delicti.

    In relation to compulsory disclosures as discovery requests, it is important to clarify that Brazil does not have the concept of “pretrial discovery”, as in some common law jurisdictions. This means that, as general rule, a party may not be obliged to disclose documents against its interests (this is set forth in the Constitution, in the Code of Criminal Procedure, in the American Convention of Human Rights and in the New Code of Civil Procedure). Under Brazilian law, the basic rule is that the plaintiff has the burden of proving its arguments of defence. That is to say, in principle, each party must produce its own documents. 

  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. In accordance with article 9 of Introductory Law to the Brazilian Legal System ''agreements shall be governed by the law of the country in which the agreement is entered into (constituídos)”. In addition, according to the second paragraph of this article when an agreement is signed by parties in different places, the governing law shall be that of the proponent of the agreement. In other words, in agreements entered into inter absentes the governing law is that of the place where the offering party is domiciled, including laws regarding privilege. However, the enforcement of a foreign law by Brazilian courts is controversial and the case law does not have unison understanding if the parties are allowed to choose the applicable law. It is very rare for a Brazilian judge to apply foreign law. Besides, as the Brazilian rules involving the attorney–client privilege are considered laws of public order, Brazilian judges have the duty of applying them in Brazil. 

    Termination of the privilege

  59. 30.Does the privilege terminate on the death of either the attorney or the client?
  60. There is no specific regulation about the termination of the privilege in case of death. However, considering that it is a duty of the attorney to maintain the confidentiality of information and that the responsibility of the attorney remains even upon conclusion of the attorney-client relationship, there are grounds to support that privilege does not terminate in case of death of either the attorney or the client.  

  61. 31.Does the privilege terminate on the conclusion of the attorney-client relationship?
  62. Privilege does not terminate on the conclusion of the attorney–client relationship. In fact, in case of termination of the relationship, the attorney remains liable for damage that he or she may cause against former clients or third parties. In addition to that, as the attorney is required to maintain secrecy in case he or she postulates against a former client, this is another argument to support that privilege is not terminated upon conclusion of the attorney–client relationship. 

  63. 32.Is the privilege destroyed if the client communicates information to the attorney to further a crime or perpetuate a fraud?
  64. Communications between attorney and client are entitled to privilege except circumstances that should configure a fair cause for breaking such confidentiality, such as if the communication is in furtherance of a crime, or to avoid threat to one’s life or honour. It is important to mention that the attorney is not obliged to disclose to the competent authorities in the event he or she becomes aware that the client is about to commit a crime or fraud. Instead, the situations described above are exception in which the attorney would be allowed to break the confidentiality. 

  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. Privilege is not terminated if the attorney makes an inadvertent disclosure and the attorney is able to retrieve the privileged information or otherwise correct the error. Please note, however, that the attorney may still be subject to disciplinary measures to be applied by the Brazilian Bar Association and may also held liable before the client for disclosing such privileged information. 

  67. 34.Is the privilege terminated if a third party is included in the communication or is subsequently forwarded the communication?
  68. The privilege is terminated if a third party is included in the communication by the client or with the client's authorisation, as in this case it is deemed as waiver of privilege. The same occurs in case the client subsequently forwards the communication to a third party or authorises the attorney to do so. 

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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? Does it cover documents prepared during an attorney-led internal investigation?


  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-lawyer employees of a corporate client 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.

    Does the privilege extend to non-lawyer third parties? In which circumstances does the privilege protect communications with third parties if they are providing advice related to a legal matter?


  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?