Global Investigations Review - The law and practice of international investigations

Privilege

Last verified on Wednesday 23rd October 2019

Brazil

Mariana Tumbiolo and Carlos Wehrs
FeldensMadruga

    Scope of the privilege

  1. 1.Are communications between an attorney and client protected? Under what circumstances?
  2. Brazilian law recognises that attorneys are bound to professional confidentiality and that such confidentiality must be protected both to preserve the interest of attorneys as well as of their clients. This protection is reflected in the Brazilian Constitution and other laws such as the Code of Criminal Procedure, the Code of Criminal Law, the Code of Civil Procedure, the Statute of the Attorney (Law No. 8,906 of 1994), as well as the Code of Ethics and Discipline of the Brazilian Bar Association.

    The protection of the communications between attorneys and clients is mostly based on the Duty of Confidentiality. Unlike other jurisdictions, there is no distinction between the broad duty of confidentiality and other doctrines, such as attorney–client privilege and work product.

    Therefore, confidentiality works both as a duty and a prerogative. In that sense, attorneys cannot reveal a client’s confidential information and have a right not to be compelled to testify or to produce the client’s information.

  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 scope of the confidentiality is broad and it involves all the means and all the content of the information necessary to the exercise of what is regarded as typical legal activities, such as consulting, advising and legal management.

    However, when an attorney conducts activities that do not fall within the scope of the practice of the law (accounting, for instance), the duty of confidentiality will not apply.

  5. 3.Is a distinction made between legal advice related to litigation and other legal advice?
  6. Any kind of legal advice is equally protected under the duty of confidentiality. Under article 7 of the Statute of the Attorney and article 35 of the Code of Ethics and Discipline of the Brazilian Bar Association, the attorney must maintain the confidentiality of facts learned during the practice of his or her profession.

    The expression “facts” not only includes those learned during representations in litigations, but also those disclosed in the exercise of any typical legal activity, such as those described in article 1 of Law No. 8.906: consulting, advising and legal management.

  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. Under Brazilian law, the protection of communications with clients and documents produced by an attorney within the scope of the legal services being provided is both a duty imposed on attorneys as well as a prerogative enjoyed by them. Absent specific circumstances (discussed in detail in question 7), an attorney may not be compelled to produce any document related to the services provided to the client.

    Recently, the Appeals Court for the 1st Region (Case Records # 1000399-80.2019.4.01.0000), in an injunction decision, ruled that unless there are reasons to believe that the attorney is involved in a criminal activity with his or her client, he or she may not be compelled to disclose information even regarding who is paying the attorney fees.

    Internal investigation documents are also protected by confidentiality, as long as the investigation was led by an attorney (either in-house or external).

  9. 5.To what extent must the communication be confidential? Who can be privy to the communication without breaking privilege?
  10. As discussed above, client and attorney communication is protected by the broad duty of confidentiality. There is no separate doctrine for attorney-client privilege. The knowledge of other people, therefore, does not destroy the confidentiality of the communications.

    It is our understanding that other professionals acting under the supervision and coordination of an attorney are also bound to the duty of confidentiality.

  11. 6.Is the underlying information privileged if it can be obtained from a non-privileged source?
  12. As expressed previously, the duty of confidentiality forbids attorneys to reveal any information provided by the client. The information itself, if revealed through independent sources, may be used by authorities or other parties.

  13. 7.Are there any notable exceptions or caveats to the privilege?
  14. An attorney may be subject to disciplinary actions if he or she breaches his Duty of Confidentiality without good cause (Statute of the Attorney, 45, VI). The Code of Ethics and Discipline of the Brazilian Bar Association determines that good cause may be characterised in “exceptional circumstances”, such as in cases of “serious threats to life or to the honour” or in cases in which the attorney has to defend him or herself.

    Additionally, the Brazilian Bar Association recently ruled that an attorney may reveal confidential information of his or her client to “defend a third party who may be victim of violence, with imminent risk of bodily, psychologic or sexual harm” (Consult 4143/2018).

  15. 8.Are there laws unrelated to privilege that may protect certain communications between attorney and client?
  16. The Brazilian Code of Civil Procedure determines that neither the party of the case (article 388) nor a listed witness (article 448) may be required to testify about facts that are protected by professional confidentiality.

    The Code of Criminal Procedure also determines that people bound by professional confidentiality may never be compelled to testify. If the client waives the privilege, they can still refuse to testify if they do not want to.

    The breach of professional secrecy without good cause is considered a crime, as provided by article 154 of the Brazilian Criminal Code.

    Protected parties

  17. 9.To what extent does the privilege extend to in-house counsel? 
  18. The protection of confidentiality applies not only to the relationship between external attorneys and their clients, but also between a company and its in-house counsel, provided that the communication is related to legal matters.

    Communications with an in-house counsel acting as a director or an officer of the company, unrelated to legal matters, are generally not protected.

  19. 10.Does the privilege protect communications between an attorney and a corporate client’s employees? Under what circumstances?
  20. In general, products created due to an employment contract and within the scope of the employment are considered property of the employer.

    If the company’s attorney (either external or in-house) is communicating with the corporate clients’ employees regarding company issues, this communication is protected.

    Although there is no clear requirement under Brazilian law regarding these communications (ie, Upjohn warning), it is best practice to make it clear before any interaction that the attorney is representing the interest of the company and that the relationship with the employee does not configure a client–attorney relationship.

  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. There is no clear provision under Brazilian law regarding the extension of the duty of confidentiality. However, it is our understanding that other professionals acting under the supervision and coordination of an attorney are also bound to the duty of confidentiality.

    Therefore, the best means for a company to protect the confidentiality of the information when interacting with employees when gathering information is to follow the instructions of attorneys and report any progress and result through internal counsel.

  23. 12.Must the attorney be qualified to practise in your country to invoke the privilege?
  24. Attorney–client privilege, as provided for in the Statute of the Attorney, as well as the Code of Ethics and Discipline of the Brazilian Bar Association, is only applicable to qualified members of the Brazilian Bar.

    However, both under the Civil and Criminal Procedure Codes, an individual may not be compelled to testify about facts that are protected by professional confidentiality. In that sense, foreign attorneys can invoke professional confidentiality to refrain from testifying about facts learned from the client.

  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 discussed above, we understand that other professionals acting under the supervision and coordination of an attorney, in furtherance of a legal advice, are also bound to the duty of confidentiality.

    Recently, the Brazilian Bar Association in the state of São Paulo was consulted regarding the extension of the duty of confidentiality to other professionals (ie, accountants) working in the compliance department. It issued an opinion (E-5.185/2019) stating that the Bar Association is not competent to regulate other professions and that the confidentiality of the information should be internally preserved by the company’s own governance, with the adoption, for instance, of non-disclosure agreements.

  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. The privilege is held both by the client and by the attorney. Even if the client waives his privilege, an attorney may not be compelled to testify in cases in which he or she worked or about facts related to the persons he or she represented.

  31. 16.Can the privilege be waived? Who may waive it?
  32. Even if the client waives his or her privilege, an attorney may not be compelled to testify in cases in which he or she worked or about facts related to the persons he or she represented. A client can, however, waive the privilege by allowing the disclosure of confidential information or documents by the attorney.

  33. 17.Is waiver all or nothing? Is it possible to waive the privilege for certain communications but not others?
  34. Yes. If both client and attorney agree, confidential information may be disclosed partially.

  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. Under Brazilian law, the concept of joint defence does not exist. However, as discussed above, client–attorney communications are protected by the broad confidentiality principle.

    In a recent case, the Court of Appeals for the 1st Region (Case Records # 1000399-80.2019.4.01.0000) stated that the Duty of Confidentiality is extended to the client, but only to people who have a common interest in the facts investigated”, including potentially co-defendants.

  37. 19.Is it common for attorneys and clients to agree to a confidentiality provision in a contract?
  38. It is not common for attorneys and clients to agree to a confidentiality provision in a contract. The privilege is inherent to the legal activity, protected as a matter of public order. It is, therefore, unnecessary to adopt a confidentiality provision in an attorney-client relationship.

    The Brazilian Bar Association ruled that “the duty of confidentiality is essential and eternal and any contractual provision establishing a term to ensure its observance is innocuous” (Case Records No. E-4,496/2015).

    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. Professional Confidentiality is reflected in the Brazilian Constitution as a fundamental right.

    The Codes of Civil and Criminal Procedure bring procedural provisions that allow, in broad terms, for any individual bound by professional confidentiality not to be compelled to testify.

    In addition to that, the Statute of the Attorney (Law No. 8,906 of 1994), as well as the Code of Ethics and Discipline of the Brazilian Bar Association bring specific provisions regarding both the attorneys Duty of Confidentiality towards their clients and their prerogative not to be compelled to testify.

    Finally, the Code of Criminal Law defines breach of professional secrecy without good cause as a criminal offence.

  41. 21.Is the privilege primarily characterised as a procedural or evidentiary rule, or is it characterised as a substantive right? 
  42. The privilege is both considered as a procedural rule, regulated by the Code of Criminal Procedure and by the Code of Civil Procedure and as a right of the lawyer and of the client, generally provided by the Federal Constitution and specifically regulated by Federal Law No. 8,609/94.

  43. 22.Describe any differences in how the privilege is applied in the criminal, civil, regulatory or investigatory context. 
  44. Brazilian law does not provide any difference in how privilege is applied in the criminal, civil, regulatory or investigatory context.

  45. 23.Are the rules regarding the privilege uniform nationwide or are there regional variations within your country?
  46. Rules regarding the privilege are federal in nature and therefore must be uniformly applied nationwide. The Brazilian Bar Association can bring disciplinary action against attorneys in the state level. However, conflicting decisions must be submitted to the Federal Committee of the Bar Association, so that rules are applied uniformly.

  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) may bring disciplinary action against attorneys for violation of the duty of confidentiality. Federal Law No. 8,609/94 provides that violating the privilege without good cause is punishable with a censorship sanction and fine depending on the circumstances of the case. The recurrence of the violation could give cause to suspension or even permanent disbarment.

  49. 25.What sanctions do courts impose for violating the attorney–client privilege? 
  50. The violation of professional secrecy without good cause is considered a crime under article 154 of Brazilian Criminal Code and is punishable with penalties ranging from three months to one year of imprisonment or fines.

    Lawyers may also be subject to civil liability in malpractice lawsuits for failure to comply with their duty of confidentiality.

  51. 26.How can parties invoke the privilege during investigations or court proceedings? Can the privilege be invoked on the witness stand?
  52. The Brazilian Code of Civil Procedure determines that neither the party of the case (article 388) nor a listed witness (article 448) may be required to testify about facts that are protected by professional confidentiality.

    The Code of Criminal Procedure also determines that people bound by professional confidentiality may never be compelled to testify. If the client waives the privilege, they can still refuse to testify if they do not want to.

    This prerogative may be exercised both during investigations and court proceedings and may be invoked either before or on the witness stand.

  53. 27.In disputes relating to privilege, who typically bears the burden of proof? 
  54. Although disputes relating to privilege are not common in Brazil, as a rule, the burden of proof of a violation of the privilege will be borne by the person making the breach allegation.

  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 privilege also prevents third parties – such as public authorities – to access data and documents in possession or addressed to the attorney. Searches and seizures and other investigative measures must exclude the communications between attorneys and their clients as well as work product.

    Under article 7, § 6 of Federal Law No. 8.06/94, a court order to search and seize documents of an attorney’s office must only be allowed in cases where the attorney is under criminal investigation. The seizure must only concern the material related to the alleged criminal actions perpetrated by the attorney and may not include documents, objects, information or files related to clients, unless the client is also under investigation for the same facts.

    In cases where only the client is under investigation, documents held by the attorney may not be seized unless they are physical evidence of the crime.

  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 general, if the attorney is registered in Brazil, he must submit to the Brazilian rules related to attorney–client privilege and Brazilian courts may not apply foreign law if it conflicts with internal rules that are considered of public order, such as Federal Law No. 8,906/94 and the Codes of Criminal and Civil Procedure.

    Termination of the privilege

  59. 30.Does the privilege terminate on the death of either the attorney or the client?
  60. No. Both the Brazilian Bar Association and Brazilian courts have ruled that the duty of confidentiality is perpetual.

  61. 31.

    Does the privilege terminate on the conclusion of the attorney–client relationship?

  62. No. Both the Brazilian Bar Association and Brazilian courts have ruled that the duty of confidentiality is perpetual.

    The Court of Ethics and Discipline of the Brazilian Bar Association when interpreting article 26 of the Code of Ethics and Discipline of the Brazilian Bar Association, reaffirmed that the attorney must not violate the privilege regarding former clients when testifying as a witness.

  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 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. As discussed above, the protection of attorney-client communication in Brazil is grounded on the general duty of confidentiality imposed on attorneys (and other professionals) and not on a specific doctrine that grants secrecy of privileged information.

    In that sense, although inadvertent disclosure of confidential information does not constitute a waiver of the privilege, the person who received the information will generally not be bound by the duty of confidentiality and may disclose it.

  67. 34.Is the privilege terminated if a third party is included in the communication or is subsequently forwarded the communication?
  68. As discussed above, the protection of attorney-client communication in Brazil is grounded on the general duty of confidentiality imposed on attorneys (and other professionals) and not on a specific doctrine that grants secrecy of privileged information. If a third party is included in the communication as an agent for the attorney, he or she may also be bound by the duty of confidentiality. If not, the party may not have any duty to maintain the confidentiality of the information.

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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?