Lex Mundi Article "Attorney-Client /Solicitor-Client Privilege (ACP)" prepared in cooperation with PRK Partners

PRK Partners cooperated with Lex Mundi on the preparation of a guide on Attorney-Client Privilege from a Czech jurisdiction perspective. Lex Mundi is the world's largest law firm network and PRK Partners is the exclusive member for the Czech Republic. This guide provides relevant information on attorney-client or solicitor-client privilege in numerous common and civil law jurisdictions around the world, including privilege in corporations, common interest doctrine, litigation funding, crime-fraud exception and litigation privilege. The link is available here.

This overview is provided by PRK Partners, Lex Mundi member firm for Czech Republic. 
Contributors: Robert Němec

Attorney-Client/Solicitor-Client Privilege (ACP)

Is the ACP recognized in your jurisdiction?


No, Czech jurisdiction generally does not recognize the ACP. But in European Union Law, which is binding in the Czech Republic, the ACP is applied in Competition law. The Commission investigating infringements of the competition rules may require submitting necessary information and documents and carry out the necessary inspections and investigations in accordance with articles 18 and 20 of Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty (now Articles 101 and 102 of the Treaty on the Functioning of the European Union (TFEU). Neither articles 101 and 102 TFEU nor the abovementioned Regulation contains specific rules on the protection of communication. Nevertheless, the Court of Justice of the European Union in its judgments stated that the protection of communication between the lawyer and the accused company has to be respected. The Commission may require only documents that are necessary for the investigation. Protection of confidential communication will only apply if communication takes place between the client and an independent lawyer (i.e. if there is no employment relationship between the client and the lawyer). The EU Court of Justice refused to extend the scope of protection to in-house lawyers. See case C-550/07 P Akzo Nobel Chemicals Limited and Akcros Chemicals Limited v Commission of the European Communities [2010] and case 155/79 AM & S Europe v Commission of the European Communities [1982].

If the ACP is not recognized in your jurisdiction, are there rules of professional confidentiality or other rules that would enable a lawyer or a client to withhold attorney-client communications or work product prepared by counsel from disclosure in a civil proceeding?

Note: This question is directed primarily to civil law jurisdictions that do not recognize common law jurisdictions’ privilege doctrines.


Under article 21 of Act No. 85/1996 Coll., on the Legal Profession, the lawyers are obliged to preserve professional confidentiality regarding any facts known to them in connection with their provision of legal services. Lawyers cannot rely on the duty of professional confidentiality in:

  • disciplinary proceedings;
  • in case of the crime-fraud exception (see section I, par. E);
  • when they fulfil duties under special legislation against the legalization of proceeds of crime (see section I, par. E);
  • when they fulfil their duties as a taxpayer imposed on them in the Tax Code.

Under article 124 of Act No. 99/1963 Coll., Civil Procedure Code, the evidence must be carried out in the manner that the duty to maintain confidentiality provided by law. The examination may be carried out only if the examined person has been relieved of the duty of maintaining confidentiality by the competent authority or by the person in whose favor the duty is.

  • The duty of professional confidentiality is extended to employees of a lawyer or a company established by lawyers solely to practice a legal profession, as well as other persons providing the legal services with a lawyer or a company.

Other sources of confidentiality duties imposed on lawyers:

  • Resolution of the Czech Bar Association, Bulletin No. 1/1997, establishing Rules of Professional Ethics, articles 4-10 (principles of professional ethics);
  • Code of Ethical Conduct for Lawyers in the European Union, article 2.3.1-2.3.4 (general duties of professional confidentiality).

The consequences of breaking the obligation of professional confidentiality are:

  • disciplinary sanctions under Act No. 85/1996 Coll., on the Legal Profession (articles 32-35e - disciplinary proceedings) and under Decree of Ministry of Justice No. 244/1996 Coll., providing Disciplinary Rules for Lawyers under Act No. 85/1996 Coll.;
  • civil liability for damages caused by the breach of duty imposed by law (article 24 of Act No. 85/1996 Coll., on the Legal Profession, in conjunction with Act No. 89/2012 Coll., the Civil Code);
  • or even criminal liability (e.g. criminal offence of Illicit Disposal with Personal Data under article 180 of Act No. 40/2009 Coll., Criminal Code). 

Is a distinction made in applying the ACP or professional confidentiality rules in civil and criminal proceedings? May government authorities require disclosure of attorney-client communications and legal work product?


Regarding the civil proceedings please refer to Section 2.

As for the criminal proceedings, Act No. 141/1961 Coll., on Criminal Procedure, specified the rules on professional confidentiality. Under its article 85b, when conducting a house search or search of other premises in which a lawyer practices law, the authority performing the search must seek the cooperation of the Czech Bar Association. If the representative of the Czech Bar Association refuses to grant an approval, the documents must be secured so their contents cannot be examined by anyone. The consent of the Czech Bar Association may be replaced by the decision of the judge. Under article 99 par. 2 of the Criminal Procedure Code a lawyer as a witness must not be questioned if by giving the testimony he would breach a duty of professional confidentiality imposed by the State unless he was relieved of this duty by a competent authority or by the person for whose benefit was this duty imposed.

In the corporate context, what test is applied to determine who within a corporation is considered the client for the purposes of the ACP?  (e.g., in the U.S.: the Upjohn approach, control group test, etc.)



Is in-house counsel expected to meet a higher burden than outside counsel in order to establish that privilege applies to in-house counsel’s communications? 



Civil Law Jurisdictions: May in-house counsel assert privilege or professional confidentiality?


Czech law strictly distinguishes between external and internal counsel as regards the availability of privilege to protect from the disclosure of communication. Only external counsel, i.e. members of the Czech Bar Association, is subject to the Act on the Legal Profession, which provides for the right and obligation of attorneys not to divulge any information obtained in the course of providing legal services. As to in-house counsel, no generally applicable legislation exists which would classify the communication between the counsel and his or her employer as privileged. In a limited number of cases, such communication may be subject to a special duty to maintain confidentiality (typically, in-house counsel at state organizations or regulated businesses may be subject to non-disclosure requirements). Some believe that the duty not to divulge confidential information is implied in employees' general obligation to refrain from actions that are contrary to the employer's legitimate interests. Attempts are sometimes made to strengthen restrictions on disclosure by incorporating confidentiality clauses into employment agreements with in-house counsel or corporate by-laws. However, the proposition that such arrangements will create a privileged relationship is unsustainable.

Civil Law Jurisdictions: Is in-house counsel allowed to be active members of your jurisdiction’s bar?

No, in-house counsels are not allowed to be members of the Czech Bar Association.

Is the common interest doctrine recognized in your jurisdiction?

No, Czech jurisdiction does not recognize the common interest doctrine.

How is the doctrine articulated in your jurisdiction?

See above.

Must a common interest agreement be in writing?

See above.

Is litigation funding permitted in your jurisdiction?  Are there any professional rules in this respect?

There is no rule regarding litigation funding in Czech jurisdiction.

Have the courts in your jurisdiction addressed whether communications with litigation funders may be protected by the ACP or the work-product protection

See above.


Is the crime-fraud exception recognized in your jurisdiction?


Yes, professional confidentiality does not cover situations where communications are related to crime. The exception is only applied when the client is in the process of committing a crime or planning to commit a crime and only for the specific crimes listed in the Penal Code. Failing to do may lead to the criminal liability of a lawyer. Lawyers are not obliged to report a crime if the crime has been already committed and lawyers learn of it in connection with the practice of their legal profession. 

Lawyers are also obliged entities to detect and report suspicious activity including the predicate offenses to money laundering and terrorist financing under Act No. 253/2008 Coll. on Selected Measures against Legitimisation of Proceeds of Crime and Financing of Terrorism and Act No. 85/1996 Coll., on the Legal Profession.

What statutes or key court decisions articulate the crime-fraud exception in your jurisdiction?

Act No. 40/2009 Coll., the Penal Code, article 367 and 368.

Work Product Doctrine/Litigation Privilege (doctrine that protects materials prepared in anticipation of litigation or for trial)

Is there a statute or rule that protects information obtained or prepared in anticipation of litigation from disclosure in legal proceedings?  (In the U.S.:  What state rule is your jurisdiction’s analog to FRCP 26(b)(3)?)

This type of information is protected only within the scope of professional confidentiality of lawyers under Act No. 85/1996 Coll., on the Legal Profession. 


What are the elements of the protection in your jurisdiction?

See above.

Other Privileges

Does your jurisdiction recognize an accountant-client privilege?


Tax advisors are obliged to preserve similar professional confidentiality as lawyers regarding any facts known to them in connection with their provision of tax consultancy. 

Does your jurisdiction recognize a mediation privilege?

Only if a mediator is a lawyer at the same time.

Does your jurisdiction recognize a settlement negotiation privilege?

No, Czech jurisdiction does not recognize a settlement negotiation privilege.

Please be advised that the information set forth above is intended only as a general overview of the law. This entry is not intended to constitute legal advice or a tax opinion, and no conclusions may be inferred from or are implied by the statements or discussions contained herein. Readers requiring legal advice should not rely on this entry as an alternative to the engagement of local counsel and should consult with the Lex Mundi member firm in the relevant jurisdiction. Please note that this entry refers to laws and regulations in force on the date of submission by the contributing Lex Mundi member firm and is subject to change by future legislation.