Global Guide to Attorney-Client Privilege 2021 – Civil Law

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Attorney-Client/Attorney-Client Privilege (ACP)

Is the CPA recognized in your jurisdiction?

As a civil law jurisdiction, Thailand does not recognize the concept of common law privilege (ACP), although there is a recognized general equivalent (see below).

If the CPA is not recognized in your jurisdiction, are there any rules of professional confidentiality or other rules that would permit an attorney or client to withhold attorney-client communications in a civil proceeding? or the work product prepared by the lawyer?

Note: This question is primarily for civil law jurisdictions that do not recognize common law jurisdiction doctrines of privilege.

[1] While the specific common law principle of CPA, Thai law contains a general equivalent of legal solicitor-client privilege where attorneys are prohibited from disclosing a client’s confidential information. A lawyer may only disclose this information if the client consents or if a court orders disclosure.

The applicable provision is Article 11 of the Lawyers’ Council Regulations on the Conduct of Lawyers BE 2529 (1986) (“Lawyers’ Rules”), which state: “A lawyer shall not disclose confidential client information of which he has knowledge of the in the performance of his duties as a lawyer, unless the client’s consent has been obtained or is given pursuant to a court order.”

Privilege attaches to any document provided by a client to an attorney that contains confidential information about the client. Such materials are not specifically defined in law, but would include legal notices and opinions; documents generated in connection with the provision of advice (for example, the lawyer’s work product); and confidential communications between lawyer and client.

Other types of documents to which the privilege attaches include: documents containing confidential official/governmental information; documents containing confidential trade/design secrets; and, in the criminal context, confidential documents acquired by a person’s profession or duty.

In addition, Section 92 of the Civil and Commercial Code of Thailand provides that a person from whom testimony or evidence is requested has the right to refuse to provide such testimony or evidence which may result in the disclosure of “any document or confidential fact which has been confided or communicated by a party to him in his capacity as counsel”.

A court has the power to compel the production of all these documents.

Remarks:

[1] This question is primarily for civil law jurisdictions that do not recognize the doctrines of privilege of common law jurisdictions.

Is there a distinction in the application of ACP rules or professional secrecy in civil and criminal matters? Can government authorities require disclosure of attorney-client communications and legal work product?

Thai law provides for different types of privileges in civil and criminal contexts.

Civil

Section 92 of the Thai Civil Procedure Code governs privilege in civil actions. The section 92 lien can be summarized as follows:

If a party is required to testify or present any type of evidence in court, and the testimony or evidence may disclose: (1) official documents or information relating to affairs of state; (2) confidential documents or information given by a party to an attorney in his or her capacity as an attorney; or (3) any invention, design or other work protected from publicity by law, then the party may refuse to give the testimony or evidence, unless permission for disclosure is granted by “the competent officer or any related person”.

Under section 92, the court has the power to examine the reason for the refusal and, if the reason is unsatisfactory, to require the production of testimony or evidence.

Criminal

Section 231 of Thailand’s Code of Criminal Procedure governs privilege in criminal prosecutions. The privilege provided for in section 231 can be summarized as follows:

Where a party is required to give or produce evidence regarding: (1) confidential official information; (2) confidential documents or facts acquired in the course of that party’s profession or office; or (3) trade secrets, design secrets, etc., that party may refuse to provide such evidence unless permission is granted by the governmental authority or person involved in the confidential information.

The court also has the power to review and overturn the refusal, if it finds that there are insufficient grounds to support a request.

In the corporate context, what criteria is applied to determine who within a company is considered the customer for PCA purposes? (e.g. in the US: Upjohn’s approach, control group test, etc.)

We are not aware of any Supreme Court cases dealing with PCA issues in Thailand, including PCA-related ones. Since only Supreme Court decisions are published and made available to the public, challenges made at the intermediate appellate level or directly to lower courts are neither publicly accessible nor convincing.

Does in-house counsel bear a greater burden than outside counsel to establish that privilege applies to in-house counsel’s communications?

Thai law makes no distinction between in-house and outside attorneys, provided they are licensed. We are of the view that, subject to the nature of the information provided by the company to in-house counsel, the company would be considered a “client” under Article 11 of the Lawyers Rules.

Civil law jurisdictions: Can the in-house lawyer invoke professional secrecy or professional secrecy?

See above.

Civil Law Jurisdictions: Are in-house attorneys permitted to be active members of the bar in your jurisdiction?

Yes. There are no restrictions on licensed Thai lawyers acting as in-house legal advisers.

Is the common interest doctrine recognized in your jurisdiction?

We are not aware that this issue has ever arisen in ACP disputes at the publicly accessible Supreme Court level.

How is the doctrine articulated in your jurisdiction?

N / A

Does a common interest agreement need to be in writing?

N / A

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

Ask the courts in your jurisdiction to determine whether communications with litigation funders may be protected by CPA or work product protection

No. The Supreme Court did not address this issue.

Is the crime-fraud exception recognized in your jurisdiction?

There is no criminal fraud exception recognized by Thai law. That said, parties, such as prosecutors and law enforcement, can seek orders or subpoenas to compel disclosure. Courts have wide discretion in determining whether to require disclosure in such cases and we are of the view that a court would be more likely to require disclosure in cases where communications are made for future crime or fraud.

What key laws or court decisions articulate the fraud exception in your jurisdiction?

This is not addressed in the statute law or in the available Supreme Court decisions. Where this type of exception to privilege is challenged, it would be at the lower and appellate court levels, the two levels not accessible to the public and unconvincing for future cases.

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

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

Nope

What are the elements of protection in your jurisdiction?

There are no defined elements for ACP protection in Thai jurisdiction.

Other privileges

Does your jurisdiction recognize an accountant-client privilege?

There is no specific accountant-client privilege recognized in the Thai jurisdiction.

Does your jurisdiction recognize a mediation privilege?

There is no recognized mediation privilege in Thai jurisdiction.

Does your jurisdiction recognize a settlement negotiation privilege?

There is no recognized settlement negotiation privilege in Thai jurisdiction.

Originally posted by Global Guide to Attorney-Client Privilege, Lex Mundi.

The content of this article is intended to provide a general guide on the subject. Specialist advice should be sought regarding your particular situation.

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