The Revised Swiss Civil Procedure Code

Extending Legal Privilege to In-House Counsel

Status update with Anthony Braham.

On 1 January 2025, a significant amendment to the Swiss Civil Procedure Code (CPC) came into effect, granting in-house counsel the same level of protection for secrecy as outside counsel—a protection that has been notably absent in Swiss law until now. This development marks a crucial shift in Swiss legal practice, aligning it more closely with international standards and addressing long-standing concerns within the Swiss legal and corporate communities.

Legal Privilege in Switzerland

In Switzerland, attorney-client privilege operates similarly to that in many other civil and common law jurisdictions. An avocat or Rechtsanwalt—the Swiss equivalent of an attorney or barrister—is bound by a duty of strict confidentiality regarding all communications with clients, regardless of the medium. Breaches of this duty can result in civil, professional, and criminal sanctions.

A Swiss avocat may refuse to testify, provide evidence, or produce any documents that fall within the scope of this privilege.

Why Legal Privilege Has Not Applied to In-House Counsel

The reason lies in the regulatory structure governing the legal profession in Switzerland.

Practicing avocats in Switzerland must register with a State body that supervises those who represent multiple clients before courts and authorities. Typically, this body is the highest court of a canton, such as the Tribunal Cantonal in Vaud, the Commission du Barreau in Geneva, or the Zürcher Anwaltsverband in Zurich. However, when avocats transition to in-house roles, they must “leave the Bar,” effectively removing themselves from the list of practicing attorneys. Consequently, the legal protections afforded to practicing avocats no longer apply to them as in-house counsel.

This approach contrasts sharply with that of common law jurisdictions like the United States and the United Kingdom, where attorney-client privilege uniformly extends to all practicing attorneys, including those working in-house. In the U.S., for instance, all lawyers, regardless of their employment context, must be admitted to the Bar, and attorney-client privilege applies equally to in-house and external lawyers. The UK follows a similar approach.

In several civil law jurisdictions, such as France, Belgium, Germany, and the Netherlands, in-house counsel receive varying degrees of legal privilege, particularly when the counsel holds a Bar-equivalent degree. However, the scope and consistency of these protections can vary.

Implications for Swiss-Based Companies

The absence of privilege protection for in-house counsel has been a significant concern for Swiss-based companies, particularly those involved in international litigation. Without such protection, companies face the risk of being compelled to disclose communications from their in-house counsel in cross-border disputes, especially in U.S. litigation. This exposure has placed Swiss companies at a disadvantage compared to their U.S. counterparts, who can withhold similar communications under the protection of legal privilege.

Introduction of Article 167a CPC

The new Article 167a of the CPC aims to address this gap by extending privilege to in-house counsel under specific conditions. According to Article 167a, paragraph 1, a party may refuse to cooperate and produce documents related to the activities of its in-house legal department if the following criteria are met:

1. The party is registered as a legal entity in the Swiss commercial registry or an equivalent foreign registry.
2. The head of the legal department holds a cantonal avocat degree or meets the professional requirements to practice as an attorney in their country of origin.
3. The activity in question would be considered specific to the exercise of an avocat’s profession if carried out by an avocat.

The privilege also extends to non-lawyers working in the legal department, provided the department is led by an avocat or an equivalent attorney. However, this protection is limited to activities considered “specific to the exercise” of an avocat’s profession. Activities outside this scope, such as political, social, or commercial tasks, are not protected.

This limitation is expected to generate debate in certain cases. For example, if an in-house lawyer leads an internal compliance investigation, questions may arise as to whether this constitutes a typical legal activity and whether related communications should be protected. The reporting line of the lawyer—specifically whether the lawyer or the compliance department reports to the General Counsel—may be a key factor in such determinations.

Challenges and Enforceability

While the introduction of Article 167a is a positive step, its enforceability in international contexts, particularly in U.S. litigation, remains a subject of debate. The rules of evidence and discovery in U.S. Federal and State Courts differ significantly from those in Switzerland. However, U.S. courts may recognize the Swiss “brevet” (authorization to practice) as equivalent to a U.S. attorney’s license, thereby extending attorney-client privilege to “juristes” working under the supervision of an “avocat breveté” by analogy to the “agent or subordinate” of a U.S. attorney.

Conclusion

The revision represents a long-awaited advancement in protecting in-house counsel communications in Switzerland. While the practical enforcement of Article 167a will depend on judicial interpretation and case law, it is a crucial development for Swiss companies, offering them much-needed protection in an increasingly globalized legal environment.