Legal privilege in Ukraine: concepts, boundaries and exceptions

Recognition of legal privilege under Ukrainian law 

According to the relevant legislation governing the activities of lawyers in Ukraine, namely Article 22 of the Law of Ukraine “On the Bar and Legal Practice”, the concept of attorney-client privilege is established.  It includes any information that becomes known to a lawyer, a lawyer’s assistant, a lawyer’s intern, a person who is in an employment relationship with a lawyer, about a client, as well as issues on which the client (a person who has been refused a contract for the provision of legal assistance on the grounds provided for by the relevant law) has applied to a lawyer, law firm or law association, the content of the lawyer’s advice, consultations and explanations, the documents drafted by the lawyer, information stored on electronic media, and other documents and information obtained by the lawyer in the course of their professional activities. 

Article 23 of the Law of Ukraine “On the Bar and Legal Practice” clearly states that the attorney-client privilege is absolute and cannot be disclosed.  

The Criminal Procedure Code of Ukraine (hereinafter referred to as the CPC of Ukraine) also establishes provisions protecting legal privilege, in the following articles: 

• Article 47 (Duties of defence counsel) — Without the consent of the suspect or accused, defence counsel shall not disclose information obtained in connection with his participation in criminal proceedings, which constitutes attorney-client privilege or other legally protected secrecy;  
• Article 65 (Persons who may not be questioned as witnesses) — lawyers cannot be questioned about information constituting attorney-client privilege; 
• Article 161 (Items and documents inaccessible to parties to criminal proceedings by court order) — includes: 1) correspondence or other forms of information exchange between defence counsel and a client or a client’s representative in connection with legal assistance; 2) items attached to such correspondence or other forms of information exchange. 
• Article 224 (Interrogation) — A person has the right not to answer questions concerning matters expressly prohibited by law (confidentiality of confession, medical confidentiality, professional secrecy of defence lawyer, confidentiality of deliberations, etc.). 

Scope of attorney-client privilege  

Article 10 of the Rules of Professional Conduct for Lawyers specifies the provisions of the law mentioned above and defines that legal privilege includes:  

• the very fact that a person has sought legal assistance; 
• any information that has become known to a lawyer, law firm, law association, a lawyer’s assistant, a trainee, or any other person employed by a lawyer (law firm, law association) in connection with the provision of professional legal assistance or a person’s request for such assistance; 
• the content of any communication, correspondence, or other exchanges (including by electronic means) between a lawyer, a lawyer’s assistant, a trainee, and a client or a person who has requested professional legal assistance; 
• the content of advice, consultations, explanations, documents, information, materials, items, information prepared, collected, or received by a lawyer, a lawyer’s assistant, a trainee, or provided by them to a client as part of professional legal assistance or other types of legal practice. 

Exceptions to attorney-client privilege  

Information and documents may lose their status as attorney-client privilege with the consent of the client or a person who has been refused a contract for the provision of professional legal assistance, as set out in their written statement. At the same time, to protect their professional rights and guarantees of legal practice, lawyers have the right to continue to keep such information and documents confidential. 

Suppose a client or a person who has sought professional legal assistance makes any claims against a lawyer in connection with the lawyer’s professional activities. In that case, the lawyer shall be released from the obligation to maintain attorney-client privilege (confidential information) to the extent necessary to protect his or her rights and interests. 

A lawyer who provides (or has provided) free secondary legal aid, without the written consent of the person in respect of whom the decision to provide free secondary legal aid was made, shall not have the right to transfer any information, items, and documents containing attorney-client privilege to any third parties, except to persons conducting disciplinary proceedings. A lawyer may, but is not obliged to, provide such information, items and documents to persons authorised to assess the quality, completeness, and timeliness of the provision of free legal aid or to a lawyer who is subsequently engaged on the basis of a contract or power of attorney to provide legal assistance. 

At the same time, the limits of the legal privilege are not absolute. It does not apply to the following situations. 

3.1. Crime–fraud exception 

When the lawyer himself becomes a participant in a crime, in particular when he knowingly contributes to its commission. Suppose a lawyer gives a client advice aimed at facilitating the commission of an offence, helps to circumvent the law, falsifies evidence, or conspires with the client to carry out a criminal plan. In that case, such conduct is not protected by the attorney-client privilege. In this case, we are no longer discussing the professional activity of a lawyer, but rather their possible criminal complicity. The law expressly prohibits a lawyer from accepting a mandate if its content or the means of achieving the result insisted upon by the client are unlawful. If a lawyer discovers that a client is demanding actions that are contrary to the law or is setting tasks that go beyond the scope of a lawyer’s powers, he or she is obliged to provide the client with appropriate explanations. If no agreement can be reached, the lawyer must refuse to conclude the contract under Article 28 of the Law of Ukraine “On the Bar and Legal Practice”. 

3.2. Statutory exceptions (AML / Compliance obligations) 

According to Parts 6 and 7 of Article 22 of the Law of Ukraine “On the Bar and Legal Practice”, a lawyer does not breach confidentiality if, in cases provided for by law, he or she submits information to a specially authorised body – the central executive body responsible for state policy in the field of preventing and combating the legalisation (laundering) of proceeds obtained by criminal means, financing of terrorism and proliferation of weapons of mass destruction, and to the keeper of the Unified State Register of Legal Entities, Individual Entrepreneurs, and Public Organisations. The submission of such information does not constitute a breach of the legal privilege.  

Thus, according to Article 10 of the Law of Ukraine “On Prevention and Counteraction to Legalisation (Laundering) of Criminal Proceeds, Terrorist Financing and Financing of Proliferation of Weapons of Mass Destruction” No. 361-IX (hereinafter referred to as Law No. 361-IX), lawyers practising individually, law firms, and associations perform the duties of special primary financial monitoring entities if they participate, acting on behalf of and/or on the instructions of a client, in any financial transaction and/or assist the client in planning or carrying out a transaction relating to: 

1. the purchase or sale of real estate or property management in the financing of housing construction; 
2. the purchase or sale of business entities and corporate rights; 
3. management of the client’s funds, securities, or other assets; 
4. opening and/or managing a bank account or securities account; 
5. raising funds necessary for the establishment of legal entities and funds, ensuring their activities, or managing them; 
6. establishment, operation, or management of legal entities, funds, trusts, or other similar legal entities. 

In these situations, they are specifically required to: 

• carry out proper client due diligence (including identification and verification of the client and its ultimate beneficial owner, establishing (understanding) the purpose and nature of the future business relationship or financial transaction, etc.); 
• notify the specially authorised body of suspicious financial transactions¹ or discrepancies between the information about the client’s ultimate beneficial owners, contained in the Unified State Register of Legal Entities, Individual Entrepreneurs and Public Organisations, and information about the ultimate beneficial owners, obtained as a result of due diligence of the client. 

In such a case, the lawyer shall not bear any legal liability — disciplinary, administrative, civil or criminal — for providing information about a financial transaction, the ultimate beneficial owner or the ownership structure of a legal entity, or for other actions provided for by Law No. 361-IX, even if such actions cause damage to third parties. The main condition is compliance with the limits and procedure provided for by Law No. 361-IX.  

At the same time, according to Part 3 of Article 10 of Law No. 361-IX, law firms, law associations, lawyers practising individually, persons providing legal services may not perform their duties to conduct proper client due diligence and may not notify the specially authorised body of their suspicions when providing services to defend a client, represent their interests in court and pre-trial dispute resolution or provide advice on the defence and representation of a client. 

3.3. Tax disclosure obligations 

If a lawyer manages activities, assets, or property (is a trustee) or performs the duties of an administrator of such a trust, then under Part 8 of Article 22 of the Law of Ukraine “On the Bar and Legal Practice”, he is obliged, upon a reasoned written request from the tax authority, to provide information and documents relating to the trust and specified in Article 44 (2) of the Tax Code of Ukraine. 

Thus, the legal privilege cannot be used as a tool to conceal criminal activity. If, in the course of providing legal assistance, a lawyer goes beyond the limits of the law and participates in the commission of an offence, such activity should be classified not as the exercise of professional rights, but as complicity in a crime. In such cases, both disciplinary and criminal liability mechanisms may be applied to the lawyer. 

Circumstances under which investigating authorities or prosecutors can access privileged material 

Legal professional privilege is reliably protected by law, and any interference in this area is permitted only in exceptional cases and under a clearly defined procedure. 

Disclosure of information constituting attorney-client privilege is prohibited under any circumstances, including unlawful attempts by pre-trial investigation authorities and courts to question a lawyer about privileged matters. 

In accordance with Article 47 of the CPC of Ukraine, a defence counsel is obliged to use all means provided by law to ensure the realisation of the rights and legitimate interests of the suspect or accused, including for the purpose of clarifying circumstances that exclude or mitigate criminal liability. At the same time, without the direct consent of the client, the defence counsel does not have the right to disclose information that constitutes an attorney’s or other legally protected secret. 

The law expressly prohibits the examination of a defence counsel as a witness regarding information constituting attorney-client privilege (Articles 65 and 224 of the CPC of Ukraine).  

Separately, the legislator has established a strict prohibition on temporary access, based on a court order, to correspondence or any other forms of information exchange between a defence counsel and a client (Articles 160–161 of the CPC of Ukraine). Access to any objects attached to such information exchange is also prohibited. Such information is subject to absolute protection by law, and its acquisition in such a procedural order is expressly prohibited. 

However, within the scope of procedural actions such as search, inspection, or temporary access to premises where an attorney carries out their activities, the law provides for a special procedure. The relevant decision (ruling) of the investigating judge must contain a clear list of items and documents that are to be searched for or seized. In addition, such actions must be carried out with the participation of a representative of the regional bar association, who has the right to ask questions, make comments, and objections, which are recorded in the minutes. 

According to Article 87 of the CPC of Ukraine, evidence obtained as a result of a significant violation of human rights and freedoms is inadmissible. Such violations include, in particular, the unlawful obtaining of information protected by attorney-client privilege (in the context of a violation of the right to defence) or the conduct of procedural actions without the permission of the court. The use of such evidence in court is a violation of the principle of the rule of law and the right to defence. 

Finally, any obstruction of the lawful activities of a lawyer or violation of the guarantees of the legal privilege is a criminal offence under Article 397 of the Criminal Code of Ukraine. This provision is intended not only to protect the lawyer as an individual, but above all to ensure a fair trial and guarantee the effective right of everyone to a defence. 

Access to privileged material by third parties  

Access to privileged material by third parties is exceptional and strictly regulated by law. Attorney-client privilege is not subject to disclosure, and access to materials containing it (e.g., correspondence with the client, consultations, etc.) is prohibited. However, an exception is possible if the client expressly releases the lawyer from the duty of confidentiality in writing under Part 3 of Article 65 of the CPC of Ukraine. In such a case, the lawyer may disclose the relevant information within the limits specified by the client. There are no other legal mechanisms enabling third parties to obtain such information. In particular, authorities are expressly prohibited from requesting, seizing, or disclosing documents of a lawyer that contain the legal privilege. 

Disclosure to other professional advisers: impact on attorney-client privilege 

Ukrainian law does not provide for the loss of legal privilege if materials or information are transferred to another professional (e.g., an auditor, tax advisor, or other lawyer) acting in the interests of the same client, and such transfer is made on a confidential basis and within the scope of the provision of legal assistance. 

Exclusion of unlawfully obtained privileged material in legal proceedings  

An important aspect is that the legal privilege is essential in the process of proving facts in court proceedings. Since any information disclosed by a lawyer may be used as evidence, its protection makes it impossible to use such data without a valid legal basis. 

According to Article 87 of the CPC of Ukraine, evidence obtained as a result of a substantial violation of human rights is inadmissible. Illegal interference in the communication between an attorney and a client or obtaining materials containing the legal privilege is such a substantial violation. Therefore, firstly, such materials will be excluded from the evidence base. Secondly, they cannot be used in court, and any derivative evidence obtained with their help is also considered inadmissible (the “fruit of the poisoned tree” effect). 

Thus, the law categorically prohibits the use in court proceedings of any evidence obtained through a breach of the legal privilege. 

Conclusion 

The protection of attorney-client privilege is a fundamental component of Ukraine’s legal system, ensuring both the integrity of legal proceedings and the safeguarding of individuals’ rights. However, this privilege is not absolute and may be subject to limitations in specific circumstances. This underscores the importance of adherence to legal norms and the ethical standards that govern the legal profession. 

Author: Igor Glushko,

Partner at GOLAW, Head of Criminal Law and White Collar Defence practice, Attorney at law