ACP is recognized in Indonesia's jurisdiction although it is not per se within the context of testimonial privilege. Professional confidentiality is stipulated in the Advocates Law (Law No. 18 of 2003 on Advocates) and the Indonesian Advocates Code of Ethics (Code of Ethics), and it can be overridden by other prevailing laws and regulations if the condition requires.  

Note: Under Indonesian law, any person qualified to render professional legal services in or out of court is termed an Advocate.

The Advocates Law and Code of Ethics stipulate that an advocate must keep confidential all information obtained from a client, even after termination of the representation of the client (Article 19 (1) of Advocates Law, and Article 4 (h) of Code of Ethics). Furthermore, Advocates are entitled to keep their interactions with a client confidential and enjoy the protection of their files and documents from seizure or inspection, and against interference from electronic communication (Article 19 (2) of Advocates Law). However, as briefly mentioned above, testimonial privilege is not recognized per se.

Under Article 146 (1) Indonesian Civil Procedure Law (Herzien Inlandsch Reglement, “HIR”), certain subjects or individuals may recuse themselves from testifying before the court (in-laws of the disputing parties, blood relatives of any disputing parties, or persons who have a professional duty of confidentiality, such as clergy, advocates, physicians, etc.). At their request, the judges may release these people from their obligation to testify as witnesses. However, this exception is not absolute, as it is at a judge’s discretion (Article 146 (2) HIR).

The Advocates Law and Code of Ethics do not differentiate between the rules applicable in civil and criminal proceedings.

Indonesian criminal procedure law also recognizes an exception to the obligation to testify for persons with a professional duty of confidentiality (Article 170 (1) Law No. 8 of 1981 on Criminal Procedure). Judges have full authority to determine whether to release a person from an obligation to testify (Article 170 (2) Criminal Procedure Law).

Furthermore, as briefly stated above,  in corruption cases, the ACP may be breached, as Articles 35 and 36 of Law No. 31 of 1999 on Corruption Eradication provide that everyone is under an obligation to testify as a witness or expert before the Court, apart from members of the direct family of the defendant. The obligation to testify even applies to persons with a professional duty of confidentiality, except Catholic clergy.

With regard to mandatory disclosure of client affairs, advocates (and other professional advisors, such as accountants, notaries, and financial planners) are obligated to report suspicious transactions that might indicate a client’s involvement in money laundering, to the Financial Transaction Report and Analysis Center (“PPATK”).

This obligation is codified in Government Regulation No. 43 of 2015 on the Reporting Party in the Prevention and Eradication of Money Laundering, as amended by Government Regulation No. 61 of 2021 (“GR 43/2015”).

In its elucidation, GR 43/2015 stipulates that the reporting obligation on advocates (and other professional advisors) functions to provide an exception to their duty to professional confidentiality (often abused to conceal money laundering activities). However, the reporting obligation does not apply if the information is discovered by an advocate during the representation of a client in litigation, arbitration, or alternative dispute resolution, or during a legal due diligence/legal audit.

The Advocate Law and Code of Ethics do not define the client, and there is no test to determine who might be considered a client within a corporate context/setting.

In-house counsel may serve as an advocate, although may be deemed an employee rather than an independent party (if an employment contract binds in-house counsel and the company).  As it is still unclear whether in-house counsel is regarded as advocates under the Advocates Law, they may face a more stringent burden of proof in establishing attorney-client confidentiality over communication with their company or employer (elaborated on below).

This is still unclear.

It is possible that in-house counsel who had been officially appointed as advocates, assert such privilege or professional confidentiality. However, to the best of our knowledge, this has not been tested.

For your reference, the Advocates Law defines the term ‘Advocate’ as a person qualified (having completed a legal professional course, similar to a bar exam) to provide professional legal services in or outside court. The Advocates Code of Ethics expands the definition ‘Advocates’ to include advocates, lawyers, legal counsel, practicing lawyers, and legal consultants. Therefore, based strictly on the definition, in-house counsel can also be deemed as ‘Advocates’ and therefore should enjoy the same degree of professional confidentiality and protection conferred by the Advocates Law.

However, according to the Advocates Law and Code of Ethics, an element of an advocate-client relationship is the honorarium received by the advocate from the client for the legal services rendered. As in-house counsel normally receives a salary instead of an honorarium, they are not considered advocates, but company employees instead. Accordingly, in-house counsel is not bound by rules on professional confidentiality. This also means that they can be compelled to testify about their employer in civil and criminal proceedings.

In practice it is common for in-house lawyers/salaried legal officers to testify about their employer, should a court require them to do so.

Yes. In-house counsel that has completed a legal professional course may become a member of the advocates association (similar to a bar association).

There is no similar concept in Indonesia. Professional confidentiality only applies to communication between an advocate and client and does not apply to a third party, irrespective of whether that party has common legal interests.

See above.

See above.

There is no concept similar to litigation funding in Indonesia. This kind of financial arrangement is rarely known or practiced in Indonesia.

See above. Noting the above elaboration, given that a litigation funder is not a client, communication with litigation funders may not be protected under ACP.

There is no similar concept in Indonesia.

However, as elaborated above, advocates are obligated to report suspicious transactions that may indicate a client’s involvement in money laundering (unless the information is discovered during the advocate’s representation of a client in litigation, arbitration, alternative dispute resolution, or during legal due diligence/legal audit).

Furthermore, in a corruption case, the privilege may be breached if an advocate is required to testify.

See above.

There is no regulation on this issue. However, Article 19 of the Advocates Law, which stipulates that advocates are entitled to enjoy the protection of “files and documents from seizure and inspection” may be broadly enough interpreted to mean that protection includes files, documents or products prepared in anticipation of litigation or legal proceedings.

See above.

Public accountants and associated parties (partners of an accounting firm, employees or other parties involved in the provision of services to the client) are bound by limited professional confidentiality. Their obligation to preserve the confidentiality of information obtained from clients does not apply in the event of mandatory disclosure by the Ministry of Finance for supervision purposes (Article 29 of Law No. 5 of 2011 on Public Accountants).

Court-annexed mediation is confidential unless agreed otherwise by the disputing parties (Article 5 (1) Supreme Court Regulation No. 1 of 2016 on Court-Annexed Mediation). However, the rule does not apply when the mediator reports the outcome of mediation to a presiding judge upon the conclusion of mediation.

Mediation outside the judicial system is regulated under Law No.30 of 1999 on Arbitration and Dispute Settlement Alternatives. This law provides that the mediator must maintain confidentiality (Article 6). Furthermore, national mediation bodies/institutions have their own mediation rules and procedures in place that ensure the confidentiality of the mediation they administer (including a prohibition on using documents, statements, or records obtained or produced during mediation as evidence in court. A mediator is also prohibited from acting as a witness, expert, legal consultant, or arbitrator in the same dispute).

As elaborated above, settlement negotiation during court-annexed mediation and out-of-court mediation must be kept private and confidential. Moreover, Article 7(b) of the Code of Ethics states that communication and correspondence produced by advocates during a failed negotiation process are not permitted to be presented as evidence in court.