ACP does not find direct application in Austria. It is implicitly recognized as a result of the absence of rules of discovery and the general confidentiality obligations incumbent on attorneys as it pertains to information obtained in the course of their professional duties. It must be noted that Austria does not recognize a confidentiality upon which a client can rely by virtue of the attorney-client relationship. That being said, as a consequence of the lack of a doctrine of discovery, clients cannot ordinarily be compelled to disclose documents shared with their legal representatives.

The general rule on confidentiality as it pertains to the attorney-client relationship is contained in §9(2) of the Attorney’s Code [“Rechtsanwaltsordnung”]. This provision extends confidentiality to all information with which an attorney is entrusted in the performance of their professional duties as well as to all facts of which an attorney has become aware in their professional capacity.

Specific to civil proceedings, §321(4) of the Code of Civil Procedure [“Zivilprozessordnung”] recognizes that attorneys, if called on to be witnesses, may refuse to give testimony on matters with which the attorney has been entrusted by a client. 
 

The general rule applicable to both civil and criminal proceedings is that an attorney must refuse to testify when asked to disclose a client’s confidential information. In the case of criminal proceedings, the justified refusal to testify on confidential information obtained by an attorney in the course of their professional activities is provided for in §157(1)(2) of the Criminal Procedure Act [“Strafprozeßordnung”]

An exception to this rule exists in the event that an attorney becomes aware of facts which give rise to a well-founded suspicion that a client is involved in money laundering or the funding of terrorism. In such an event, the attorney is obliged to report any information received to the Austrian Federal Office of Criminal Investigation as the public interest exceeds the importance of protecting legal privilege. This exception does not apply where the information was obtained by the attorney in the course of or during the preparation of criminal court proceedings concerning the offense of money laundering or the funding of terrorism and which was obtained in order to secure the mutual trust between the attorney and the client. 

Furthermore, in the context of investigations by the competition authority, the Austrian Competition Authority will not necessarily recognize professional privilege and may access communications or documents that would ordinarily be subject to privilege in the context of investigations under Article 101(1) TFEU. 
 

As a consequence of the Austrian approach to attorney-client confidentiality, an attorney is required to keep confidential all information with which the attorney is entrusted or which has become known to the attorney in the performance of their professional capacity. Therefore, Austria does not require a test for the identification of the client for the purpose of establishing the confidential nature of communications or documents. 

No privilege applies to the communications of in-house counsels. As they are not registered with the bar, they are not subject to the Austrian Code of Professional Conduct of Attorneys or the Attorneys’ Code (RAO). In-house counsels will usually have an employment agreement and can therein be obliged (towards their employer) to treat client information confidentially. An outside counsel will most probably also work on a contractual basis. On them, however, labor law does not apply, so everything (even loyalty obligations) have to be imposed by contract.

No, in-house counsel will merely be subject to a duty of loyalty to their employer. As a consequence, the in-house counsel would be required to protect the business secrets of the employer pursuant to Austrian labor law, but it does not entail any privilege protections. It includes the obligation not to disclose relevant information concerning the enterprise towards third persons. Under Art 15 DSG, Austrian Data Protection Act, data, accessible during and by virtue of one’s employment, must be treated as confidential as far as there is no legal reason for the transmission of such data. Communications between in-house counsel on the one hand and officers, directors or employees of the company on the other are subject to this general duty of confidentiality if this is in the employer's interest.

These confidentiality obligations, however, are not applicable if in-house counsel is called to act as witnesses in criminal, administrative or civil proceedings. An in-house counsel must, therefore, make truthful statements in court and has no right to refuse to testify. Neither under the Code of Civil Procedure nor under the Code of Criminal Procedure. The only exception to this is if the in-house counsel would thereby expose him-/herself to the risk of criminal prosecution.
 

No, in-house counsel will merely be subject to a duty of loyalty to their employer. As a consequence, the in-house counsel would be required to protect the business secrets of the employer pursuant to Austrian labor law, but it does not entail any privilege protections. It includes the obligation not to disclose relevant information concerning the enterprise towards third persons. Under Art 15 DSG, Austrian Data Protection Act, data, accessible during and by virtue of one’s employment, must be treated as confidential as far as there is no legal reason for the transmission of such data. Communications between in-house counsel on the one hand and officers, directors or employees of the company on the other are subject to this general duty of confidentiality if this is in the employer's interest.

These confidentiality obligations, however, are not applicable if in-house counsel are called to act as witnesses in criminal, administrative or civil proceedings. An in-house counsel must, therefore, make truthful statements in court and has no right to refuse to testify. Neither under the Code of Civil Procedure nor under the Code of Criminal Procedure. The only exception to this is if the in-house counsel would thereby expose him-/herself to the risk of criminal prosecution.

The common interest doctrine does not apply and has no direct parallel in Austria.

The doctrine forms part of the general legal rule on legal privilege in Austria contained in §9(2) of the Attorney’s Code [“Rechtsanwaltsordnung”]. That statutory provision imposes an obligation on the attorney to keep confidential all facts (interpreted broadly and includes documents) uncovered or of which the attorney has become aware in their professional capacity to the extent that it is in the best interest of the client. Information with which the attorney is entrusted must be kept confidential unless the attorney has been released from this obligation by the individual who entrusted them with that information. Facts learned by the attorney in their professional capacity may, however, be shared by the attorney to third parties as long as the attorney believes it is in the interest of the client. Therefore, attorneys are permitted to divulge confidential information to third parties without waiving the confidential nature of the information in its entirety. 

In light of the fact that no such agreements are necessary under Austrian law, the form of an exchange of information is immaterial.

The third-party funding of litigation is permissible in Austria. Professional rules are not significantly impacted by the source of funding. The same restrictions concerning the nature of a fee arrangement apply. Austria does not permit attorney to agree to a fee arrangement whereby they might receive a portion of any compensation awarded as a result of the outcome of a procedure. All attorney fees must be based on the Austrian Lawyers’ Fees Act.

Legal privilege in Austria ensures confidentiality is attached to all information and communications (interpreted broadly) exchanged between the attorney and the client. Where these communications involve a third-party funder, the attorney remains obligated to keep those communications confidential. In Austria, professional confidentiality may serve to benefit both the client as well as third parties. 

Since the concept of privilege is not expressly recognized in Austria, there is no corresponding crime-fraud exception. That being said, an attorney’s confidentiality obligation is affected by the provisions of the Austrian Criminal Code in certain, specified circumstances. Where it is so affected, attorneys are required to assess, on the basis of a weighing of interests, whether any given circumstance might rise to the severity requiring a deviation from their confidentiality obligation.

§286 of the Austrian Criminal Code imposes upon all persons the obligation to prevent the commission of a crime or to obstruct an ongoing crime, principally by informing the authorities or the potential victim. If a person fails to abide by this obligation and a crime results (or is attempted) and that crime would be punishable by a term of at least one-year imprisonment, the person who failed in the obligation to prevent the crime can be punished by a term of no more than two years imprisonment. This obligation also applies to attorneys. 

§286(2)(3) of the Austrian Criminal Code provides a separate rule for those subject to a statutorily recognized confidentiality obligation. Such individuals must, upon identifying circumstances giving rise to the reasonable belief a crime will be or is presently being committed, weigh the interest of maintaining their confidentiality (the interests of a potential client) against the interest of violating that confidentiality (the interests of the victim or society at large). A large body of case law has been developed in dealing with this issue. As a rule, life and physical integrity will always take precedence over damage to property or property rights.

Yes, although not expressed as a separate doctrine or aspect of privilege, attorney confidentiality in Austria is sufficiently expansive to encompass all matters learned in the course of the attorney’s professional activities. As such, information obtained or prepared in anticipation of litigation falls within the general rule. Furthermore, the exception to an attorney’s confidentiality pertaining to money laundering – which, if identified, must be disclosed – does not apply where such facts are learned during or in anticipation of criminal proceedings concerning a charge of money laundering pertaining to those facts.  

Concerning civil proceedings, §321(4) of the Code of Civil Procedure [“Zivilprozessordnung”] recognizes that attorneys, if called on to be witnesses, may refuse to give testimony on matters with which the attorney has been entrusted by a client.

Concerning criminal proceedings, §157(1)(2) of the Criminal Procedure Act [“Strafprozeßordnung”] allows attorneys to refuse to testify in criminal matters on such facts as were gleaned by the attorney in their professional capacity. It is further also prohibited for the state to attempt to gain access to documents (physical or digital), other material or the questioning of any assistants for the purpose of indirectly circumventing the confidentiality relied upon by the attorney. 
 

They are identical to the general doctrine of legal privilege as contained in §9 Attorney’s Code [“Rechtsanwaltsordnung”]. Where an attorney has been entrusted with information, the attorney will only be permitted to disclose that information if the individual who entrusted the attorney releases them from the obligation to keep the entrusted information confidential. Even if an attorney is released from this obligation, the attorney remains entitled to keep the information confidential if the attorney believes confidentiality is in the best interest of the client. Where an attorney simply becomes aware of information in their professional capacity but is not specifically entrusted with it, the attorney may disclose the information, unless it is in the best interest of the attorney’s client to keep it confidential. In which case, the attorney may rely on legal confidentiality to prevent any attempt at being compelled to disclose the information. 

Austria recognizes the following professions engaged in accountancy-related activities: certified tax advisors [“Steuerberater”], auditors [“Wirtschaftsprüfer”] and bookkeepers [“Buchhalter”]. Tax advisors and auditors are obliged to professional secrecy pursuant to §80 of the Act on Professions in the Field of Public Accounting [“Wirtschaftstreuhandberufsgesetz”]. Bookkeepers are obliged to professional secrecy in accordance with §39 of the Accountant’s Code [“Bilanzbuchhaltergesetz”].

Consequently, all three professions would be permitted to rely on their professional confidentiality to refuse to give testimony on such facts as learned in the course of their professional duties in civil and criminal proceedings.
 

Yes, but it is expressed as an obligation of confidentiality and not a doctrine of privilege. Pursuant to §3 of the Guidelines for the Activities of Attorneys in the Context of Mediation (“RL-Mediation”), attorneys as well as those individuals assisting in the mediation are subject to confidentiality as it pertains to the content of that mediation. No documents obtained in the context of the mediation may be disclosed to third parties or the authorities. Note that attorneys are not prohibited from disclosing to authorities the existence of mediation between specific parties as well as its starting and end dates.  

Austria does not recognize a specific doctrine for the automatic attachment of confidentiality to settlement negotiations. The parties involved in such negotiations may conclude a confidentiality agreement prior to starting any discussion but there is no passive confidentiality attached thereto. As a corollary to legal confidentiality, an attorney will be in a position to rely on confidentiality as it pertains to the settlement negotiations as the facts of the settlement discussions arose in the context of the attorney’s professional capacity, which the attorney is obliged to keep confidential (to the extent that such confidentiality is in the best interest of the client). This obligation does not, however, act to impose any duty of confidentiality on the other party or its counsel (subject to its own professional obligations) in relation to the settlement negotiations.