	Lex Mundi Global Attorney-Client Privilege Guide
	Brazil
	(Latin America/Caribbean) Firm Demarest Advogados Contributors Updated 09 Sep 2021
Is the ACP recognized in your jurisdiction?	Yes, the ACP is recognized in Brazil. The main legal provisions providing for the confidentiality of information and documents exchanged between a client and its lawyer are found in: the Federal Constitution: The Federal Constitution protects privilege on a more general basis, guaranteeing the confidentiality of the information and sources of information whenever required for the exercise of professional services (articles 5, XIV and 133). the Statute of the Brazilian Bar Association (Federal Law 8,906/1994): The Statute of the Brazilian Bar Association (Federal Law 8,906/1994) defines legal privilege as the inviolability of the office or workplace of the attorney, as well as his/her files and data, correspondence and communications, including telephone or alike, as long as the protected material is related to professional services rendered by the attorney (article 7, II). the Code of Ethics of the Brazilian Bar Association: The Code of Ethics of the Brazilian Bar Association states that legal privilege encompasses all facts that an attorney becomes aware of in such a capacity. Further, it sets forth that legal privilege is a matter of public policy and communications of any nature exchanged between attorney and client are presumed to be confidential, regardless of any specific request in this regard (articles 35 and 36).
If the ACP is not recognized in your jurisdiction, are there rules of professional confidentiality or other rules that would enable a lawyer or a client to withhold attorney-client communications or work product prepared by counsel from disclosure...	As stated in the previous item, ACP is recognized in Brazil.
Is a distinction made in applying the ACP or professional confidentiality rules in civil and criminal proceedings? May government authorities require disclosure of attorney-client communications and legal work product?	There is no such distinction, as ACP applies to the exercise of the legal profession in general. Government authorities can only require disclosure of attorney-client communications and legal work products in cases in which there are strong elements indicating the existence of criminal activity by the attorneys themselves. In addition, confidentiality yields under circumstances involving a material threaten to life, honor or whenever the attorney is deliberately challenged by its own client and in its on defense. Regarding the law: According to article 7, § 6 of the Statute of the Brazilian Bar Association, in cases in which there are strong elements indicating the existence of criminal activity by the attorney him or herself, ACP can be broken by a judge under a reasoned and consistent decision, which will necessarily be implemented with the presence of a member of the Bar Association¹. According to the Code of Ethics of the Brazilian Bar Association, ACP is intrinsic to the exercise of legal services and is mandatory unless keeping secrecy will result in a material threaten to life, honor or whenever the attorney is deliberately challenged by its own client and in its on defense - only to the extent necessary - he/she has to break confidentiality. Regarding the case law: The Supreme Court has already taken a critical view against measures akin to “fishing expeditions” in law firms and emphasized the necessity of legal and factual grounds to justify dawn raids in law firms². Most precedents authorize the mitigation of the ACP in light of strong elements indicating the existence of criminal activity by the attorney itself³ even if the attorney is used as a vehicle and a shield precisely by virtue of the attorney-client privilege. In this case, the competent judge shall issue a specific and detailed search and seizure warrant (pursuant to Article 7, § 6 of Law 11.767 of 2008 and articles 239 and 243, § 2 of the Criminal Procedure Code)⁴. Courts have considered that judicial mitigation of the protection afforded by the ACP is unlawful when dealing with the legitimate exercise of advocacy and there are no concrete elements to justify the opposite. In this regard, it is possible to highlight the precedent involving Adélio Bispo’s lawyer in the notorious case of the murder attempt of Brazil’s President, Mr. Jair Bolsonaro, in 2018. In that case, the Federal Court of Appeals of the First Region took the view that ACP should be preserved, since the attempt to supersede violation of ACP was based on the allegation that a criminal organization would be funding Adelio’s defense. The Court considered that such an allegation would not warrant mitigation of the ACP, since (i) there was no allegation of wrongdoing by the attorney himself, (ii) the information about who was funding the defense could be used against Mr. Bispo and the State could not use attorneys to investigate conducts of their clients⁵. __________ ¹This aspect has been respected by Brazilian Courts recently. See: STJ, AgRg no Inq 1.191/DF, Reporting Justice OG FERNANDES, Corte Especial, heard in 10/21/2020 and STJ, HC 463.568/PR, Reporting Justice SEBASTIÃO REIS JÚNIOR, Sexta Turma, heard in 02/26/2019. ² STF, RCL 43479, Reporting Justice GILMAR MENDES, heard in 03/20/2020. ³STJ, RMS 10.857/SP, Reporting Justice FELIX FISCHER, QUINTA TURMA, heard in 03/16/2000, DJ 05/02/2000; STJ, AgRg no Inq 1.191/DF, Reporting Justice OG FERNANDES, Corte Especial, heard in 10/21/2020/STF, RHC 22200/SP, Reporting Justice Ministro Arnaldo Esteves Lima, heard in 05/04/10. ⁴ STJ, RHC 21.455/RJ, Reporting Justice JORGE MUSSI, Quinta Turma, heard in 10/10/2010. ⁵TRF1, MSC 1000399-80.2019.4.01.0000, Reporting Judge NÉVITON GUEDES, heard in 02/28/2019.
In the corporate context, what test is applied to determine who within a corporation is considered the client for the purposes of the ACP? (e.g., in the U.S.: the Upjohn approach, control group test, etc.)	In Brazil, there is no specific rule to determine who within a corporation is considered the client for the purposes of the ACP. The general rule is that all communications between clients and their attorneys are deemed to be confidential. Therefore, as the law does not provide a specific answer on who is entitled of such protection on behalf of the corporation, the analysis of the ACP must be decided on a case-by-case basis.
Is in-house counsel expected to meet a higher burden than outside counsel in order to establish that privilege applies to in-house counsel’s communications?	In-house counsel is not expected to meet a higher burden than outside counsel to establish that privilege applies to its communications. This is because although the Statute of the Brazilian Bar Association ("Federal Law 8,906/1994") is not explicit on whether the rules regarding legal professional privilege also apply to in-house counsel, Brazilian Scholars take the prevailing view that this set of rules embraces both outside and in-house counsel, given that it applies to lawyers in general, without distinction.
Civil Law Jurisdictions: May in-house counsel assert privilege or professional confidentiality?	Yes, in-house counsel may assert privilege or professional confidentiality, given that, although the Statute of the Brazilian Bar Association (Federal Law 8,906/1994) is not explicit on it, Brazilian Scholars take the prevailing view that ACP embraces both outside and in-house counsel, once it applies to lawyers in general, without distinction.
Civil Law Jurisdictions: Is in-house counsel allowed to be active members of your jurisdiction’s bar?	Yes, in-house counsel are allowed to be active members of the Brazilian Bar Association as long as the membership requirements, provided for in article 8 of the Statute of the Brazilian Bar Association (Federal Law 8,906/1994), are met, notably: (i) they should enjoy civil capability; (ii) they should have a law degree from a duly accredited law school; (iii) they should have a voter registration card and a discharge of military service card, if Brazilian; (iv) they should have a certificate of the Bar exam; (v) they should not perform any incompatible activity to advocacy; (vi) they should enjoy good moral standing; and (vii) they should have taken the oath before the Brazilian Bar Association.
Is the common interest doctrine recognized in your jurisdiction?	No, the common interest doctrine is not provided for in Brazilian legislation. According to article 35 of the Code of Ethics of the Brazilian Bar Association, lawyers have a duty of keeping confidential all facts learned during the exercise of the legal profession. Thus, in principle, the disclosure of privileged information to third parties constitutes a breach of this duty, subject to disciplinary sanctions (article 34, VI, Statute of the Brazilian Bar Association (Federal Law 8,906/1994)). Nonetheless, the disclosure could in theory occur with the client’s consent ⁶. __________ ⁶The only limitation in this respect is expressed in article 7, XIX, of the Statute of the Brazilian Bar Association (Federal Law 8,906/1994) and reflected in article 38 of the Code of Ethics of the Brazilian Bar Association: the lawyers’ right to refuse to testify as a witness in proceedings in which he/she worked or in which involves facts related to clients or former clients, even when authorized or requested by them, in the name of ACP. In this sense: “Item XIX of art. 7, as mentioned above, assures the lawyer the right and duty to refuse to testify as a witness on a fact related to his client or former client, which he learned about in professional secrecy. This impediment applies only to facts that the lawyer knows by reason of his/her office. In the same sense, the Code of Ethics and Discipline (art. 38) establishes that the lawyer must keep confidential, even in court testimony, about what he knows by means of his/her legal profession, being entitled to refuse to testify as a witness in process in which he/she worked or should work, or about a fact related to a person who is or has been a client, even if authorized by the client (free translation). (LÔBO, Paulo. Comentários ao Estatuto da Advocacia e da OAB. 13th edição. São Paulo: Editora Saraiva, 2019, pp. 85-86).
How is the doctrine articulated in your jurisdiction?	As stated in the previous item, the common interest doctrine is not recognized in Brazil. According to article 35 of the Code of Ethics of the Brazilian Bar Association, lawyers have a duty to keep all facts learned during the exercise of the legal profession confidential. Thus, in principle, the disclosure of privileged information to third parties constitutes a breach of this duty, subject to disciplinary sanctions (article 34, VI, Statute of the Brazilian Bar Association (Federal Law 8,906/1994)). Nonetheless, the disclosure could in theory occur with the client’s consent⁸. __________ ⁷ See footnote nº 6.
Must a common interest agreement be in writing?	As stated in the previous item, the common interest doctrine is not recognized in Brazil. According to article 35 of the Code of Ethics of the Brazilian Bar Association, lawyers have a duty of keeping all facts learned during the exercise of the legal profession confidential. Thus, in principle, the disclosure of privileged information to third parties constitutes a breach of this duty, subject to disciplinary sanctions (article 34, VI, Statute of the Brazilian Bar Association (Federal Law 8,906/1994)). Thus, in theory, disclosure to a third party with a common interest could be possible upon authorization by the client⁸ and a written authorization would be recommended. __________ ⁸ See footnote nº 6.
Is litigation funding permitted in your jurisdiction? Are there any professional rules in this respect?	Litigation funding is not prohibited under Brazilian law, but also is not expressly permitted, once there is no specific legislation that regulates this matter - although it is a recurrent mechanism in the dispute resolution industry. As such, it is subject to the requirements of Brazilian Contract Law. As for professional rules in this respect, it is to be mentioned that the main Brazilian arbitral institutions provide guidelines on litigation funding⁹, which work as recommendations of best practices. __________ ⁹This is the case of CAM-CCBC and CAMARB: https://ccbc.org.br/cam-ccbc-centro-arbitragem-mediacao/en/administrative-resolutions/ar-18-2016-recommendations-regarding-the-existence-of-third-party-funding-in-arbitrations-administered-by-cam-ccbc/; and https://camarb.com.br/en/arbitration/administrative-resolutions/administrative-resolution-no-14-20/. Accessed on 02/09/2021.
Have the courts in your jurisdiction addressed whether communications with litigation funders may be protected by the ACP or the work-product protection	No, up to this moment we are not aware of any decisions from Brazilian Courts regarding whether communications with litigation funders may be protected by the ACP or the work-product protection. However, as litigation funding is a hot topic especially within the Brazilian arbitration community¹⁰, this scenario can eventually change and must be watched closely. __________ ¹⁰In this sense, please see recent academic productions regarding litigation funding in Brazil: TORRE, Riccardo Giuliano Figueira. Aspectos do third-party funding e o dever de revelação do árbitro. Revista de Arbitragem e Mediação, Vol. 64/2020, pp. 163-200; MANNHEIMER, Sergio Nelson, MONTEIRO, André Luís; MARTINS, Godinho da Mota. Arbitragem, third-party funding e a proteção dos documentos enviados pela parte financiada ao financiador. Revista de Arbitragem e Mediação, Vol. 67/2020, pp. 143-160 and TEMER, Sofia. Financiamento de litígios por ‘terceiros’ (ou ‘third-party’ funding): o financiador é um sujeito processual? notas sobre a participação não aparente. Revista de Processo, Vol. 309/2020, pp. 359-384.
Is the crime-fraud exception recognized in your jurisdiction?	Yes, the crime-fraud exception is recognized in Brazil.
What statutes or key court decisions articulate the crime-fraud exception in your jurisdiction?	In Brazil, the crime-fraud exception is articulated by article 7, § 6 of the Statute of the Brazilian Bar Association (Federal Law 8,906/1994), which states that whenever there are strong elements indicating the existence of criminal activity by the attorney itself, the competent authority shall decree an exception to ACP. In such cases, the majority of precedents show that ACP has been mitigated¹¹, even if the attorney is used as a vehicle and a shield precisely by virtue of the ACP¹². __________ ¹¹ STJ, RMS 10.857/SP, Reporting Justice FELIX FISCHER, QUINTA TURMA, heard in 03/16/2000, DJ 05/02/2000; STJ, AgRg no Inq 1.191/DF, Reporting Justice OG FERNANDES, Corte Especial, heard in 10/21/2020/STF, RHC 22200/SP, Reporting Justice Ministro Arnaldo Esteves Lima, heard in 05/04/10. ¹² STJ, RHC 21.455/RJ, Reporting Justice JORGE MUSSI, Quinta Turma, heard in 10/10/2010.
Is there a statute or rule that protects information obtained or prepared in anticipation of litigation from disclosure in legal proceedings? (In the U.S.: What state rule is your jurisdiction’s analog to FRCP 26(b)(3)?)	In Brazil, there is no rule that specifically protects information obtained or prepared in anticipation of litigation from disclosure in legal proceedings. However, article 7(II) of the Statute of the Brazilian Bar Association (Federal Law 8,906/1994) shall cover this protection, once it sets forth that a lawyer has the right to the inviolability of the office or workplace of the attorney, as well as his/her files and data, correspondence and communications, including telephone or alike, as long as the protected material is related to professional services rendered by the attorney. This protection must be read together with the fact that Brazil is a Civil Law country and, therefore, discovery is not generally accepted. Production of documents by one party at the request of the counterparty is exceptional and must meet the requirements of Procedural Law.
What are the elements of the protection in your jurisdiction?	As stated in the previous item, there is no rule in Brazil that specifically protects information obtained or prepared in anticipation of litigation from disclosure in legal proceedings. However, article 7(II) of the Statute of the Brazilian Bar Association (Federal Law 8,906/1994) shall cover this protection, once it sets forth that a lawyer has the right to the inviolability of the office or workplace of the attorney, as well as his/her files and data, correspondence and communications, including telephone or alike, as long as the protected material is related to professional services rendered by the attorney. This protection must be read together with the fact that Brazil is a Civil Law country and, therefore, discovery is not generally accepted. Production of documents by one party at the request of the counterparty is exceptional and must meet the requirements of Procedural Law.
Does your jurisdiction recognize an accountant-client privilege?	Yes, Brazil does recognize an accountant-client privilege. According to article 4 (c) of the Code of Ethics for Accountants, there is a general duty of privilege regarding everything the accountant knows due to its professional activity, including in the context of public services, except when provided for in law or requested by competent authorities such as the Federal Accountability Board.
Does your jurisdiction recognize a mediation privilege?	Yes, Brazil does recognize a mediation privilege, notably by the Brazilian Mediation Act (Federal Law 13,140/2015), which establishes (i) more generally, confidentiality as a general principle of mediation (article 2, VII); and (ii) more specifically, a mediation privilege that obliges the mediator, the parties, the lawyers, experts and any other people/entity involved in the mediation and encompasses declarations, opinions, promises, proposals, documents and even agreements in the context of the mediation proceedings (article 30).
Does your jurisdiction recognize a settlement negotiation privilege?	As mentioned, Brazil does recognize a settlement negotiation privilege, notably by the Brazilian Mediation Act (Federal Law 13,140/2015), which establishes a mediation privilege that obliges the mediator, the parties, the lawyers, the experts, and any other people/entity involved in the mediation and encompasses declarations, opinions, promises, proposals, documents and even agreements in the context of the mediation proceedings (article 30). Nonetheless, there are no other specific rules of privilege within settlement negotiation, that need to be specifically adjusted between the parties.

Lex Mundi Global Attorney-Client Privilege Guide

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Is the ACP recognized in your jurisdiction?

Yes, the ACP is recognized in Brazil.

The main legal provisions providing for the confidentiality of information and documents exchanged between a client and its lawyer are found in:

the Federal Constitution:

The Federal Constitution protects privilege on a more general basis, guaranteeing the confidentiality of the information and sources of information whenever required for the exercise of professional services (articles 5, XIV and 133).

the Statute of the Brazilian Bar Association (Federal Law 8,906/1994):

The Statute of the Brazilian Bar Association (Federal Law 8,906/1994) defines legal privilege as the inviolability of the office or workplace of the attorney, as well as his/her files and data, correspondence and communications, including telephone or alike, as long as the protected material is related to professional services rendered by the attorney (article 7, II).

the Code of Ethics of the Brazilian Bar Association:

The Code of Ethics of the Brazilian Bar Association states that legal privilege encompasses all facts that an attorney becomes aware of in such a capacity. Further, it sets forth that legal privilege is a matter of public policy and communications of any nature exchanged between attorney and client are presumed to be confidential, regardless of any specific request in this regard (articles 35 and 36).

If the ACP is not recognized in your jurisdiction, are there rules of professional confidentiality or other rules that would enable a lawyer or a client to withhold attorney-client communications or work product prepared by counsel from disclosure...

As stated in the previous item, ACP is recognized in Brazil.

Is a distinction made in applying the ACP or professional confidentiality rules in civil and criminal proceedings? May government authorities require disclosure of attorney-client communications and legal work product?

There is no such distinction, as ACP applies to the exercise of the legal profession in general. Government authorities can only require disclosure of attorney-client communications and legal work products in cases in which there are strong elements indicating the existence of criminal activity by the attorneys themselves. In addition, confidentiality yields under circumstances involving a material threaten to life, honor or whenever the attorney is deliberately challenged by its own client and in its on defense.

Regarding the law:

According to article 7, § 6 of the Statute of the Brazilian Bar Association, in cases in which there are strong elements indicating the existence of criminal activity by the attorney him or herself, ACP can be broken by a judge under a reasoned and consistent decision, which will necessarily be implemented with the presence of a member of the Bar Association¹.
According to the Code of Ethics of the Brazilian Bar Association, ACP is intrinsic to the exercise of legal services and is mandatory unless keeping secrecy will result in a material threaten to life, honor or whenever the attorney is deliberately challenged by its own client and in its on defense - only to the extent necessary - he/she has to break confidentiality.

Regarding the case law:

The Supreme Court has already taken a critical view against measures akin to “fishing expeditions” in law firms and emphasized the necessity of legal and factual grounds to justify dawn raids in law firms².
Most precedents authorize the mitigation of the ACP in light of strong elements indicating the existence of criminal activity by the attorney itself³ even if the attorney is used as a vehicle and a shield precisely by virtue of the attorney-client privilege. In this case, the competent judge shall issue a specific and detailed search and seizure warrant (pursuant to Article 7, § 6 of Law 11.767 of 2008 and articles 239 and 243, § 2 of the Criminal Procedure Code)⁴.
Courts have considered that judicial mitigation of the protection afforded by the ACP is unlawful when dealing with the legitimate exercise of advocacy and there are no concrete elements to justify the opposite. In this regard, it is possible to highlight the precedent involving Adélio Bispo’s lawyer in the notorious case of the murder attempt of Brazil’s President, Mr. Jair Bolsonaro, in 2018. In that case, the Federal Court of Appeals of the First Region took the view that ACP should be preserved, since the attempt to supersede violation of ACP was based on the allegation that a criminal organization would be funding Adelio’s defense. The Court considered that such an allegation would not warrant mitigation of the ACP, since (i) there was no allegation of wrongdoing by the attorney himself, (ii) the information about who was funding the defense could be used against Mr. Bispo and the State could not use attorneys to investigate conducts of their clients⁵.

__________

¹This aspect has been respected by Brazilian Courts recently. See: STJ, AgRg no Inq 1.191/DF, Reporting Justice OG FERNANDES, Corte Especial, heard in 10/21/2020 and STJ, HC 463.568/PR, Reporting Justice SEBASTIÃO REIS JÚNIOR, Sexta Turma, heard in 02/26/2019.

² STF, RCL 43479, Reporting Justice GILMAR MENDES, heard in 03/20/2020.

³STJ, RMS 10.857/SP, Reporting Justice FELIX FISCHER, QUINTA TURMA, heard in 03/16/2000, DJ 05/02/2000; STJ, AgRg no Inq 1.191/DF, Reporting Justice OG FERNANDES, Corte Especial, heard in 10/21/2020/STF, RHC 22200/SP, Reporting Justice Ministro Arnaldo Esteves Lima, heard in 05/04/10.

⁴ STJ, RHC 21.455/RJ, Reporting Justice JORGE MUSSI, Quinta Turma, heard in 10/10/2010.

⁵TRF1, MSC 1000399-80.2019.4.01.0000, Reporting Judge NÉVITON GUEDES, heard in 02/28/2019.

In the corporate context, what test is applied to determine who within a corporation is considered the client for the purposes of the ACP? (e.g., in the U.S.: the Upjohn approach, control group test, etc.)

In Brazil, there is no specific rule to determine who within a corporation is considered the client for the purposes of the ACP. The general rule is that all communications between clients and their attorneys are deemed to be confidential. Therefore, as the law does not provide a specific answer on who is entitled of such protection on behalf of the corporation, the analysis of the ACP must be decided on a case-by-case basis.

Is in-house counsel expected to meet a higher burden than outside counsel in order to establish that privilege applies to in-house counsel’s communications?

In-house counsel is not expected to meet a higher burden than outside counsel to establish that privilege applies to its communications. This is because although the Statute of the Brazilian Bar Association ("Federal Law 8,906/1994") is not explicit on whether the rules regarding legal professional privilege also apply to in-house counsel, Brazilian Scholars take the prevailing view that this set of rules embraces both outside and in-house counsel, given that it applies to lawyers in general, without distinction.

Civil Law Jurisdictions: May in-house counsel assert privilege or professional confidentiality?

Yes, in-house counsel may assert privilege or professional confidentiality, given that, although the Statute of the Brazilian Bar Association (Federal Law 8,906/1994) is not explicit on it, Brazilian Scholars take the prevailing view that ACP embraces both outside and in-house counsel, once it applies to lawyers in general, without distinction.

Civil Law Jurisdictions: Is in-house counsel allowed to be active members of your jurisdiction’s bar?

Yes, in-house counsel are allowed to be active members of the Brazilian Bar Association as long as the membership requirements, provided for in article 8 of the Statute of the Brazilian Bar Association (Federal Law 8,906/1994), are met, notably: (i) they should enjoy civil capability; (ii) they should have a law degree from a duly accredited law school; (iii) they should have a voter registration card and a discharge of military service card, if Brazilian; (iv) they should have a certificate of the Bar exam; (v) they should not perform any incompatible activity to advocacy; (vi) they should enjoy good moral standing; and (vii) they should have taken the oath before the Brazilian Bar Association.

Is the common interest doctrine recognized in your jurisdiction?

No, the common interest doctrine is not provided for in Brazilian legislation. According to article 35 of the Code of Ethics of the Brazilian Bar Association, lawyers have a duty of keeping confidential all facts learned during the exercise of the legal profession. Thus, in principle, the disclosure of privileged information to third parties constitutes a breach of this duty, subject to disciplinary sanctions (article 34, VI, Statute of the Brazilian Bar Association (Federal Law 8,906/1994)). Nonetheless, the disclosure could in theory occur with the client’s consent ⁶.

__________

⁶The only limitation in this respect is expressed in article 7, XIX, of the Statute of the Brazilian Bar Association (Federal Law 8,906/1994) and reflected in article 38 of the Code of Ethics of the Brazilian Bar Association: the lawyers’ right to refuse to testify as a witness in proceedings in which he/she worked or in which involves facts related to clients or former clients, even when authorized or requested by them, in the name of ACP. In this sense: “Item XIX of art. 7, as mentioned above, assures the lawyer the right and duty to refuse to testify as a witness on a fact related to his client or former client, which he learned about in professional secrecy. This impediment applies only to facts that the lawyer knows by reason of his/her office. In the same sense, the Code of Ethics and Discipline (art. 38) establishes that the lawyer must keep confidential, even in court testimony, about what he knows by means of his/her legal profession, being entitled to refuse to testify as a witness in process in which he/she worked or should work, or about a fact related to a person who is or has been a client, even if authorized by the client (free translation). (LÔBO, Paulo. Comentários ao Estatuto da Advocacia e da OAB. 13th edição. São Paulo: Editora Saraiva, 2019, pp. 85-86).

How is the doctrine articulated in your jurisdiction?

As stated in the previous item, the common interest doctrine is not recognized in Brazil. According to article 35 of the Code of Ethics of the Brazilian Bar Association, lawyers have a duty to keep all facts learned during the exercise of the legal profession confidential. Thus, in principle, the disclosure of privileged information to third parties constitutes a breach of this duty, subject to disciplinary sanctions (article 34, VI, Statute of the Brazilian Bar Association (Federal Law 8,906/1994)). Nonetheless, the disclosure could in theory occur with the client’s consent⁸.

__________

⁷ See footnote nº 6.

Must a common interest agreement be in writing?

As stated in the previous item, the common interest doctrine is not recognized in Brazil. According to article 35 of the Code of Ethics of the Brazilian Bar Association, lawyers have a duty of keeping all facts learned during the exercise of the legal profession confidential. Thus, in principle, the disclosure of privileged information to third parties constitutes a breach of this duty, subject to disciplinary sanctions (article 34, VI, Statute of the Brazilian Bar Association (Federal Law 8,906/1994)). Thus, in theory, disclosure to a third party with a common interest could be possible upon authorization by the client⁸ and a written authorization would be recommended.

__________

⁸ See footnote nº 6.

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

Litigation funding is not prohibited under Brazilian law, but also is not expressly permitted, once there is no specific legislation that regulates this matter - although it is a recurrent mechanism in the dispute resolution industry. As such, it is subject to the requirements of Brazilian Contract Law.

As for professional rules in this respect, it is to be mentioned that the main Brazilian arbitral institutions provide guidelines on litigation funding⁹, which work as recommendations of best practices.

__________

⁹This is the case of CAM-CCBC and CAMARB: https://ccbc.org.br/cam-ccbc-centro-arbitragem-mediacao/en/administrative-resolutions/ar-18-2016-recommendations-regarding-the-existence-of-third-party-funding-in-arbitrations-administered-by-cam-ccbc/; and https://camarb.com.br/en/arbitration/administrative-resolutions/administrative-resolution-no-14-20/. Accessed on 02/09/2021.

Have the courts in your jurisdiction addressed whether communications with litigation funders may be protected by the ACP or the work-product protection

No, up to this moment we are not aware of any decisions from Brazilian Courts regarding whether communications with litigation funders may be protected by the ACP or the work-product protection. However, as litigation funding is a hot topic especially within the Brazilian arbitration community¹⁰, this scenario can eventually change and must be watched closely.

__________

¹⁰In this sense, please see recent academic productions regarding litigation funding in Brazil: TORRE, Riccardo Giuliano Figueira. Aspectos do third-party funding e o dever de revelação do árbitro. Revista de Arbitragem e Mediação, Vol. 64/2020, pp. 163-200; MANNHEIMER, Sergio Nelson, MONTEIRO, André Luís; MARTINS, Godinho da Mota. Arbitragem, third-party funding e a proteção dos documentos enviados pela parte financiada ao financiador. Revista de Arbitragem e Mediação, Vol. 67/2020, pp. 143-160 and TEMER, Sofia. Financiamento de litígios por ‘terceiros’ (ou ‘third-party’ funding): o financiador é um sujeito processual? notas sobre a participação não aparente. Revista de Processo, Vol. 309/2020, pp. 359-384.

Is the crime-fraud exception recognized in your jurisdiction?

Yes, the crime-fraud exception is recognized in Brazil.

What statutes or key court decisions articulate the crime-fraud exception in your jurisdiction?

In Brazil, the crime-fraud exception is articulated by article 7, § 6 of the Statute of the Brazilian Bar Association (Federal Law 8,906/1994), which states that whenever there are strong elements indicating the existence of criminal activity by the attorney itself, the competent authority shall decree an exception to ACP. In such cases, the majority of precedents show that ACP has been mitigated¹¹, even if the attorney is used as a vehicle and a shield precisely by virtue of the ACP¹².

__________

¹¹ STJ, RMS 10.857/SP, Reporting Justice FELIX FISCHER, QUINTA TURMA, heard in 03/16/2000, DJ 05/02/2000; STJ, AgRg no Inq 1.191/DF, Reporting Justice OG FERNANDES, Corte Especial, heard in 10/21/2020/STF, RHC 22200/SP, Reporting Justice Ministro Arnaldo Esteves Lima, heard in 05/04/10.

¹² STJ, RHC 21.455/RJ, Reporting Justice JORGE MUSSI, Quinta Turma, heard in 10/10/2010.

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

In Brazil, there is no rule that specifically protects information obtained or prepared in anticipation of litigation from disclosure in legal proceedings. However, article 7(II) of the Statute of the Brazilian Bar Association (Federal Law 8,906/1994) shall cover this protection, once it sets forth that a lawyer has the right to the inviolability of the office or workplace of the attorney, as well as his/her files and data, correspondence and communications, including telephone or alike, as long as the protected material is related to professional services rendered by the attorney. This protection must be read together with the fact that Brazil is a Civil Law country and, therefore, discovery is not generally accepted. Production of documents by one party at the request of the counterparty is exceptional and must meet the requirements of Procedural Law.

What are the elements of the protection in your jurisdiction?

As stated in the previous item, there is no rule in Brazil that specifically protects information obtained or prepared in anticipation of litigation from disclosure in legal proceedings. However, article 7(II) of the Statute of the Brazilian Bar Association (Federal Law 8,906/1994) shall cover this protection, once it sets forth that a lawyer has the right to the inviolability of the office or workplace of the attorney, as well as his/her files and data, correspondence and communications, including telephone or alike, as long as the protected material is related to professional services rendered by the attorney. This protection must be read together with the fact that Brazil is a Civil Law country and, therefore, discovery is not generally accepted. Production of documents by one party at the request of the counterparty is exceptional and must meet the requirements of Procedural Law.

Does your jurisdiction recognize an accountant-client privilege?

Yes, Brazil does recognize an accountant-client privilege. According to article 4 (c) of the Code of Ethics for Accountants, there is a general duty of privilege regarding everything the accountant knows due to its professional activity, including in the context of public services, except when provided for in law or requested by competent authorities such as the Federal Accountability Board.

Does your jurisdiction recognize a mediation privilege?

Yes, Brazil does recognize a mediation privilege, notably by the Brazilian Mediation Act (Federal Law 13,140/2015), which establishes (i) more generally, confidentiality as a general principle of mediation (article 2, VII); and (ii) more specifically, a mediation privilege that obliges the mediator, the parties, the lawyers, experts and any other people/entity involved in the mediation and encompasses declarations, opinions, promises, proposals, documents and even agreements in the context of the mediation proceedings (article 30).

Does your jurisdiction recognize a settlement negotiation privilege?

As mentioned, Brazil does recognize a settlement negotiation privilege, notably by the Brazilian Mediation Act (Federal Law 13,140/2015), which establishes a mediation privilege that obliges the mediator, the parties, the lawyers, the experts, and any other people/entity involved in the mediation and encompasses declarations, opinions, promises, proposals, documents and even agreements in the context of the mediation proceedings (article 30). Nonetheless, there are no other specific rules of privilege within settlement negotiation, that need to be specifically adjusted between the parties.

Lex Mundi Global Attorney-Client Privilege Guide

Brazil

Lex Mundi Global Attorney-Client Privilege Guide

Brazil

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