Colombian Law recognizes the professional secrecy (“secreto profesional”), which is a different regime than ACP. 

[1] Yes. There are several rules regarding professional secrecy. The professional secrecy is recognized by Article 74 of the Colombian Constitution in the following the terms: 

“Article 74. All persons have the right to access to public documents except in cases established by law. Professional secrecy is inviolable.” (Emphasis added) 

In accordance with this article, the Colombian Constitutional Court has defined professional secrecy as “… classified and confidential information which is known due to the exercise of a specific profession or activity”. [2]

The nature and scope of the professional secrecy was defined by the Colombian Constitutional Court which, in a 1996 judgment, concluded that it entails a duty as well as a right and does not imply a simple discretion concerning information acquired in the course of practicing law, but a complete confidentiality with respect to such information, in light of the interpersonal bond that brings together the attorney and the client [3]. 

As per Article 28.9 of the Colombian Lawyer’s Disciplinary Statute, professional secrecy is recognized as a duty. Accordingly, Article 209 of the Colombian Procedural Code sets forth an exception to a lawyer’s duty to testify within a judicial procedure regarding any fact protected by professional secrecy.

Additionally, considering the wide definition of professional secrecy which was adopted by the Colombian Constitutional Court, the information subject to professional secrecy may even include any attorney-client communications or work product prepared by counsel. The regulations that govern the legal profession provide that the duty of professional secrecy extends even beyond the finalization of the service.

Considering the aforementioned, professional secrecy is unbreachable and, as a consequence, a lawyer or a client might be able to withhold attorney-client communications from disclosure in a civil proceeding.  

However, in accordance with Articles 265 to 268 of the Colombian Procedural Code, within a civil proceeding a party may request a documents production (“exhibición de documentos”) by means of which it might grant access to documents of the property of the counterparty. The counterparty might oppose such a request alleging professional secrecy or industrial secrecy. In this case, the competent court will have to decide by comparing the arguments alleged by the parties.

Notes:

[1] This question is directed primarily to civil law jurisdictions that do not recognize common law jurisdictions’ privilege doctrines.
[2] Colombian Constitutional Court, Decision C-301 of 2012.

[3] 3 Colombian Constitutional Court, Decision T-073A of 1996.

Yes. In criminal matters, this professional secrecy duty is derived from Article 125 of the Colombian Criminal Procedural Code. The duty is also complemented by Article 68 of this Code, as it states an exception regarding the duty to file a criminal complaint in cases where professional secrecy is involved. 

Additionally, regarding criminal matters, Article 34 of the Colombian Disciplinary Code establishes that a lawyer might disclose information protected by professional secrecy where there is a need of revealing this information in order to prevent the commission of a crime. The Colombian Constitutional Court has argued that the possibility of breaking the duty to respect professional confidentiality is a problem of necessity (“estado de necesidad”). Thus, in Decision C-301 of 2012, the Court affirmed that it is mandatory to assess the following: (i) the existence of a current or imminent danger, (ii) the importance of the right that will be protected by the avoidance of the crime compared to the importance of professional confidentiality and (iii) the probability that the disclosure of the information prevents the violation of the endangered right.

In relation to communications and legal work product, it can be evidenced that they are protected by Articles 222 and 235 of the Colombian Criminal Procedural Code. The first article establishes a prohibition to the authorities of making records of the attorney’s communications. The second article, on the other hand, foresees the prohibition of registering attorney-client documents. 

These rules are not foreseen in the Colombian Procedural Code which seems to be a consequence of the different nature of the civil and the criminal procedure. Therefore, there are distinctions in the application of ACP in each of the proceedings.

May government authorities require disclosure of attorney-client communications and legal work product? 

Yes. Please refer to the answer to question number I., A., 2. regarding articles 265 to 268 of Colombian Procedural Code, and to the answer to question number I., A., 3. in reference to article 34 of the Colombian Lawyer’s Disciplinary Statute. In addition, this latter article states that a lawyer might disclose information protected by professional secrecy when there is such disclosure has been authorized by the client. 

In these cases, government authorities may require the disclosure of attorney-client communications and legal work product.

Additionally, please note that a government authority may require disclosure of (i) documents related with the regular economic and business activities of a company and of (ii) documents of public nature, such as the shareholder ledger and accounting information. 

Also, within a proceeding initiated by a lawyer in order to obtain the payment of its legal representation expenses, he/she may be entitled to provide attorney-client communications as evidence of the claimed amount for this concept.

There is no test for such purposes set forth in Colombian Law.

There is no express rule that prevents an in-house counsel from asserting professional secrecy. Thus, the secrecy principle applies to in-house lawyers so long as the performance of their activities implies providing representation or legal advice and assistance to their clients/employers.

Nevertheless, some authorities have stated that professional secrecy is not applicable regarding in-house lawyers.
 

There is no express rule that prevents an in-house counsel from asserting professional secrecy. Thus, the secrecy principle applies to in-house lawyers so long as the performance of their activities implies providing representation or legal advice and assistance to their clients/employers. 

Nevertheless, some authorities have stated that professional secrecy is not applicable regarding in-house lawyers.

However, in house lawyers often come into contact with matters that may imply criminal conduct on the part of members of their organization. To the extent that an in-house lawyer finds that management is willfully engaged in criminal activities such as money laundering or actions that support terrorist, he/she would be required to denounce such actions to the Prosecutor's General Office and facilitate the investigation. Likewise, a lawyer working for a company whose securities are listed in the Colombian Stock Exchange would have to denounce an employee's activity that might imply wrongful use of so-called "privileged information" (insider trading). 

In that context, the in-house lawyer that discloses information to prevent the commission of a crime would be exempted from sanctions arising from potential violations of the professional secrecy duties, in accordance with Articles 34(f) and 22(2) of the Colombian Lawyer’s Disciplinary Statute.
 

In the Colombian jurisdiction there is no lawyer’s bar. However, in-house counsels have the same qualifications as external lawyers regarding legal representation of clients.

No

This doctrine is not recognized by Colombian law.

This doctrine is not recognized by Colombian law.

In Colombia, there is no express rule prohibiting or regulating litigation funding. Additionally, there are no professional rules in this respect. 

Colombian Courts have not addressed this issue in their rulings. 

No, but there is a similar doctrine. As explained before, Article 34 of the Colombian Lawyer’s Disciplinary Statute establishes that a lawyer might disclose information protected by professional secrecy where there is a need of revealing this information in order to prevent a crime. This exemption is based on necessity (“estado de necesidad”). Necessity helps the attorney to know if there is not a duty to respect the professional confidentiality anymore.

Crime-fraud exception is not recognized in Colombian Law. However, regarding the doctrine explained in the previous answer there are the following statutes and key court decisions:

• Colombian Lawyer’s Disciplinary Statute – Law 1123 of 2007.
• Colombian Constitutional Court, Decision C-301 of April 25, 2012.
   

No

There is not a statute on this regard. 

Yes. The accountant’s professional secret is recognized by the Accountant Statute (Law 43 of 1990). 

Yes. According to Article 76 of Law 23 of 1991, the conciliation has a confidential character. Thus, participants within a conciliation proceeding must keep confidentiality of the information provided within the context of the conciliation proceeding. 

Yes, if the settlement is reached by a conciliation proceeding, according to Article 76 of Law 23 of 1991. In any case, parties are able to execute a non-disclosure agreement or include a confidentiality clause in the settlement agreement to assert this privilege regarding the information shared in the negotiations. Thus, the privileged will be binding for the parties due to the mutual agreement as a contractual obligation. However, this clause will have some limitations according to Colombian Law.