New "In-House Counsel Privilege" in Swiss law
The Code of Civil Procedure (CPC), amended on January 1, 20251, created a "legal privilege for in-house counsels" for the benefit of companies and their legal departments in civil procedure.
This new "privilege", in reality the right to refuse to cooperate under certain conditions, aims to remove certain procedural disadvantages that Swiss companies could suffer in civil proceedings abroad, while also having an internal scope for Swiss and foreign companies that are parties to civil proceedings in Switzerland.
What to remember and implement within the company
Since 1 January 2025, companies that are parties to civil proceedings, as well as lawyers by training who provide legal services to a company in the context of employment relationships, whether or not they are holders of the bar exam, may refuse to collaborate, in particular to testify or to produce documents relating to the activity of the internal legal department in civil proceedings if (Art. 167a CCP):
- the company is registered in the commercial register;
- it has an in-house legal department headed by a person who holds a cantonal lawyer's certificate or who meets the professional conditions required to practise as a lawyer in his or her country of origin;
- The facts relate to a typical legal activity, similar to that of an external lawyer.
This right is not enforceable in administrative or criminal proceedings in Switzerland or abroad.
Unlike a lawyer, both the company and the in-house lawyer remain subject to the general obligation to cooperate in the proceedings (Art. 160 CCP); they must therefore invoke their right to refuse to cooperate within the meaning of Art. 167a CCP for acts subject to secrecy upon receipt of a summons or an order for the production of evidence, in Switzerland or abroad.
To benefit from this right to refuse to cooperate, the company must ensure that the head of the company's legal department holds the Swiss bar exam or that he meets the conditions to practice as such in his or her home state.
Corporate management and legal departments must understand the scope of the new law and be able to rely on it when an opposing party or a court orders the production of documents from the legal department, or requests the hearing of a member of the legal department, including by adequately informing foreign lawyers retained by the company in the case of pre-trial discovery proceedings so that they can assert this right to refuse to cooperate in a timely manner.
The practice of foreign courts will demonstrate whether this new provision of Swiss law will be considered as a standard providing Swiss companies with equal or similar protection to the legal privilege for in-house counsels, attorney-client privilege and other work product doctrine of common law countries and other countries protecting the confidentiality of the work of in-house lawyers.
Background to the new law
Solicitor-client privilege
Under Swiss law, only lawyers practising independently and registered in the cantonal register of lawyers enjoy the absolute protection of professional secrecy (Art. 13 LLCA2), as opposed in particular to the holder of the bar bar practising as an in-house lawyer.
This secrecy is concretized in civil matters by a general exemption, given in particular to a company, from producing documents and exchanges with its lawyer (Art. 160 (1) (b) CCP). The latter may refuse to cooperate if he or she is himself a party to the proceedings (Art. 163 (1) (b) CPC) or if he or she is heard as a third party to the proceedings, in particular as a witness (Art. 166 (1) (b) CPC).
Lawyers registered in the cantonal register must, therefore, refuse to answer questions from the court or from a party to the proceedings on pain of committing a criminal offence (Art. 321 SCC3), unless they are released from professional secrecy by their client. And here again, even if untied, the decision to testify belongs exclusively to the lawyer: neither the client nor the supervisory authority can force him to testify4.
This protection allows the client company to place absolute confidence in the confidentiality of the lawyer registered in the register whom it mandates to advise or represent it in court, regardless of the type of proceedings (civil, criminal or administrative).
Disadvantage of Swiss companies vis-à-vis foreign competitors in civil matters
In common law jurisdictions, including the United States, Canada and the United Kingdom of Great Britain, but also in Spain, Portugal, Germany (for the "Syndikusrechtsanwalt" registered in the corresponding register of the Anwaltskammer), Belgium and the Netherlands5, in-house counsel may refuse to cooperate in civil proceedings on facts relating to legal advice given to their employer ("legal privilege for in-house counsels" and "attorney-client privilege" in American law or the "legal advice privilege" in English law).6
In addition to attorney-client privilege, the United States also recognizes the "work product doctrine" which protects data prepared by an outside lawyer or the legal department of a company in anticipation of litigation7.
These tools allow companies in the countries concerned to resist a "pre-trial discovery" procedure, a legal process allowing the parties to obtain information relevant to a civil dispute by allowing each party to know the evidence and arguments of the other before initiating a trial8.
Before the revision of the CCP on 1 January 2025, Swiss law did not enshrine any special status or protection for in-house lawyers or their activities9. It is undeniable that the latter carries out an activity similar to that of an external lawyer for certain tasks, in particular in relation to internal investigations or the preparation of legal proceedings, since he provides legal advice for his employer. Exchanges between in-house lawyers and the management of a company, in particular in the context of an internal investigation related to suspicions of irregularities, are sensitive and may contain confessions or evidence essential to the outcome of a procedure.
For example, Swiss companies were at a significant disadvantage in disputes abroad, particularly in the United States, as they were denied any protection by foreign courts on the grounds of the lack of a standard of protection under Swiss law10. This legal disparity placed Swiss companies at a competitive disadvantage, in particular in proceedings in the United States, Canada, the United Kingdom of Great Britain, but also in Spain, Portugal, Germany, Belgium and the Netherlands, where lawyers and in-house counsel were exposed to an obligation to produce documents and testify in the event of legal proceedings.
This was particularly the case in the context of pre-trial discovery procedures, which can reach 90% of the total cost of an Anglo-Saxon type of legal procedure11. The interest in being able to refuse to cooperate in the presence of inside information is therefore essential.
Scope of the new Art. 167a CPC
Art. 167a CPC now enshrines the right of companies, whether based in Switzerland or abroad, and members of their legal department, to refuse to cooperate and to produce documents related to the activity of its in-house legal department in the context of civil proceedings.
This "privilege" does not extend to criminal or administrative proceedings.
However, the company and the members of its legal department remain subject to a general obligation to cooperate under Art. 160 CCP, unlike lawyers. If called upon to cooperate, the company, or its lawyer, must invoke in good time – whether in civil proceedings in Switzerland or abroad – its right to refuse to cooperate within the meaning of the new Art. 167a CCP for facts that are actually subject to secrecy12.
To benefit from this protection, three cumulative conditions must be met:
Entry in the commercial register (let. a)
The company must be registered as a legal entity in the Swiss commercial register or in an equivalent foreign register.
In Switzerland, any company registered in the Swiss commercial register will meet this requirement. The legislator wanted to limit the concept of an in-house legal department by linking it to a company with a certain organization13.
Professional qualifications of the legal officer (let. b)
The person at the head of the legal department must be a Swiss cantonal lawyer or meet the professional conditions of his or her country of origin for the practice of the legal profession.
The legislature intends to use this criterion to ensure that the legal service in question has the required level of professional competence and aims to ensure that the specific nature of its activity is known and recognised14.
Uncertainties still remain as to the precise definition of a legal department eligible for secrecy and whether compliance departments will be able to benefit from it. If such a service is integrated into the company's legal department, the protection will only be effective if, for each fact or means of evidence considered, the activity falls within the typical activity of the lawyer15.
Nature of the legal activities (c)
The activities in question must be those typically assigned to the legal profession, i.e. legal representation, legal advice, negotiation of legal transactions and drafting of legal acts. Operational or non-typical tasks (asset management, financial intermediary or company director) are not covered by the refusal to cooperate, nor are they covered by solicitor-client privilege.
Each company must therefore ensure, within its legal department, the same distinction made by the lawyers in their firm, namely a clear physical separation of documents relating to the "typical" activities of the in-house lawyer, and the "atypical" activities (not covered) in order to avoid tedious mixing and sorting when ordering the production of evidence.
The admissibility of the new "In-house counsel privilege" of Swiss civil law in proceedings abroad will depend on the assessment by foreign courts of the scope of this standard, in particular whether it corresponds to the rights offered to in-house lawyers in the jurisdiction concerned.
Our expertise
With more than 200 professionals, Charles Russell Speechlys' Litigation practice advises and represents clients in proceedings in Switzerland, the United Kingdom and most common law jurisdictions, including Bermuda, the Bahamas, Singapore and Hong Kong as well as France, Italy and the United Arab Emirates.
Our firm will be happy to answer any questions you may have in connection with matters related to the production of evidence in foreign proceedings and the implementation of the In-House Counsel privilege of the revised Code of Civil Procedure, as well as in civil procedure in general.
1 Federal Council, Dispatch on the amendment of the Swiss Code of Civil Procedure (Improvement of the practicability of the law and the application of the law), 26 February 2020, FF 2020 p. 2607 ff., p. 2657 ff.
2 Federal Law on Lawyers (LLCA; SR 935.61).
3 Code pénal (CP ; RS 311.0).
4 ATF 136 III 296, consid. 3.3.
5 Novel HUBER/Stefanie RIGAUX, The right to refuse in connection with the activities of an in-house legal service in civil proceedings (Art. 167a of the new Code of Civil Procedure), in: RSJ/SJZ 119/2023 pp. 603 ff., p. 608; Swiss Institute of Comparative Law (ISDC), www.bj.admin.ch/bj/fr/home/publiservice/publikationen/externe/2017-09-11.html (last viewed 24.02.2025).
6 Nicolas JEANDIN, Scope of in-house lawyers' secrecy (CPP, CPC, DPA), in: SJ 2024 p. 841 ss, p. 847.
7 ISDC, footnote 87 p. 17.
8 ISDC, p. 20.
9 Benedict CHAPPUIS/Jerome GURTNER, The Legal Profession, Zurich 2021, No. 722
10 Ibid., p. 847.
11 On these questions HUBER/ RIGAUX, p. 607.
12 JEANDIN, p. 857.
13 JEANDIN, p. 857.
14 FF 2020 p. 2607 ss, p. 2658.
15 HUBER/ RIGAUX, p. 607.
