In a decision published this week and marked as a leading case, the Swiss Federal Tribunal (<a href="https://www.bger.ch/ext/eurospider/live/de/php/aza/http/index.php?lang=de&amp;type=show_document&amp;highlight_docid=aza:%2F%2Faza:%2F%2F22-06-2021-1B_333-2020&amp;print=no" target="_blank" rel="noopener">DFT 1B_333/2020</a>) held that communications of persons with lawyers admitted to practice in jurisdictions outside of the EU, EFTA, and the UK are not protected from seizure by the attorney-client privilege unless the person is the target of the criminal investigation.
The case arose out of a criminal investigation involving allegations of bribing foreign officials and money laundering. During the investigation prosecutors seized documents from a third party. The seized documents included privileged correspondence between the third party and its attorneys, who were admitted to practice outside the EU, EFTA, and the UK.
The Swiss Federal Tribunal confirmed that the attorney-client communications of an accused party relating to legal advice and the representation in legal proceedings remain privileged and cannot be searched and seized during a criminal procedure regardless of where the accused&#8217;s lawyer is admitted to practice.
However, the Swiss Federal Tribunal ruled that documents and communications protected by attorney-client privilege and exchanged between a third party and his/her lawyers admitted to practice outside the EU, EFTA, and the UK may be searched and seized in criminal proceedings.
The decision is in line with the Swiss Federal Tribunal&#8217;s restrictive approach regarding the scope of the attorney-client privilege and of other confidentiality interests. Companies and individuals in Switzerland who retain lawyers from outside the EU, EFTA, or the UK should be mindful that their communications may be searched and seized in the course of criminal and regulatory proceedings. In relevant matters, companies and individuals may want to consider retaining lawyers not admitted to practice in Switzerland, the EU, EFTA, or the UK through an attorney allowed to practice in those countries.

Swiss Federal Tribunal rules on scope of privilege

Lorenzo Togni und Benedict Thomann

Lorenzo Togni ergänzt Homburger seit diesem Jahr als Partner, Bénédict Thomann als Counsel. Wir heissen sie herzlich willkommen. 

Ein neuer Partner und ein neuer Counsel verstärken unsere Kanzlei

Wir heissen <a href="https://www.homburger.ch/de/team/lorenzo-togni/">Lorenzo Togni</a> in unserer Partnerschaft willkommen. <a href="https://www.homburger.ch/de/team/benedict-thomann/">Bénédict Thomann</a> gratulieren wir zur Ernennung zum Counsel.

Frische Kräfte und neue Perspektiven

Gesellschaftsrecht / M&A

Steuern

Roche

On November 4, 2021, Roche Holding AG (Roche), the world&#8217;s largest biotech company, with a market capitalisation of around CHF 320 bn, announced that it agreed with Novartis to repurchase 53.3 m Roche shares from Novartis Holding AG for an aggregate consideration of approx. CHF 19 bn. The transaction is conditional upon the approval of a capital reduction by cancellation of the repurchased shares and the approval of interim financial statements prepared for the purpose of the transaction by an extraordinary general meeting of Roche.
Homburger acted as legal counsel to Roche. The Homburger team was led by partners Heinz Schärer and David Oser and included partner Daniel Häusermann, counsel Micha Fankhauser, associates Sarah Chevalley and Jasmin Künzle (all Corporate / M&amp;A), partners Reto Heuberger and Dieter Grünblatt and associates Laetitia Fracheboud and Kevin Müller (all Tax), partner Jürg Frick, counsels Lee Saladino and Eduard De Zordi and associate Stefan Bindschedler (all Finance), partner Balz Gross, counsel Bénédict Thomann and associates Luca Angstmann and Sebastian Wyler (all Dispute Resolution).

Homburger advises Roche Holding AG on the repurchase of the Novartis stake in Roche Holding AG and the financing of the transaction 

Prozesse

Untersuchungen

Wirtschaftsstrafrecht

In a decision published this week and marked as a leading case, the Swiss Federal Tribunal (<a href="https://www.bger.ch/ext/eurospider/live/de/php/aza/http/index.php?lang=de&amp;type=show_document&amp;highlight_docid=aza:%2F%2Faza:%2F%2F22-06-2021-1B_333-2020&amp;print=no" target="_blank" rel="noopener">DFT 1B_333/2020</a>) held that communications of persons with lawyers admitted to practice in jurisdictions outside of the EU, EFTA, and the UK are not protected from seizure by the attorney-client privilege unless the person is the target of the criminal investigation.
The case arose out of a criminal investigation involving allegations of bribing foreign officials and money laundering. During the investigation prosecutors seized documents from a third party. The seized documents included privileged correspondence between the third party and its attorneys, who were admitted to practice outside the EU, EFTA, and the UK.
The Swiss Federal Tribunal confirmed that the attorney-client communications of an accused party relating to legal advice and the representation in legal proceedings remain privileged and cannot be searched and seized during a criminal procedure regardless of where the accused&#8217;s lawyer is admitted to practice.
However, the Swiss Federal Tribunal ruled that documents and communications protected by attorney-client privilege and exchanged between a third party and his/her lawyers admitted to practice outside the EU, EFTA, and the UK may be searched and seized in criminal proceedings.
The decision is in line with the Swiss Federal Tribunal&#8217;s restrictive approach regarding the scope of the attorney-client privilege and of other confidentiality interests. Companies and individuals in Switzerland who retain lawyers from outside the EU, EFTA, or the UK should be mindful that their communications may be searched and seized in the course of criminal and regulatory proceedings. In relevant matters, companies and individuals may want to consider retaining lawyers not admitted to practice in Switzerland, the EU, EFTA, or the UK through an attorney allowed to practice in those countries.

Bénédict
Thomann

Frische Kräfte und neue Perspektiven

Homburger advises Roche Holding AG on the repurchase of the Novartis stake in Roche Holding AG and the financing of the transaction

Swiss Federal Tribunal denies legal privilege protection to correspondence with non-EU/EFTA/UK lawyers

Swiss Federal Tribunal rules on scope of privilege

Join the Team

Bénédict Thomann

Karriere

Sprachen

Zulassung

Teams

BénédictThomann

Frische Kräfte und neue Perspektiven

Homburger advises Roche Holding AG on the repurchase of the Novartis stake in Roche Holding AG and the financing of the transaction

Swiss Federal Tribunal denies legal privilege protection to correspondence with non-EU/EFTA/UK lawyers

Swiss Federal Tribunal rules on scope of privilege

Join the Team

Bénédict Thomann

Karriere

Sprachen

Zulassung

Teams

Bénédict
Thomann