Professional secrecy and legal privilege for in-house and interim lawyers

Short answer: In-house lawyers in Switzerland and Germany enjoy less legal privilege than outside counsel. Since 2025, Swiss companies can withhold in-house legal documents in civil proceedings if a qualified attorney heads the department (Art. 167a Civil Procedure Code). German syndikus lawyers cannot refuse testimony in criminal proceedings (section 53 StPO). Interim lawyers are generally treated like in-house lawyers.

This guide is for general counsel, heads of legal and heads of compliance in Switzerland and Germany who use interim lawyers on sensitive matters. It explains when in-house legal privilege exists, where it ends and how to set up investigations and document reviews so that protection is not lost.

What does legal privilege mean for in-house lawyers?

Legal privilege protects confidential legal communications from disclosure in proceedings. Swiss and German law have no single equivalent concept. Instead there are several building blocks: professional secrecy, rights to refuse testimony or cooperation, and prohibitions on seizure. Almost all of them attach to the profession of attorney, not to legal work as such.

For outside counsel the protection is broad. In Switzerland, registered attorneys are bound by professional secrecy without time limit and must ensure their assistants keep it (Art. 13 of the Federal Act on the Free Movement of Lawyers, BGFA). Breaches by attorneys and their assistants are a criminal offence (Art. 321 Swiss Criminal Code). In Germany, attorneys may refuse to testify (section 53(1) no. 3 of the Code of Criminal Procedure, StPO), and their documents are protected from seizure under certain conditions (section 97 StPO).

Switzerland: Art. 167a for in-house legal departments

Since 1 January 2025, a party to Swiss civil proceedings may refuse to cooperate and to hand over documents connected with the work of its in-house legal department (Art. 167a(1) Swiss Civil Procedure Code, ZPO). Three conditions must be met:

1. The company is entered in the Swiss commercial register or a comparable foreign register.
2. The legal department is headed by a person holding a cantonal bar certificate or an equivalent foreign qualification.
3. The activity in question would be considered typical legal work if performed by an attorney, such as legal advice or contract drafting, rather than pure business decisions.

Third parties working in an in-house legal department can rely on the same right under the same conditions (Art. 167a(2) ZPO). The rule applies only to civil proceedings and creates no privilege in criminal or administrative proceedings. In-house lawyers are also usually not entered in the bar register because their employer is not itself registered (Art. 8(1)(d) BGFA), and Art. 321 of the Criminal Code does not mention them expressly.

Germany: syndikus lawyers and criminal proceedings

In Germany, syndikus lawyers (in-house lawyers admitted to the bar) have no right to refuse testimony about what was entrusted to them in that capacity (section 53(1), first sentence, no. 3 StPO, subject to section 53a StPO). Protection from seizure under section 97 StPO is linked to that right and only covers items in the custody of the person entitled to refuse (section 97(2) StPO). Documents held in the legal department are therefore generally not protected like law firm files in a criminal investigation.

The position is different for people who assist an outside attorney, for example under a contract. They are treated like the attorney, who decides on exercising the right (section 53a(1) StPO), and the seizure protection applies accordingly (section 97(3) StPO). For internal investigations this is the most important lever.

EU competition proceedings: no privilege for in-house lawyers

When the European Commission investigates a competition case, communications with in-house lawyers are not protected. The Court of Justice of the EU confirmed this on 14 September 2010 (Case C-550/07 P, Akzo Nobel): an employed lawyer does not enjoy independence comparable to that of an outside lawyer because of economic dependence and close ties to the employer (para 49). This also affects Swiss companies active in the EU single market.

What applies to interim lawyers?

For legal privilege purposes, interim lawyers are generally in the same position as in-house lawyers. What counts is their function in the company, not the engagement model. The overview shows the main scenarios.

Setting up investigations and reviews so that protection holds

Protection comes from structure, not from stamping documents "privileged". These steps work well for investigations, document reviews and sensitive legal questions.

1. Assess the procedural risk: is a civil case, a criminal investigation or a competition case likely? That decides which rule applies.
2. Instruct outside counsel: where an investigation has a criminal or competition angle, an outside law firm leads and the interim review team works under its direction.
3. Check who heads the legal department (Switzerland): does the head hold a bar certificate or equivalent qualification? Without it, Art. 167a ZPO does not apply.
4. Separate legal work from business decisions: record legal advice and business decisions in separate documents and label legal analyses clearly.
5. Agree confidentiality in writing: confidentiality clauses in the assignment contract, access only to the systems needed, filing in the legal department. See our guide on confidentiality and system access for interim staff.
6. Plan the end of the assignment: return documents, close access and document the handover.

Roles and capacity

Sensitive matters usually need an experienced lawyer as lead and, where volumes are high, a review team. Alpinum Solutions provides review lawyers, review leads and interim legal counsel through staff leasing and freelancing, from junior to senior level. Direction and responsibility for results stay with the law firm or the company. A typical setup is described in the scenario document review for a law firm in an internal investigation.

Limits and risks

• No general in-house privilege: neither Switzerland nor Germany protects legal departments the way they protect law firms. Plan on the basis that internal documents could be requested in a criminal case.
• Open interpretation: no court has yet decided whether leased interim lawyers fall under Art. 167a(2) ZPO.
• No substitute for legal advice: whether a right to refuse exists in specific proceedings is for the responsible attorney to assess.

Frequently asked questions about in-house legal privilege

Do in-house lawyers in Switzerland have attorney-client privilege?

Not under the Lawyers Act. Professional secrecy under Art. 13 BGFA applies to registered attorneys, and in-house lawyers are usually not registered (Art. 8(1)(d) BGFA). Since 1 January 2025, however, the company can withhold documents of its legal department in civil proceedings if the conditions of Art. 167a of the Civil Procedure Code are met.

Can syndikus lawyers in Germany refuse to testify in criminal proceedings?

No, not about what was entrusted to them as syndikus lawyers. Section 53(1), first sentence, no. 3 StPO expressly excludes them, subject to section 53a StPO. As a result, the seizure protection under section 97 StPO generally does not cover documents held in the legal department.

Does Art. 167a ZPO cover interim lawyers?

The wording covers third parties working in an in-house legal department (Art. 167a(2) ZPO). Whether a leased professional on a staff leasing assignment falls within it has not yet been decided by the courts. To be on the safe side, integrate interim lawyers clearly into the legal department and document their legal work.

How do you protect an internal investigation that uses an interim team?

Protection is strongest when an outside law firm leads the investigation and the interim team works under its direction. In Germany, assisting persons are then treated like the attorney (section 53a StPO); in Switzerland, professional secrecy also covers assistants (Art. 321 Criminal Code). Add confidentiality agreements and clear filing rules.

Does EU law protect communications with in-house lawyers?

Not in European Commission competition proceedings. On 14 September 2010 the Court of Justice ruled in Akzo Nobel (C-550/07 P) that only communications with independent lawyers who are not employees are protected. Companies doing business in the EU should therefore route sensitive competition analyses through outside counsel.

Next step

Alpinum Solutions is the leading provider of interim legal & compliance in the DACH region. We support legal departments and law firms with experienced lawyers for investigations, reviews and proceedings; your company or firm directs the work.

• Litigation, investigations and eDiscovery: interim lawyers and review teams
• Confidentiality and system access for temporary legal and compliance staff
• Syndikus lawyers on interim assignments: admission and pension exemption
• Models & legal framework: all guides on engagement models
• Discuss your needs

Last updated: 10 November 2026.