SWEDEN Trends and Developments Contributed by: Jenny Welander Wadström, Björn Johansson Heigis, Andreas Hallbeck and Säde Märgel, Roschier
external advisers, and its scope is shaped by Bar ethi - cal rules and procedural law. This makes the choice between external attorney assistance and non-attor - ney investigators a strategic decision, particularly in investigations that may lead to criminal complaints or regulatory inquiries where a company may be request - ed to disclose investigative materials. Attorney-client privilege in internal investigations Foundations of attorney-client privilege in Sweden Attorney-client privilege in Sweden ( Sw. advokat‑ sekretess ) is grounded in the Swedish Bar Associa - tion’s ethical rules, and in the provisions of Swedish procedural law that protect the confidentiality of cor - respondence between a client and an external attor - ney. It generally applies in the same manner in civil, criminal, regulatory and investigatory contexts. An attorney who is a member of the Swedish Bar Asso - ciation has a duty to ensure the confidentiality of any correspondence they have had with their client as well as any knowledge they have gained during the course of the engagement. Matters that are subject to the attorney’s duty of confidentiality are also subject to attorney-client privilege. Privilege is regarded as a core element of the legal system, allowing clients to communicate confidential - ly with external attorneys. Communications with other advisers, including unregulated legal service providers or consultants, or with in-house counsel, do not enjoy the same protection. Scope and limits of protection, and steps to take to ensure privilege Swedish procedural law establishes the following core elements of attorney-client privilege: • it is prohibited to take testimony from an attorney or their associates regarding matters that are sub - ject to attorney-client privilege, or to seize docu - ments from the attorney or their client that can be assumed to pertain to these matters, unless the client expressly waives the privilege; and • neither an attorney nor their client is obliged to pro - duce a document that is subject to attorney-client privilege in legal proceedings (and the attorney is not permitted to do so unless the client has waived the privilege).
However, these prohibitions on taking testimony and seizing documents, and the exemption from the duty to produce documents, do not apply where the evi - dence sought concerns a serious crime that carries a minimum penalty of two years’ imprisonment. In the context of an internal investigation, attorney- client privilege can extend to materials such as cor - respondence, notes from witness interviews, legal advice provided by the attorney and investigation reports. It may also apply to other documents provid - ed to the attorney in connection with the engagement. To ensure attorney-client privilege over sensitive parts of an internal investigation where an external attorney is engaged, it is advisable to avoid communicating on sensitive matters internally – via email, for exam - ple – without copying in an attorney. It is also advis - able to label documents “privileged and confidential” (although that is not in itself sufficient or required for privilege) and establish a procedure for securely retaining privileged documents and correspondence. Cross-border dimensions Multinational companies operating in Sweden may have to navigate divergent privilege regimes across jurisdictions. While communications with Swedish external attorneys is privileged under Swedish law, the same communications may receive different treat - ment in foreign courts or regulatory proceedings. Con - versely, advice obtained from foreign external counsel may or may not be recognised as privileged under Swedish procedural rules, depending on the status of the foreign counsel. From a Swedish perspective, correspondence with external counsel authorised as the equivalent of an attorney in a state within the EU, EEA or Switzerland is protected by attorney-client privilege, provided that the external counsel practices law in Sweden. These cross-border complexities can be particularly relevant in investigations with potential implications in multiple jurisdictions, such as alleged cross-border corruption. In such cases, companies often co-ordi - nate closely between Swedish and foreign external counsel to design an investigative structure that max - imises protection where possible while enabling effec - tive fact finding and reporting.
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