Assume a US pharmaceutical group asks its Swiss legal department to investigate suspicious distributor payments. Counsel interview employees, review email and send a report to the parent. The same record later matters to a Swiss damages claim and a prosecutor. The general counsel recognizes an Upjohn investigation and expects a protected legal file. Swiss law asks different questions about the employing entity, the work performed and the proceeding seeking the material. The report can retain the same wording while its protection changes.
1. What Does Swiss In-House Privilege Protect in Civil Cases?
Upjohn supplies a familiar starting point for US corporate counsel. The US Supreme Court protected employee communications made to company counsel to obtain legal advice, rejecting the restriction to a senior management “control group.” The decision concerned a pharmaceutical company's investigation involving foreign subsidiaries. Confidentiality and the legal purpose mattered; the underlying facts did not become privileged merely because employees communicated them to lawyers. The Court declined to announce rules for every future investigation.1Upjohn Co. v. United States, 449 U.S. 383 (1981), 394–396 (employee communications, confidentiality and underlying facts). A Swiss legal department's involvement therefore cannot settle the question by borrowing the case's name.
Art. 167a ZPO permits a party to refuse cooperation and production of documents connected with its in-house legal service when three conditions coincide. The party must be a legal entity entered in the Swiss commercial register or a comparable foreign register. A person holding a cantonal license to practice law, or satisfying the professional requirements for practicing law in that person's home state, must lead the service. The activity must be one that would count as professional legal work if performed by an outside lawyer.2Schweizerische Zivilprozessordnung (Zivilprozessordnung, ZPO) vom 19. Dezember 2008 (SR 272), Art. 167a(1) to (4) (conditional refusal right, appeal and costs). Registration of the company, qualification of the head and character of the work answer different questions. One cannot establish the others.
The qualification concerns the service's leadership. Art. 167a ZPO does not require every employee doing the work to hold a cantonal license to practice law, nor does it require the head to join a Swiss lawyers' register. That distinction matters to a multinational group with a US-qualified legal head and staff in several countries. It does not resolve which entity's service performed a particular task, whether a shared group function is the subsidiary's own legal service, or whether a document concerns legal advice rather than a commercial decision. Group ownership alone does not answer the statute's wording.
The revised ZPO introduced this refusal right on 1 January 2025.3Schweizerische Zivilprozessordnung (Verbesserung der Praxistauglichkeit und der Rechtsdurchsetzung), Änderung vom 17. März 2023, AS 2023 491, commencement clause (1 January 2025). Art. 407f ZPO also makes Art. 167a ZPO applicable to proceedings already pending when the amendment entered into force. The relevant contrast on 8 October 2026 is consequently between a conditional right that has taken effect and the broader secrecy a US reader may expect. The provision does not make an employee's disclosure a professional-secrecy offense or instruct a foreign court to treat the material as privileged.
The right also reaches a third person's cooperation and documents connected with that person's activity in an in-house legal service, subject to the same conditions. Art. 167a(2) ZPO does not describe every person who later receives a copy. A consultant's involvement, an employee's departure or circulation to another group company can therefore introduce questions that the fact of a qualifying head does not dispose of. A claim about an entire investigation folder still needs a connection between the material and the protected activity.
Art. 167a(3) ZPO permits an appeal against decisions on the refusal. Art. 167a(4) ZPO places the costs of disputes over the right on the party or third person invoking it. Even a civil claim to protection thus carries its own procedural and financial consequences. A company may have a supportable claim without having either a cost-free dispute about it or protection for every record its investigators assembled.
The distinction is especially visible when an investigation begins before anyone knows which dispute will follow. A legal department may have been asked to advise on liability, while finance wanted an accounting explanation and management wanted reasons for a dismissal. The same source material can serve those purposes without making the purposes legally identical. The eventual Swiss civil request can expose a disagreement about what the legal service was doing long before the parties dispute the contents of its conclusions.
A Swiss investigation report can support a conditional civil refusal right while presenting different questions about criminal evidence, employee information and disclosure to a foreign authority.
2. Why Does Protection Change With the Proceeding?
Swiss professional secrecy rests on a different legal relationship. Art. 13 BGFA imposes secrecy without a time limit and against everyone for matters clients entrust to lawyers through their profession. The lawyer must also secure compliance by assistants. Release from secrecy does not compel disclosure.4Bundesgesetz über die Freizügigkeit der Anwältinnen und Anwälte (Anwaltsgesetz, BGFA) vom 23. Juni 2000 (SR 935.61), Art. 8 and Art. 13 (independence and professional secrecy). These obligations cannot be reproduced by giving an employee the title “legal counsel” or describing a department as independent in an internal policy.
The distinction between a cantonal license to practice law and professional independence is consequential. Art. 8 BGFA connects registration to the ability to practice independently. BGE 130 II 87 does not impose an absolute registration ban on every lawyer employed by a business. It recognizes that an employed lawyer can undertake qualifying, separately organized independent practice outside the employment relationship.5BGE 130 II 87, E. 5.2–6.4 (employment and separately organized independent practice). That possibility does not transform advice to the employer into the separate outside practice. Equally, satisfying the head-qualification condition of Art. 167a ZPO does not establish the independent relationship on which the external lawyer's protections depend.
Art. 321 StGB criminalizes unauthorized disclosure of professional secrets by the listed professionals and their assistants. Consent from the person entitled to the secret, or written permission from the competent authority on the professional's application, excludes punishment under the provision; the statute also reserves specified reporting and cooperation rules.6Schweizerisches Strafgesetzbuch (StGB) vom 21. Dezember 1937 (SR 311.0), Art. 321 Ziff. 1 to 3 (professional secrets, consent and reserved duties). In-house work does not acquire this criminal-law secrecy simply because its author has legal qualifications. Conversely, outside counsel's secrecy is not a promise that disclosure can never occur or that a client's consent itself compels the lawyer to disclose.
The criminal evidence rules are separate again. Art. 264 StPO protects specified defense and lawyer communications against seizure, regardless of their location or creation date. For communications between another person and that person's lawyer, Art. 264(1)(d) StPO requires the lawyer to be entitled under the BGFA to represent clients before Swiss courts and not to be accused in the same factual connection. The provision also retains a restitution and confiscation exception. An overseas lawyer's professional status alone does not establish the required Swiss entitlement.7Schweizerische Strafprozessordnung (Strafprozessordnung, StPO) vom 5. Oktober 2007 (SR 312.0), Art. 264 and Art. 265(2) (seizure restrictions and separate surrender exemptions).
There is no corresponding in-house legal-service refusal right in the StPO. That does not mean every company must voluntarily hand over everything: Art. 265(2) StPO contains separate exemptions from surrender, including for accused persons and defined corporate self-incrimination. Those exemptions and protection against seizure are different matters. Nor can “administrative proceedings” be treated as a single unprotected category. Art. 13(1bis) VwVG, Art. 16 VwVG and Art. 17 VwVG retain lawyer-communication and qualified secrecy protections. Art. 46(3) and Art. 50 VStrR separately govern lawyer material in federal administrative criminal investigations.8Bundesgesetz über das Verwaltungsverfahren (Verwaltungsverfahrensgesetz, VwVG) vom 20. Dezember 1968 (SR 172.021), Art. 13(1bis), Art. 16 and Art. 17; Bundesgesetz über das Verwaltungsstrafrecht (VStrR) vom 22. März 1974 (SR 313.0), Art. 46(3) and Art. 50. None simply imports Art. 167a ZPO.
The EU comparison is similarly bounded. In Akzo Nobel, the Court of Justice excluded in-house communications from legal professional privilege in Commission competition investigations, despite the lawyer's bar membership and professional duties. It distinguished the rules applicable to national proceedings.9Case C-550/07 P Akzo Nobel Chemicals Ltd and Akcros Chemicals Ltd v European Commission [2010] ECR I-8301, ECLI:EU:C:2010:512, paras 40–49 and 102–106. The holding does not describe every European court's treatment of in-house advice. It does show why the Swiss company's civil refusal right and the US group's privilege expectations cannot determine what a Commission investigator may examine.
One report can therefore be confidential in an ordinary business sense while lacking the particular protection claimed against an authority. Conversely, the absence of the in-house civil rule in that proceeding does not abolish other statutory safeguards. That distinction changes what management can infer from a privilege assessment: a conclusion about professional secrecy, surrender or seizure cannot stand in for a conclusion about the others. A parent receiving a single answer that its Swiss file “is privileged” has not yet identified which legal question that answer addresses.
3. Does Outside Counsel Protect the Investigation File?
Engaging an outside lawyer changes the relationship to the investigation. It does not settle the character of everything the lawyer does. In its judgment 1B_85/2016, the Federal Supreme Court distinguished legal advice about compliance from a bank's own statutory compliance, controlling and documentation work delegated to law firms. The latter did not become protected in its entirety because lawyers performed it. The court accepted differentiation between legal advice and the investigation's other elements, including redaction of passages containing protected advice.10Urteil BGer 1B_85/2016 vom 20. September 2016, E. 6.1–6.6 and E. 7.2–7.8 (mixed investigation mandates and protected legal advice).
It concerned banking duties and a particular investigation, not a statutory rule that all internal investigations, all fact gathering or all employee interviews fall outside professional secrecy. The court expressly left open whether employee interviews without a defense mandate could, in an appropriate case, belong to protected legal advice. Legal assessment of suspicious conduct and the investigation of what happened are often connected. The question is whether that connection supports protection for the particular material, rather than whether facts are present anywhere in the lawyer's work.
The distinction bears directly on a pharmaceutical group's hypothetical payment investigation. A report may assess criminal liability, identify weaknesses in controls and describe remediation for management. The first purpose may involve legal advice; the others may also serve operational oversight. The bank judgment does not establish which portions of that different report would be protected. It does undermine the assumption that appointing a law firm resolves the issue for the whole assignment. The actual work and the specific claim to protection remain material even when the engagement letter uses legal terminology throughout.
Copying counsel into a document exchange supplies still less certainty. In judgment 1B_264/2018, the Federal Supreme Court stated that merely sending a copy of correspondence to a lawyer does not suffice to protect the writing. It also recognized protection for genuine professional advice and distinguished advice about a transaction from formal implementation.11Urteil BGer 1B_264/2018 vom 28. September 2018, E. 2.1 (copying a lawyer does not by itself establish protection). The judgment does not support withholding every business document reproduced in a legal folder, or treating every operational communication involving a lawyer as unprotected. The relevant relationship and activity cannot be inferred from the distribution list alone.
The same tension affects interview records. An employee's account may support both legal assessment and a management decision about employment. A note may contain questions reflecting counsel's analysis, factual statements and operational recommendations. The existence of those different elements makes an undifferentiated claim harder to sustain; it does not yield a reliable rule that everything called “notes” is protected or everything called “facts” is available. An interview conducted by a lawyer is also not necessarily an interview conducted for the employee's own defense.
The US comparison does not remove that uncertainty. Upjohn treated confidential employee communications and counsel's work product as distinct questions, and preserved discovery of underlying facts. Its ruling on notes reflecting counsel's mental processes cannot simply be transplanted into the Swiss seizure rules. A US parent may want one report to support legal advice, board decisions and a response to an authority. Those intended uses can pull the investigation in different directions. The choice between an internal report, an outside legal assessment and material intended for another recipient changes the facts requiring evaluation; no document label supplies a common protection across all three.
The identity of the client can also become difficult to leave implicit in a group matter. The parent's wish to understand group liability and the subsidiary's need for advice about its own conduct need not produce the same assignment. Shared employment, shared counsel and shared information are facts about the relationship, rather than conclusions about protection. A report commissioned for one entity may be useful to another, yet its usefulness does not establish which entity can invoke which right when the material is sought.
4. Can the Group Send Swiss Investigation Material Abroad?
Privilege and permission to move evidence across a border address different conduct. Art. 271 StGB concerns unauthorized acts on Swiss territory for a foreign state that belong to a public authority or official, together with the provision's other specified forms of involvement. In BGE 148 IV 66, the Federal Supreme Court upheld the relevance of assistance channels to confidential identifying third-party bank information supplied to US authorities. Storing duplicates in a third state did not resolve the Swiss-origin disclosure in that case.12BGE 148 IV 66, Urteil BGer 6B_216/2020 vom 1. November 2021, E. 1.4.1–1.4.3 (Swiss-origin third-party bank information supplied to the US authorities). It does not follow that every voluntary exchange with US group counsel is a prohibited foreign official act.
Nor does an absence of privilege establish that a proposed disclosure is lawful. A request for material, collection of testimony and submission of information can present different questions under Art. 271 StGB. The character and purpose of the act matter, not merely whether a foreign official personally performs it. The commercial pressure to cooperate with an overseas authority does not itself confer Swiss authorization. The distinct problem of confidential Swiss pricing information in US-facing disclosures illustrates why the requested information and the legal channel both matter.
The Regierungs- und Verwaltungsorganisationsverordnung (RVOV) assigns permission decisions under Art. 31 of the ordinance to the departments and Federal Chancellery within their fields; matters of political or other fundamental significance go to the Federal Council. Civil evidence requests are therefore not authority for treating every overseas regulator's demand as a matter the same office can approve. A 2016 EJPD decision also found that the particular civil-party expert evidence before it required no permission.13Regierungs- und Verwaltungsorganisationsverordnung (RVOV) vom 25. November 1998 (SR 172.010.1), Art. 31 (field-specific competence and Federal Council referral). The availability of an authorization route does not establish that authorization is needed, obtainable or sufficient to remove separate confidentiality restrictions in a different case.
The Hague Evidence Convention provides a civil and commercial assistance channel. Switzerland's declaration under Art. 23 of the Hague Evidence Convention refuses pre-trial document-discovery requests lacking a direct and necessary connection to the proceeding, demanding an inventory of documents held, reaching beyond the documents specified, or endangering protected interests. It is a qualified declaration, not a blanket exclusion. Art. 11 of the Hague Evidence Convention separately preserves invoked refusal rights or prohibitions under the requested state's law and those identified or confirmed under the requesting state's law.14Übereinkommen vom 18. März 1970 über die Beweisaufnahme im Ausland in Zivil- oder Handelssachen (Hague Evidence Convention; SR 0.274.132), Art. 11 and Art. 23 Hague Evidence Convention; Swiss declaration under Art. 23 of the Hague Evidence Convention, no. 6(a) to (d). A Swiss civil refusal right may therefore be relevant to an assistance request without governing a direct US discovery order. The analysis of Swiss professional secrecy and international e-discovery addresses that broader collision.
Collection and circulation within the group raise additional limits. Art. 328b OR restricts employer processing of employee data to fitness for employment or necessity for performing the employment contract, alongside the personality protection of Art. 328 OR.15Bundesgesetz betreffend die Ergänzung des Schweizerischen Zivilgesetzbuches (Fünfter Teil: Obligationenrecht, OR) vom 30. März 1911 (SR 220), Art. 328 and Art. 328b (employee personality and data). Suspected misconduct does not by itself establish that an employee's entire mailbox or private communications meet that restriction. Routing the information through the legal department cannot replace the employment-law inquiry.
Art. 6 DSG adds lawfulness, proportionality, purpose and retention requirements. Art. 19 and Art. 20 DSG govern information and its qualified exceptions; Art. 25 and Art. 26 DSG address access and restrictions. Art. 16 and Art. 17 DSG govern foreign disclosure, including a necessity-based exception for specified legal claims before a court or competent foreign authority.16Bundesgesetz über den Datenschutz (Datenschutzgesetz, DSG) vom 25. September 2020 (SR 235.1), Art. 6, Art. 16–17, Art. 19–20, Art. 25–26 and Art. 30–31. Neither that exception nor a justification for processing makes every transfer permissible under Art. 271 StGB. Equally, confidentiality does not automatically defeat an employee's data rights. The applicable procedural law also matters under Art. 2(3) DSG. The report's civil protection cannot answer all of these questions about its creation, recipients and later use.
5. Strategic Considerations for US General Counsel
A US general counsel may inherit an investigation already in progress. The Swiss legal head satisfies the qualification condition, outside counsel have reviewed a report, and management calls the exercise privileged. Each fact may matter. None establishes the same result for a Swiss civil opponent, a prosecutor, a Commission competition team and an overseas authority. The recipient's powers and the particular activity supporting the claim to protection remain consequential after the report has been completed.
The unresolved questions concern the group's own decisions. Which entity's legal service performed the work, and for whose legal advice? Did the assignment combine legal assessment with a statutory or operational investigation the company had to perform itself? Does the report proposed for an authority contain employees' information or entrusted third-party material that the company cannot freely disclose? What has already circulated, and how does that circulation fit the protection being claimed in the proceeding that has actually arisen?
These questions also affect the value management expects from the investigation. A detailed report may be useful for correcting a control failure while containing material whose evidentiary treatment differs by purpose and forum. A narrowly legal assessment may leave commercial decision makers wanting a factual account for another use. Neither choice guarantees protection. The tension is between the uses the company expects from its findings and the distinct legal relationships on which confidentiality, refusal and lawful disclosure depend.
Art. 167a ZPO changes the Swiss civil position without collapsing those distinctions. It leaves the US group with a real but conditional refusal right, a separate body of rules for independent lawyers, and further questions when evidence crosses proceedings or borders. Whether a particular investigation can satisfy the demands of management, litigation and an authority at once depends on more than the word “privileged” on its first page.