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In today's media-saturated environment, legal disputes are no longer confined to the courtroom. They are simultaneously fought in the media, on platforms, in front of investors, employees, regulators, politicians and business partners. Litigation PR is therefore not a "nice to have" – it is part of effective advocacy. Yet, for this strategic integration to function, one essential precondition must be met: the confidentiality that governs the attorney-client relationship must extend to the external communication professionals who are drawn into the mandate.
Without such protection, a dangerous contradiction would arise: the greater the public pressure surrounding proceedings, the more essential professional communications management becomes – and, at the same time, the greater the risk that confidential legal strategy is exposed precisely through that interface.
It is against this backdrop that the Austrian Supreme Court (Oberster Gerichtshof, OGH) has delivered a landmark ruling, clarifying that employees of a PR agency engaged by a law firm in connection with a mandate may invoke attorney-client privilege and refuse to testify as witnesses.
Under Section 9(2), first sentence of the Austrian Lawyers' Act (RAO), an attorney is obligated to maintain secrecy regarding all matters entrusted to them and all facts that have otherwise come to the attorney's knowledge in a professional capacity, the confidentiality of which is in the interest of the client. This duty of confidentiality also extends to the "auxiliary personnel" (Hilfskräfte) engaged by the attorney, whom the attorney must obligate to maintain confidentiality (Section 9(2), fourth sentence, RAO).
This encompasses not only persons in an employment relationship with the attorney, but also third parties – such as an IT technician responsible for the setup and maintenance of the attorney's IT systems – who, on the basis of some other contractual relationship with the attorney, have (limited) access to data subject to the duty of confidentiality. The OGH had already confirmed this in its earlier decision 4 Ob 77/23m.
Furthermore, under Section 9(3) RAO, the attorney's right to confidentiality must not be circumvented by judicial or other official measures, in particular by the examination of the attorney's auxiliary personnel. This anti-circumvention principle is also recognised more broadly in case law, which holds that statutory duties of confidentiality must not be circumvented.
The question in the present case was novel in that it extended this concept beyond the traditional categories – office staff, IT service providers – to a communications agency providing litigation PR services. Specifically, the issue was whether Section 9(2) RAO also applies to employees of an external company engaged by a law firm not for classical office work but for public relations work in connection with a mandate, because they are to be regarded as "auxiliary personnel" within the meaning of the attorney's professional code. This qualification determined whether the witnesses were entitled to refuse testimony under Section 321(1)(4) of the Austrian Code of Civil Procedure (ZPO).
The court of first instance held that the witnesses were not entitled to refuse testimony and imposed coercive fines. While it acknowledged that, according to prevailing case law, the duty of confidentiality extends to an attorney's auxiliary personnel, it found that the witnesses had failed to sufficiently specify the legal tasks for which they or their company had been engaged and had therefore not conclusively demonstrated their status as auxiliary personnel.
The appellate court (Rekursgericht) reversed this decision, ruled the refusal to testify lawful, and set aside the coercive fines initially imposed on the witnesses. It found that, based on the uncontested submissions of the witnesses, they had been engaged by the law firm to provide services arising from the mandate given to that firm by the defendants, that confidential facts from the mandate relationship had been communicated to them to enable performance, and that they had been contractually obligated to maintain confidentiality. Therefore, the ground for refusal under Section 321(1)(4) ZPO was established.
In its decision 10 Ob 18/26h, the OGH dismissed the plaintiffs' further appeal (Revisionsrekurs) as inadmissible for failure to raise a legal question of fundamental importance within the meaning of Section 528(1) ZPO. In doing so, the OGH made the following key findings:
The appellate court had rightly affirmed the witnesses' right to refuse testimony, given that they had been engaged by the defendants' law firm (in the main proceedings) to support public relations work in the matter handled by the firm, and were thus integrated into the attorney's work on the mandate. The agency was in a contractual relationship with the law firm (including a duty of confidentiality) and therefore had access to protected data.
The fact that the witnesses' specific activity (public relations work) did not constitute a "genuine legal activity" does not prevent the duty of confidentiality from applying. An IT technician likewise does not perform legal work in the strict sense, yet is nevertheless covered by the duty of confidentiality. Where an attorney engages an agency for public relations work, it is at least not untenable to classify the agency's employees as auxiliary personnel within the meaning of Section 9 RAO, particularly since case law does not regard media work by an attorney as inherently impermissible under professional conduct rules.
An additional important argument is that the law does not only protect the duty of confidentiality itself but also expressly protects against its circumvention (Section 9(3) RAO). If auxiliary personnel were treated differently depending on the nature of their activity, the duty of confidentiality could easily be hollowed out.
The reference in the appeal to the German provision of Section 43e of the Federal Lawyers' Act (BRAO) and associated literature could not raise a fundamental legal question, because Section 43e BRAO is more narrowly formulated than Section 9(3) RAO.
It is noteworthy that the matter concerned civil proceedings. However, there is no reason to assume that the outcome would have been different had the witnesses been summoned to testify in criminal proceedings conducted under the Austrian Code of Criminal Procedure (StPO). In particular, Section 157(2) StPO explicitly provides for an anti-circumvention rule substantially identical to that set out in Section 9(3) RAO, stipulating that an attorney's right to refuse to testify must not be circumvented through the examination of auxiliary personnel.
From a practitioner's perspective, there can be no doubt that the support of litigation PR agencies frequently forms an integral part of advising and representing clients. It is therefore welcome that the OGH has addressed and resolved the question of whether such agencies fall within the scope of attorney confidentiality under certain specific circumstances. The decision provides legal certainty in an area of practice that had not previously been explicitly clarified by the highest court.
The ruling also underscores the practical imperative for clients and attorneys to ensure that the legal framework governing the engagement of litigation PR agencies is structured in a manner that leaves no room for doubt as to the agency's status as auxiliary personnel within the meaning of Section 9 RAO. Only where these preconditions are demonstrably met can the extension of attorney-client privilege to the communications professionals involved be regarded as assured.
Autor: Oliver M. Loksa
Oliver Michael
Loksa
Counsel
austria vienna