No In-house Privilege in Criminal
Proceedings: FSC Rejects Analogy with
Art. 167a CPC (7B_544/2026, 13 October
2026)

In a recent decision 7B_544/2026 dated 13 October 2026 and intended for publication, the Federal Supreme Court ("FSC") held that Art. 167a of the Swiss Civil Procedure Code ("CPC"), which has applied since 1st
January 2025 and allows a party to refuse to produce documents relating to the activity of its in-house legal department in civil proceedings, does not apply by analogy in criminal or administrative criminal proceedings. The ruling settles a question of considerable importance for companies facing investigations in Switzerland.

Background: a suspected late MROS report

The Federal Department of Finance ("FDF") is conducting administrative criminal proceedings against the responsible persons of Bank A for a suspected late report to MROS under Art. 37 of the Anti-Money Laundering Act ("AMLA"). Bank A produced the documents requested by the FDF and asked that part of them be sealed. The Complaint Chamber of the Federal Criminal Court ("FCC") granted the FDF's unsealing request (BE.2025.18). Before the FSC, Bank A sought the removal of ten documents, invoking, among other things, legal professional privilege for documents prepared by its in-house legal department.

The key issue: is Art. 167a CPC applicable by analogy?

Art. 50(2) of the Federal Act on Administrative Criminal Law ("ACLA") requires searches to safeguard secrets entrusted to lawyers, among other professionals. According to the FSC, whether in-house lawyers enjoy such protection under the ACLA coincides with the question of whether the Criminal Procedure Code ("CrimPC") grants it. Bank A argued that the absence of any in-house privilege in criminal law constituted an actual gap that should be filled by applying Art. 167a CPC by analogy. As noted in our earlier commentary (see links below), this was, to our knowledge, the first time that a criminal authority had been asked to rule on this question.

The FSC's reasoning

The FSC upheld the FCC's decision and rejected Bank A's argument on the following grounds:

• Professional secrecy under Art. 171 CrimPC and Art. 321 of the Swiss Criminal Code ("CrimC") covers lawyers authorised to represent parties before Swiss courts. Under the prevailing doctrine, in-house lawyers are not bearers of professional secrecy, as the privilege is tailored to communications between a client and an independent lawyer.
• The legislator has already declined to extend privilege to in-house counsel in criminal matters. The 2009 preliminary draft of an In-house Lawyers Act, which would have introduced a right to refuse testimony in a new Art. 171(1bis) CrimPC, was abandoned after predominantly negative feedback.
• When implementing parliamentary initiative 15.409 through the CPC revision, the Federal Council expressly limited the new privilege to civil proceedings and refrained from amending other procedural acts, despite suggestions to that effect during the consultation.

Given that the legislator did not overlook the issue but deliberately decided against it (qualified silence), there is no genuine gap and therefore no room for judicial gap-filling or for an analogous application of Art. 167a CPC. The FSC observed that even the authors cited by Bank A do not assert a gap but merely regret the legislator's choice.

Practical implications

• Companies cannot rely on Art. 167a CPC to shield in-house legal work product from criminal or administrative criminal authorities.
• Where privilege is critical, notably in internal investigations, external counsel registered with a Swiss bar should be instructed, to ensure that the typical activity of lawyers is privileged.

The decision confirms that in-house privilege in Switzerland remains confined to civil proceedings. Any extension to criminal or administrative criminal proceedings would require legislative action, which is currently not on the radar. Until then, companies should structure internal investigations and legal advice with this limitation in mind. The same applies to document management: advice and work product from external counsel should be clearly marked as such and kept separate from in-house legal and compliance files. Clear segregation allows privileged material to be identified swiftly and a targeted sealing request to be substantiated if documents are requested or seized.