Professional Secrecy of Lawyers in Europe 9781107348271, 9781107031630

Citation preview

more information - www.cambridge.org/9781107031630

Professional Secrecy of Lawyers in Europe This book examines the lawyer’s duty of professional secrecy (also known as the attorney–client privilege) in the twenty-seven Member States of the European Union, the three Member States of the European Economic Area, and Switzerland. Those working on transactions or litigations which involve several countries can use this book to find out to what extent any information shared with or any advice received from a lawyer is protected in each of these countries. The preparation of this book has been co-ordinated by Dirk Van Gerven. dirk van gerven is a partner in the Brussels office of NautaDutilh (a leading Benelux law firm) and a member of the Brussels and New York Bars. He has extensive experience in all areas of corporate and financial law. He served as President of the Dutch-speaking section of the Brussels Bar from 2010 to 2012 and has published widely in the fields of corporate and financial law and professional ethics. He has also been a member of the supervisory board of Belgium’s Financial Services and Markets Authority (previously the Banking, Finance and Insurance Commission) since 2003, presiding over it since 2011.

Professional Secrecy of Lawyers in Europe Compiled by T H E BA R O F B RU S S E L S

cambridge university press Cambridge, New York, Melbourne, Madrid, Cape Town, Singapore, S˜ao Paulo, Delhi, Mexico City Cambridge University Press The Edinburgh Building, Cambridge CB2 8RU, UK Published in the United States of America by Cambridge University Press, New York www.cambridge.org Information on this title: www.cambridge.org/9781107031630  c

Cambridge University Press 2013

This publication is in copyright. Subject to statutory exception and to the provisions of relevant collective licensing agreements, no reproduction of any part may take place without the written permission of Cambridge University Press. First published 2013 Printed and bound in the United Kingdom by the MPG Books Group A catalogue record for this publication is available from the British Library Library of Congress Cataloguing in Publication data Professional secrecy of lawyers in Europe : the European Union, the European Economic Area and Switzerland / edited by the Bar of Brussels. pages cm Includes index. ISBN 978-1-107-03163-0 (hardback) 1. Confidential communications – Lawyers – Europe. I. Barreau de Bruxelles, editor of compilation. KJC3770.P76 2013 2012050472 342.408 58 – dc23 ISBN 978-1-107-03163-0 Hardback

Cambridge University Press has no responsibility for the persistence or accuracy of URLs for external or third-party internet websites referred to in this publication, and does not guarantee that any content on such websites is, or will remain, accurate or appropriate.

Contents

Contributors ix Preface xii jean-pierre buyle, dirk van gerven Presidents of the Brussels Bar (2010–12)

1 Professional secrecy in Europe

1

dirk van gerven Past President of the Brussels Bar (Dutch-speaking section)

2 The CCBE rules on professional secrecy

24

georges-albert dal Past President of the CCBE

3 Austria

29

michael kutschera Member of the Council of the Vienna Bar Partner, Binder Gr¨osswang Rechtsanw¨alte GmbH

4 Belgium

51

dirk van gerven Past President of the Brussels Bar (Dutch-speaking section)

5 Bulgaria

73

kina chuturkova, raina dimitrova Partners, Boyanov & Co.

mihail vishanin Associate, Boyanov & Co.

6 Cyprus

88

alexandros tsadiras A.C. Tsadiras & Associates European University Cyprus

7 Czech Republic

105

´ petr cˇ ap Chairman of the Disciplinary Commission Czech Bar Association

v

Contents

8 Denmark

123

lars bo langsted Professor of Law, Aalborg University

9 Estonia

136

katrin kose Eesti Advokatuur

10 Finland

149

petri taivalkoski Partner, Roschier Attorneys Ltd

juho vuori Associate, Roschier Attorneys Ltd

11 France

172

sabine du granrut Former member of the Paris Order Council Former member of the National Bar Council

12 Germany

183

christian dahns, johannes keller Bundesrechtsanwaltskammer

13 Greece

200

ilias tompaidis, konstantinos voulgarakis AKTIUS (Apalagaki-Kostis-Tompaidis) Law Firm Members of the Bar of Thessaloniki

14 Hungary

222

´ ati ´ j a´ n o s b an President of the Hungarian Bar Association

15 Iceland

239

´ olafur arinbj o¨ r n s i g u r ð sson, sindri gu ð j o´ n s s o n Logos

16 Ireland

259

liam kennedy, sarah conroy A&L Goodbody

17 Italy antonella brambilla, alberto carpani Chiomenti Studio Legale, Milan

vi

270

Contents

18 Latvia

290

egils radzins Member of the Latvian Council of Sworn Advocates The Law Office of Sworn Advocates

19 Liechtenstein

310

mario frick President of the Liechtenstein Chamber of Lawyers

20 Lithuania

320

akvil e´ bosait e´ Senior Associate at the Law Firm Raidla, Lejins & Norcous

karina kuizinait e´ Associate at the Law Firm Raidla, Lejins & Norcous

21 Luxembourg

332

marc thewes Avocat a` la cour

22 Malta

344

max ganado, christine borg, thomas cutts-watson Ganado & Associates, Advocates

23 The Netherlands

366

fokke fernhout Associate Professor of Law, Maastricht University

24 Norway

392

john christian elden Advokatfirmaet Elden DA

25 Poland

412

wojciech marchwicki Member of the Professional Ethics Committee at the National Bar Council

marek niedu z˙ a k Member of the Professional Ethics Committee at the National Bar Council, assistant lecturer at the Department of Theory and Philosophy of Law at Kozminski School of Law

26 Portugal

441

ana cristina delgado Legal Adviser of the Legal Department Conselho Geral da Ordem dos Advogados Portugueses

27 Romania

460

gabriela cacerea, anca mihailescu Nestor Nestor Diculescu Kingston Petersen

vii

Contents

28 Slovakia

476

jozef olej Vice-President of the Slovak Bar Association ˇ arik University in Koˇsice Docent at Pavol Jozef Saf´

29 Slovenia

494

nata sˇ a pipan nahtigal, tja sˇ a l a h o v n i k ˇ Odvetniki Selih & partnerji, o.p., d.o.o.

30 Spain

524

´ nielson s anchez stewart Vice-President of the Disciplinary Board of the Consejo General de la Abogac´ıa Espa˜nola

31 Sweden

545

henrik fieber Partner, Roschier

¨ minna sj ostrand Associate, Roschier

32 Switzerland

563

claudio bazzani, roman richers Homburger AG

33 United Kingdom ronnie fox Solicitor of the Senior Courts Principal, Fox

shira auerbach J.D. Member of the New York Bar Solicitor of the Senior Courts

shirley blair A&L Goodbody Associate

kirsteen macdonald Burness Paull & Williamsons LLP Associate

Index

viii

606

584

Contributors

Austria

Czech Republic

michael kutschera Member of the Council of the Vienna Bar Binder Gr¨osswang Rechtsanw¨alte GmbH

´ petr cˇ ap Chairman of the Disciplinary Commission Czech Bar Association

Denmark Belgium georges-albert dal Past President of the CCBE dirk van gerven Past President of the Brussels Bar NautaDutilh

lars bo langsted Professor of Law Aalborg University

Estonia katrin kose Eesti Advokatuur

Bulgaria

Finland

kina chuturkova raina dimitrova Partners Boyanov & Co. mihail vishanin Associate Boyanov & Co.

petri taivalkoski Partner Roschier Attorneys Ltd

Cyprus alexandros tsadiras A.C. Tsadiras & Associates European University Cyprus

juho vuori Associate Roschier Attorneys Ltd

France sabine du granrut Former member of the Paris Order Council Former member of the National Bar Council

ix

List of contributors

Germany

Liechtenstein

christian dahns johannes keller Bundesrechtsanwaltskammer

mario frick President of the Liechtenstein Chamber of Lawyers

Greece

Lithuania

ilias tompaidis konstantinos voulgarakis AKTIUS (Apalagaki-Kostis-Tompaidis) Law Firm Members of the Bar of Thessaloniki

akvil e´ bosait e´ Senior Associate Raidla, Lejins & Norcous karina kuizinait e´ Associate Raidla, Lejins & Norcous

Hungary ´ ´ ati ´ j anos b an President of the Hungarian Bar Association

Luxembourg

Iceland

Malta

´ ¨ olafur arinbj orn sigur ð sson ´ sindri gu ð j onsson Logos

max ganado christine borg thomas cutts-watson Ganado & Associates, Advocates

Ireland liam kennedy sarah conroy A&L Goodbody

Italy antonella brambilla alberto carpani Chiomenti Studio Legale, Milan

Latvia egils radzins Member of the Latvian Council of Sworn Advocates The Law Office of Sworn Advocates

x

marc thewes Avocat a` la cour

The Netherlands fokke fernhout Associate Professor of Law Maastricht University

Norway john christian elden Advokatfirmaet Elden DA

Poland wojciech marchwicki Member of the Professional Ethics Committee at the National Bar Council

List of contributors

˙ marek niedu zak Member of the Professional Ethics Committee at the National Bar Council, assistant lecturer at the Department of Theory and Philosophy of Law at Kozminski School of Law

Portugal ana cristina delgado Legal Adviser of the Legal Department Conselho Geral da Ordem dos Advogados Portugueses

Romania gabriela cacerea anca mihailescu Nestor Nestor Diculescu Kingston Petersen

Slovakia jozef olej Vice-President of the Slovak Bar Association ˇ arik University Docent at Pavol Jozef Saf´ in Koˇsice

Slovenia nata sˇ a pipan nahtigal tja sˇ a lahovnik ˇ Odvetniki Selih & partnerji, o.p., d.o.o.

Spain ´ nielson s anchez stewart Vice-President of the Disciplinary Board of the Consejo General de la Abogac´ıa Espa˜nola

Sweden henrik fieber Roschier Partner ¨ minna sj ostrand Roschier Associate

Switzerland claudio bazzani roman richers Homburger AG

United Kingdom ronnie fox Solicitor of the Senior Courts Principal, Fox shira auerbach J.D. Member of the New York Bar Solicitor of the Senior Courts shirley blair A&L Goodbody Associate kirsteen macdonald Burness Paull & Williamsons LLP Associate

xi

Preface

Every lawyer is bound by a duty of professional secrecy. However, professional secrecy is not only a duty but also a right, to ensure that everyone receives the best legal advice and, consequently, the best defence, be it before or outside a court of law. In order to ensure the best advice or defence, however, the client must be able to speak freely to his or her lawyer, which will only be possible if the lawyer can, under no circumstances, disclose the information received from the client to the authorities or to other parties to the proceedings. If the lawyer can be forced to do so, the information could be used against the client. This fear often makes people reluctant to seek legal advice, and we all know that the worst defence is one mounted without the advice and assistance of a lawyer. The duty of professional secrecy ensures the confidentiality of discussions between a lawyer and his or her client so that no third party can gain access to the information exchanged. Lawyers are not entitled to disclose information provided by their clients and should never be forced to do so. The information exchanged is privileged. In general, the authorities and the courts should not be able to access information protected by the attorney–client privilege and should refuse to take privileged information into account if it is disclosed in violation of the professional secrecy rules. This is essential to ensure that everyone enjoys the same rights, is bound by the same obligations and is able to defend himself or herself adequately. This book examines how professional secrecy is applied in the various countries of the European Union, the European Economic Area (Iceland, Liechtenstein and Norway) and Switzerland. In most (civil law) European countries, the term professional secrecy is used. In common law countries, however, this concept is known as the attorney–client privilege or legal professional privilege. In general, these terms refer to the same concept. The first chapter of this book discusses the concept of professional secrecy in Europe and the main differences throughout Europe. It also examines relevant case law of the European Court of Human Rights and the Court of Justice of the European Union. Lawyers and law associations are obliged to work together to make the world a better place by ensuring that everyone can exercise his or her rights, including the right to assistance in understanding and defining rights and obligations. xii

Preface

Legal assistance will only be effective, however, if the client can speak freely to his or her lawyer. This means that the lawyer cannot disclose (or be obliged to disclose) information provided by the client. Since people are travelling more than ever before and engaging in international relations, they should be able to obtain legal advice (and benefit from professional secrecy) anywhere in the world. Hence a proper understanding of how professional secrecy works in other countries is necessary. It is hoped that this book will help to establish a common definition of professional secrecy which can be accepted by all countries and international institutions. Such a definition is indeed necessary in an increasingly globalised world where people cross borders with increasing frequency and can be virtually present in several countries simultaneously, through electronic means. Adapting the concept of professional secrecy to meet the realities of this new world while safeguarding the rights of citizens is one of the major challenges facing the legal profession. 19 January 2013 jean-pierre buyle and dirk van gerven Presidents of the Brussels Bar (2010–12)

xiii

1 Professional secrecy in Europe dirk van gerven Past President of the Brussels Bar (Dutch-speaking section)

1 Concepts 1 2 Scope 3 A Definition and relevance 3 B Legal basis 4 C Ethical and contractual basis 11 D Information protected by professional secrecy 11 E Advisers subject to professional secrecy 12 F Limitations and derogations 13 G Waiver by the client 15 H Search of a lawyer’s office 16 I Phone tapping 17 J Confidentiality of correspondence between lawyers 3 Application under relevant Community law 18 A Anti-Money Laundering Directive 18 B Competition law 21 C Transparency register for lobbyists 21 4 Conclusion 22

1

17

Concepts 1. A person seeking legal advice should be assured, when discussing his or her rights or obligations with a lawyer, that the latter will not disclose to third parties the information provided, and that this information will never be used against him or her. Only if this confidentiality is respected will people feel free to consult lawyers, to provide the information required for the lawyer to prepare the client’s defence or ascertain the client’s legal position, and to seek advice and legal assistance. Regardless of the type of information disclosed, the client must be certain that it will not be used against him or her in a court of law, by the authorities or any other party. It is generally considered to be a condition of the good functioning of the legal system, and thus in the general interest. Professional secrecy consequently protects both the information held by the lawyer and the correspondence and advice of the lawyer addressed to the client. 1

Professional secrecy of lawyers in Europe

This confidentiality is more commonly referred to as professional secrecy or the attorney–client privilege, and is defined as the lawyer’s obligation to maintain the confidentiality of information disclosed by a client in the context of the attorney–client relationship and the right of the client to consider any advice to him confidential. The lawyer is prohibited from disclosing the information, and the client is entitled to request that the information provided be kept confidential. The lawyer must in general refuse to disclose the information when requested to do so by a court, a public authority or any other third party. It also applies to the correspondence and advice of the lawyer to the client; this information is also protected by professional secrecy and benefits from the attorney–client privilege. Professional secrecy is the term generally used in Continental legal (i.e. civil law) systems to refer to the common law concept of legal professional privilege or the attorney–client privilege, i.e. the lawyer’s duty and right to refuse to disclose, and the client’s right to prevent any third party’s having access to the advice in relation to the client’s defence. In any case, regardless of the term used, the underlying goal is the same, namely to protect information exchanged between the client and his or her lawyer with respect to the client’s legal position in relation to a specific matter in order to permit an unrestricted exchange of information. 2. Privileged information cannot be used against the client. In order to qualify as such, however, the information must have been provided to the lawyer for the purpose of seeking legal advice. If privileged information is nonetheless disclosed in violation of the applicable rules, it may not be used in court or otherwise against the client. However, if the information is disclosed pursuant to a derogation provided for by law, it can be used in court. 3. Professional secrecy is not unique to the legal profession. Other professionals, such as doctors and priests, benefit from a similar privilege. The duty of medical secrecy, which covers information about a patient’s health, appears to date back to the Hippocratic Oath, which requires physicians and other health care professionals to swear, ‘All that may come to my knowledge in the exercise of my profession or in daily commerce with men, which ought not to be spread abroad, I will keep secret and will never reveal’.1 Further, pursuant to the Code of Canon Law (1983), a confessor must keep secret any confessions made by a penitent. In other words, ‘The sacramental seal is inviolable; therefore it is absolutely forbidden for a confessor to betray in any way a penitent in words or in any manner and for any reason’ (Art. 983, §1). This obligation, known as the priest–penitent privilege or 1 Owsei Temkin and C. Lilian Temkin (eds.), Ancient Medicine: Selected Papers of Ludwig Edelstein, Baltimore: The Johns Hopkins University Press, 1987, 6.

2

Professional secrecy in Europe

confessional privilege, is thought to date back to the councils (or synods) of Carthage. 4. It is necessary to distinguish the confidential nature of correspondence exchanged between lawyers, which is recognised in a number of jurisdictions, from professional secrecy. The first is an obligation imposed by local law or a local ethics code, for the purpose of facilitating communication between lawyers. It is not related to, or based on, professional secrecy and concerns solely relations amongst lawyers. Of course, the information exchanged by lawyers may also be privileged and thus covered by professional secrecy.

2

Scope

A

Definition and relevance 5. There is no general definition of professional secrecy or the attorney–client privilege in Community law. The concept thus differs from one Member State to another. However, it is generally accepted that professional secrecy is necessary in order to ensure that anyone can freely obtain advice and assistance in legal proceedings. The client must be secure in the knowledge that his or her lawyer will not disclose, and cannot be forced to disclose, information provided by the client for the purpose of allowing the lawyer to assist him or her, and that any advice to the client cannot be used against him or her. If no such guarantee can be provided, the client will, of course, be reluctant to seek legal advice and to speak to a lawyer. The latter will not be in a position to advise his or her client and ensure their defence. The Council of Bars and Law Societies of Europe’s Code of Conduct for European Lawyers defines the attorney–client privilege as follows: It is of the essence of a lawyer’s function that the lawyer should be told by his or her client things which the client would not tell to others, and that the lawyer should be the recipient of other information on a basis of confidence. Without the certainty of confidentiality there cannot be trust. Confidentiality is therefore a primary and fundamental right and duty of the lawyer. The lawyer’s obligation of confidentiality serves the interest of the administration of justice as well as the interest of the client. It is therefore entitled to special protection by the State. (Art. 2(3)(1))

6. It follows from the foregoing that the attorney–client privilege extends to all communications and advice between a lawyer and his or her client in preparation for the client’s defence in legal proceedings, i.e. proceedings intended to define the client’s legal rights and/or obligations or legal position. The privilege is not limited to the proceedings themselves but also includes the preparatory stage (see no 12 below); it applies not only to criminal and civil proceedings 3

Professional secrecy of lawyers in Europe

but to any type of procedure, including disciplinary or administrative, for the purpose of defining the legal rights and/or obligations of a natural or legal person, which could affect such a person’s legal position. The attorney–client privilege is not limited in time.2 7. The lawyer is obliged to maintain the confidentiality of all information that falls under the attorney–client privilege. Any disclosure of privileged information without the client’s consent will constitute a breach of this duty. In all EU Member States, such a breach constitutes a violation of the ethics code of the legal profession. In addition, in most EU Member States it constitutes also a breach of contract (see no 13 below).3 Both the lawyer and the client can rely on the attorney–client privilege when requested by the court, an authority or another party to disclose privileged information. The court cannot take into account privileged information which is unlawfully disclosed. Indeed, a decision based on such information will be deemed invalid or at least could be challenged in a court which will decide whether it affects the rights of defence.

B

Legal basis 8. As mentioned above, professional secrecy is essential in order to allow clients to seek legal advice and assistance. In providing legal assistance, lawyers should act in the sole interest of their clients. Therefore they need to be independent of any other power or party. The purpose of professional secrecy is to ensure that lawyers do not disclose privileged information to which they are privy. It is furthermore intended to protect any advice given to define and safeguard the legal interests of the client, so that it cannot be used against them. There is no clear legal basis for professional secrecy or the attorney–client privilege. It has been argued, however, that it is based on the nature of the legal profession and the right to legal assistance. From this perspective, it can be considered part of the legal foundation on which European democracies rest. Others argue that professional secrecy is inherent in the right to a fair trial; indeed, people can only adequately defend themselves if they have access to specialised assistance. One problem with the first theory, namely that professional secrecy derives from the nature of the legal profession itself, is that, in general, fundamental rights and freedoms tend to be laid down in treaties or constitutions, the fundamental acts of European democratic states. Professional secrecy is not entitled to different treatment, as it is no more important than other fundamental rights. Furthermore, if there is no legal basis for professional secrecy, it falls outside the legal order and consequently no limitations are acceptable. Thus it would 2 Art. 2(3)(3) CCBE Code of Conduct for European Lawyers. 3 Art. 2(3)(2) CCBE Code of Conduct for European Lawyers.

4

Professional secrecy in Europe

be an absolute right which, in today’s society, is difficult to accept. The issue with the second theory, that professional secrecy falls under the concept of due process, namely the right to a fair trial, is that it appears to limit the attorney– client privilege to contentious situations in which it is necessary to guarantee the right to a fair trial (see below). In order to arrive at a common legal basis it is necessary to find a legal principle or text which is accepted throughout Europe. The European Convention on Human Rights (ECHR) would appear to be the obvious choice in this regard, as it has been ratified by all Member States of the European Union and the European Economic Area and expressly guarantees the right to a fair trial. Furthermore, pursuant to Article 6(2) of the Treaty on European Union, the fundamental rights enshrined in the ECHR are considered general principles of EU law. Both the European Court of Human Rights and the Court of Justice of the European Union have recognised professional secrecy with respect to information exchanged between a client and his or her lawyer.4 Further, the contracting parties to the ECHR recognised professional secrecy in a recommendation (no R(2000)21) of 25 October 2000,5 adopted by the Committee of Ministers. Finally, professional secrecy is also recognised in several Community directives, including Directive 2005/60/EC of 26 October 2005 on the prevention of the use of the financial system for the purpose of money laundering and terrorist financing (see below) and Directive 2000/31/EC of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the internal market. 9. Professional secrecy, or the attorney–client privilege, is an essential aspect of due process, in particular the right to a fair trial.6 Indeed, a fair trial cannot be guaranteed if each party is not able to obtain all information necessary to defend his or her interests. In today’s society, this includes specialised legal assistance. In order for this right to be effective, the client must be able to 4 See e.g. ECtHR, 16 October 2007, Wieser and Bicos Beteiligungen v. Austria, Rep. 2007IV; 23 January 2007, Kepeneklioglu v. Turkey, Rep. 2007-IV; 20 June 2000, Foxley v. UK, www.echr.coe.int/hudoc; 25 March 1992, Campbell v. United Kingdom, series A, no 233; CJEU, case 550/7 (Akzo) of 14 September 2010, ECR 2010, I-08301. 5 The following countries have ratified the ECHR: Albania, Andorra, Armenia, Austria, Azerbaijan, Belgium, Bosnia and Herzegovina, Bulgaria, Croatia, Cyprus, the Czech Republic, Denmark, Estonia, Finland, France, Georgia, Germany, Greece, Hungary, Iceland, Ireland, Italy, Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, Republic of Moldova, Monaco, Montenegro, the Netherlands, Norway, Poland, Portugal, Romania, Russian Federation, San Marino, Serbia, Slovakia, Slovenia, Spain, Sweden, Switzerland, Macedonia, Turkey, Ukraine and the United Kingdom. 6 CJEU, 18 May 1982, case 155/79, C-305/05, AM&S Limited v. Commission of the European Communities, Rep. 1982, 1575; CJEU, 26 June 2007, case C-305/05, Ordre des barreaux francophones et germanophones and Others v. Council of Ministers, Rep. 2007-I, 05305.

5

Professional secrecy of lawyers in Europe

disclose to his or her lawyer all information necessary to obtain correct legal advice. The right to a fair trial is enshrined in Article 6 ECHR. This right should be respected every time the rights and obligations of a person are determined or any criminal charge is filed against a person. According to the literature, a determination of rights and obligations implies a ‘contestation’ or dispute,7 namely a disagreement between two or more persons who have a certain relationship with the rights and obligations at issue. A dispute will be considered to ‘determine’ rights and obligations if the decision taken could affect the rights and obligations of one of the parties.8 The dispute should not relate only to the mere existence of a right but also to its scope and manner of exercise.9 The right to a fair trial implies a right of access to the courts which is both practical and effective,10 in both criminal and civil proceedings. It also implies a level playing field, i.e. each party must be afforded a reasonable opportunity to present his or her case under conditions that do not place him or her at a substantial disadvantage compared to his or her opponent.11 A party is therefore entitled to legal assistance to prepare his or her arguments to the court, when necessary.12 Based on the decisions of the European Court of Human Rights, a party to civil or criminal proceedings should be entitled to the assistance of a lawyer, if such assistance is required to give that party ‘a reasonable opportunity to have knowledge of and comment on the observations made or evidence adduced by the other party and to present his case under conditions that did not place him at a substantial disadvantage vis-`a-vis his opponent’.13 The Court assumes therefore that the right to be assisted by a lawyer is limited to certain cases where an opinion on the law is required, especially when a legal opinion is required to prepare a defence or legal arguments. In that case, the party should be given an opportunity to be assisted by a lawyer. Effective representation

7 Based on the French text of Article 6, which refers to ‘contestations sur ses droits et obligations de caract`ere civil’. 8 ECtHR, 23 June 1981, Le Compte, Van Leuven and De Meyere v. Belgium, series A, no 58; 23 January 2003, Kienast v. Austria. In the latter case, the Court held that the dispute must be of a serious and genuine nature. See also P. van Dijk, F. van Hoof, A. van Rijn and L. Zwaak (eds.), Theory and Practice of the European Convention on Human Rights, Antwerp and Oxford: Intersentia, 2006, 519–20. 9 ECtHR, 23 March 2010, Cudak v. Lithuania, Rep. 2010. 10 ECtHR, 9 October 1979, Airey v. Ireland, series A, no 32. 11 ECtHR, 27 October 1993, Dombo Beheer v. The Netherlands, series A, no 274; 18 February 2009, Andrejeva v. Latvia, Rep. 2009. 12 Implicitly approved by the ECtHR, 27 November 2008, Salduz v. Turkey, Rep. 2008. 13 ECtHR, 20 May 2010, Larin v. Russia; 3 March 2000, Krˇcm´arˇ et al. v. The Czech Republic.

6

Professional secrecy in Europe

of a client’s interests requires that the client be able to speak freely to his or her lawyer, which necessarily implies that the information exchanged will be kept secret and cannot be used against the client.14 In general, violation of professional secrecy could have repercussions for the proper administration of justice and consequently, as the European Court of Human Rights has stated, on the rights guaranteed by Article 6 ECHR.15 In criminal cases, the defendant is always entitled to be assisted by a lawyer. This follows from Article 6(3) ECHR, which provides that each person is entitled ‘to defend himself through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require’. In civil cases, every person is entitled to the assistance of a lawyer when such assistance is required to guarantee a fair trial, which will be the case when information about the consequences of a dispute involving that person’s rights and obligations is required in order to allow that person better to defend him- or herself. In order for legal assistance to be effective, it must be possible to speak freely to one’s legal adviser.16 If this is not possible, the lawyer cannot defend the client appropriately, and the right to a fair trial is vitiated. Consequently, the attorney–client privilege is a necessary requirement for effective legal assistance and embedded in the right to a fair trial, in both civil and criminal proceedings.17 10. The attorney–client privilege is also applicable during the pre-trial stage.18 In fact, it can be argued that the right to a fair trial (or due process) is the basis of the attorney–client privilege even outside the context of legal proceedings, i.e. when a lawyer advises a client on the latter’s legal position even though no litigation is pending. Indeed, the existence of litigation or the threat of litigation is not a prerequisite for the attorney–client privilege. When assessing the rights and obligations of a client in a transaction or other matter, the lawyer is helping the client define his or her rights and obligations in relation to other persons and, therefore, to avoid litigation or ensure the protection of his or her interests in the event of legal proceedings. Advice on a legal position is generally given in order to allow the client to determine his or her rights and obligations in the event of a future dispute. It would indeed violate the right 14 ECtHR, 10 May 2007, Modarca v. Moldova, www.echr.coe.int/hudoc. 15 ECtHR, 16 December 1992, Niemitz v. Germany, series A, no 251-B; 20 June 2000, Foxley v. UK, www.echr.coe.int/hudoc. 16 ECtHR, 25 March 1992, Campbell v. United Kingdom, series A, no 233; 10 May 2007, Modarca v. Moldova, www.echr.coe.int/hudoc. 17 In case C-305/05 of 26 June 2007 (Belgian Bar Associations), the CJEU held that this also applies to Community law, pursuant to Article 6(2) of the Treaty on European Union. 18 ECtHR, 27 November 2008, Salduz v. Turkey, Rep. 2008.

7

Professional secrecy of lawyers in Europe

to a fair trial if this information could subsequently be used against the client in court. The foregoing has been confirmed by Directive 2005/60 of 26 October 2005 on the prevention of the use of the financial system for the purpose of money laundering and terrorist financing. The Member States may (but are not obliged to) exclude any information from being communicated to the authorities if it was provided to lawyers when their assistance was sought to ascertain a client’s legal position or to defend or represent a client in judicial proceedings or concerning such proceedings, including advice to enable the client to take a decision as to whether to institute or avoid proceedings.19 The twentieth recital to the directive expressly confirms that legal advice is subject to professional secrecy. Consequently, even if the Member State in question does not provide for an exclusion, it must respect the attorney–client privilege. It follows from this directive that assistance to ascertain the legal position of a client benefits from the attorney–client privilege, regardless of whether such assistance is provided in the context of litigation. Consequently, legal advice on the rights and obligations of a client in a transaction also benefits from the attorney–client privilege. 11. An additional basis for professional secrecy can be found in Article 8 ECHR, which guarantees the right to respect for private and family life, home and correspondence.20 The European Court of Human Rights has confirmed that this is a sufficient basis for professional secrecy.21 The lawyer’s office is protected under Article 8 ECHR.22 Exceptions to Article 8 ECHR are permitted if they are necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others and are imposed by law (Art. 8(2) ECHR). Interference by a public authority is only justified if it is in accordance with the law (in the substantive sense), pursues one or more of the legitimate interests referred to above and, in addition, is necessary in a democratic society to achieve those aims.23 ‘Necessary’ means that the interference is in answer to a pressing societal need and, in particular, is proportionate to the legitimate aim being

19 Art. 23(2) of Directive 2005/60 of 26 October 2005 on the prevention of the use of the financial system for the purpose of money laundering and terrorist financing. 20 Opinion of Advocate-General Maduro in Case C-305/5 of the CJEU, 14 December 2006, para. 42. 21 See e.g. ECtHR, 27 September 2005, Petri Sallinen et al. v. Finland, www.echr.coe.int/hudoc. 22 ECtHR, 16 December 1992, Niemitz v. Germany, series A, no 251-B; 25 February 2003, Roemen and Schmit v. Luxembourg, Rep. 2003-IV. In Niemitz, the Court referred to the broader concept of domicile in the French version of Article 8. 23 ECtHR, 20 June 2000, Foxley v. UK, www.echr.coe.int/hudoc.

8

Professional secrecy in Europe

pursued.24 Exceptions to Article 8(2) must be interpreted narrowly, and the need for the exception must be convincingly established.25 In the Court’s opinion, correspondence with lawyers is privileged and interference must therefore be solidly justified.26 This implies, for example, that correspondence between prisoners and their lawyers can only be opened if it is necessary to do so in order to prevent abuse and provided sufficient guarantees are available that the letters will not be read, i.e. that the attorney–client privilege will not be violated. One possibility could be to have the letters opened in the prisoner’s presence. Reading such letters is only permissible if ‘the authorities have sufficient cause to believe that the privilege is being abused in that the contents of the letter endanger prison security or the safety of others or are otherwise of a criminal nature’. The Court further stated that ‘the possibility of examining correspondence for reasonable cause provides sufficient safeguard against the possibility of abuse’.27 The fact that a lawyer advises a client to refuse to make a statement cannot be considered a sufficient ground to justify opening the lawyer’s letters.28 Indeed, a lawyer is entitled to advise his or her clients on the legal implications of statements made in the context of an investigation and on how to act to safeguard his or her interests. Under these circumstances, the provision of advice cannot be considered an obstruction of justice. In keeping with the above-mentioned case law, the European Court of Human Rights has held that the redirecting of a bankrupt person’s correspondence to the trustee in bankruptcy, in order to identify assets, can be necessary in a democratic society, provided it is accompanied by adequate and effective safeguards to ensure minimum impairment of the right of respect for the bankrupt’s correspondence, in particular correspondence with the bankrupt’s lawyer. Such correspondence, whatever its purpose, concerns matters of a private and confidential nature. Opening such correspondence would constitute a violation of the attorney–client privilege and of Article 8 ECHR.29 In the event of the search of the offices of a lawyer, professional secrecy must be guaranteed by the presence of an independent observer, who is bound 24 ECtHR, 20 June 2000, Foxley v. UK, www.echr.coe.int/hudoc; 25 March 1992, Campbell v. United Kingdom, series A, no 233; 5 July 2001, Erdem v. Germany, www.echr.coe.int/hudoc; 10 October 2006, L.L. v. France, www.echr.coe.int/hudoc. 25 ECtHR, 25 February 1993, Cr´emieux v. France, series A, no 256-B. 26 Van Dijk et al., Theory and Practice of the European Convention, 732; see also ECtHR, 25 March 1992, Campbell v. UK, series A, no 233. 27 ECtHR, 25 March 1992, Campbell v. UK, series A, no 233; 24 February 2005, Jankauskas v. Lithuania, www.echr.coe.int/hudoc. 28 ECtHR, 20 June 1988, Sch¨onenberger and Durmaz v. Switzerland, series A, no 137. 29 ECtHR, 20 June 2000, Foxley v. UK, www.echr.coe.int/hudoc. The Court did not further examine the alleged breach of Article 6 ECHR as it was not necessary to do so in this case.

9

Professional secrecy of lawyers in Europe

by professional secrecy and has ‘the requisite legal qualification in order to effectively participate in the procedure’; furthermore, he or she ‘should be vested with requisite powers to be able to prevent, in the course of the sifting procedure, any possible interference with the lawyer’s professional secrecy’.30 In the event of copying electronic data, the discs must be sealed for review by an independent authority. Moreover, the scope of the search warrant must be reasonably limited to enable legal consequences to be foreseen. If such is not the case, the review should be accompanied with ‘sufficient procedural safeguards, capable of protecting the applicant against any abuse or arbitrariness’.31 It follows from these decisions that the European Court of Human Rights is of the opinion that even in cases where interference is required in the interest of society, such interference must not violate the attorney–client privilege. If it does so, the right to a fair trial will be undermined. 12. In espionage and terrorist cases, the Court will take into consideration that special legislation authorising secret surveillance of the mail and telecommunications, including of subversive persons, is necessary in the interest of national security and the prevention of disorder or crime, given the need for states to take special measures to protect society against highly sophisticated forms of espionage and terrorism.32 Such legislation can also provide for the monitoring of a lawyer’s correspondence with clients, provided sufficient safeguards are available, such as monitoring by an independent judge who is under a duty to keep the information confidential.33 In these cases, the Court noted that some degree of compromise between the requirements for defending a democratic society and individual rights is inherent in the system established by the European Convention on Human Rights.34 It is, of course, important, as the Court accepts, to guarantee that the information exchanged between a lawyer and his or her client cannot be used against the client in proceedings, which implies monitoring by an impartial judge who is not involved in the case and is, moreover, subject to a duty of confidentiality. Of course, if it appears from the correspondence that the lawyer is participating in terrorist activities or acts of espionage, the judge should, in accordance with the procedures laid down in the law, be authorised to take the necessary actions, such as informing the police. However, such actions should only be permitted if it has been established through a separate procedure before an independent judge that the lawyer is in violation of the law.

30 31 32 33 34

10

ECtHR, 5 July 2012, Golovan v. Ukraine. ECtHR, 3 July 2012, Robathin v. Austria. ECtHR, 6 September 1978, Klass et al. v. Germany, series A, no 28. ECtHR, 5 July 2001, Erdem v. Germany, Rep. 2011-VII. ECtHR, 5 July 2001, Erdem v. Germany, Rep. 2011-VII.

Professional secrecy in Europe

C

Ethical and contractual basis 13. In a large number of countries, professional secrecy or attorney–client privilege is enshrined in the bar association’s code of ethics. Violations will result in disciplinary sanctions, in accordance with local procedures. In addition, it appears that the duty to professional secrecy is generally considered to result from or at least to be part of the contract between the lawyer and his or her client. Consequently, any violation of the privilege constitutes a breach of contract, allowing the injured party to claim the appropriate remedies and damages. This is accepted in Austria, Belgium, Bulgaria, Cyprus, Denmark (without a right to damages), Estonia, Germany, Finland, France, Iceland, Ireland, Latvia, Lithuania, Luxembourg, the Netherlands, Norway, Poland, Portugal, Romania, Scotland (if it is implied in contract), Slovakia, Slovenia, Sweden and Switzerland. In other countries where professional secrecy is solely based on the law (and not on a contract with the client), the client can claim damages for violation of this legal duty. This is the case in Greece, Italy, Malta, Spain and the United Kingdom. However, this does not mean that professional secrecy requires a contract. As soon as a person conveys confidential information to a lawyer to seek advice, the latter is bound to professional secrecy even before being retained.

D

Information protected by professional secrecy 14. Any information a lawyer receives or obtains in the context of assisting a client in relation to legal proceedings or any conflict in general or to determine the rights and obligations of the client benefits from the attorney–client privilege.35 Indeed, effective representation of a client’s interests requires that the client be able to speak freely to his or her lawyer and that the information exchanged be kept confidential (see no 9 above). Consequently, any information exchanged in order to help the client safeguard his or her rights or interests is protected by professional secrecy. In this way, any information that the lawyer acquires when handling the client’s case will be protected. This applies not only to information provided by the client and advice given by the lawyer but also to all other information the lawyer or the lawyer’s assistants acquire in assisting the client. Making such information available to the authorities or other parties would jeopardise the right to a fair trial. The attorney–client privilege should apply without restriction to all communications between lawyer and client in relation to legal proceedings, regardless of whether the communication is made before or during the proceedings.36 As explained above (see no 10 of this chapter), the privilege also extends to 35 CJEU, 26 June 2007, case C-305/05 (Belgian Bar Associations). 36 CJEU, 18 May 1982, case 155/79 (AM&S).

11

Professional secrecy of lawyers in Europe

legal advice provided by the lawyer outside the context of litigation, provided it relates to an assessment of the client’s legal position. 15. Any communication between a client and his or her lawyer in relation to the matter for which the client seeks the lawyer’s assistance, as well as any information the lawyer obtains in preparing such legal assistance, is protected. The medium of support is not relevant. Indeed, letters, e-mail, computer programs, documents, personal notes of the lawyer37 and oral communications, recorded or otherwise made available, are all protected. Professional secrecy continues to apply to advice of a lawyer which is copied into internal communications circulated within the company the lawyer assists.38 However, when information is communicated through means or media which are not secure from third parties reading the information, professional secrecy may be refused, as it may be assumed that the information is not only intended for the client. This is the case for communications through Facebook, Twitter and LinkedIn.

E

Advisers subject to professional secrecy 16. When defending the interests of their clients, i.e. advising on the client’s rights and obligations or representing the client in legal proceedings challenging such rights and obligations, lawyers are subject to professional secrecy. This includes both the duty to keep the information confidential and the right to refuse to disclose this information when ordered by a court. This is the case regardless of where the lawyer or the client is situated. In the European Union, professional secrecy applies to all lawyers registered with a bar association of an EU Member State.39 It suffices for the lawyer to be authorised to practise law in the state in which the assistance is provided.40 When assisting a client, the lawyer should not be employed by the client and should be independent. If the lawyer is bound to the client by a relationship of employment, the information exchanged will not benefit from the attorney– client privilege.41 However, national law may provide for a duty of professional secrecy for in-house counsel. The duty of professional secrecy applies to the lawyer’s associates, staff and any person engaged by the lawyer in the course of providing professional services, both inside and outside the firm.42 The information made available to these persons, or gleaned by them in the course of assisting the client, is subject to the attorney–client privilege. 37 38 39 40 41 42

12

ECtHR, 24 July 2008, Andr´e et al. v. France, www.echr.coe.int/hudoc. Court of the EU, 4 April 1990, case T-30/89, Hilti v. Commissie, ECR 1990, II-163. CJEU, 18 May 1982, case 155/79 (AM&S). ECtHR, 21 January 2010, Xaviera da Silveira v. France. CJEU, 14 September 2010, case 550/7 (Akzo). Art. 2(3)(4) of the CCBE Code of Conduct for European Lawyers.

Professional secrecy in Europe

17. The attorney–client privilege is, however, not limited to lawyers who belong to a bar association but extends in general to any person assisting someone else in relation to legal proceedings. Indeed, Article 23 of Directive 2005/60 of 26 October 2005 on the prevention of the use of the financial system for the purpose of money laundering and terrorist financing expressly authorises the Member States to exclude ‘notaries, independent legal professionals, auditors, external accountants and tax advisers’ from the obligation to inform the authorities when their assistance is intended to ascertain the legal position of a client or to defend or represent a client in judicial proceedings or with respect to such proceedings, which includes advice to allow the client to take a decision intended to institute or avoid judicial proceedings. The question thus arises whether any independent person who assists a party in the context of litigation is protected by the attorney–client privilege. It seems that this is the case if the assistance is necessary to ensure a fair trial. However, according to the twentieth recital to Directive 2005/60, this exception is limited to ‘independent members of professions providing legal advice which are legally recognised and controlled, such as lawyers’. It seems fair that the European authorities wish to limit the attorney–client privilege to professional advisers who are recognised as such by the public authorities and are subject to specific rules and obligations regulating their profession. As explained above (see no 16), the duty extends to all persons working on the behalf of these advisers in order to defend the legal interests or ascertain the rights and obligations of a client.

F

Limitations and derogations 18. The attorney–client privilege is linked to the lawyer’s duty to defend a client’s interests in law. Consequently, it does not apply when the lawyer acts outside this context, e.g. when the lawyer acts as a company director or a court-appointed representative, such as a trustee in bankruptcy. In such cases, the information gathered by the lawyer in the exercise of his or her functions is not protected by professional secrecy (unless the lawyer in question consults a lawyer to assist him or her with respect to the exercise of such functions). 19. Professional secrecy cannot be used to cover up criminal activity and in general will be set aside if the lawyer uses it for the purpose of committing a crime. In practically all Member States, the court will determine whether the lawyer’s actions constitute a crime. To this end, the court can read any letters from the lawyer to his or her client if there is reason to believe that the letter constitutes a crime. As explained above, however, the European Court of Human Rights requires that the necessary safeguards be put in place in order to ensure that the authorities do not gain access to privileged information (see nos 11 and 12 of this chapter). In some countries, this decision is, pursuant to the case law of the European Court of Human Rights, delegated to an independent judge 13

Professional secrecy of lawyers in Europe

who is not the judge presiding over the trial. This is the case for France and Portugal and likely in the United Kingdom. Other countries do not provide so explicitly, but it would be required that at least a judge must take the decision eventually, in combination with the presence of the president or other representative of the Bar. Similarly, a lawyer (or any other professional adviser) cannot invoke the attorney–client privilege if he or she ‘is taking part in money laundering or terrorist financing’ or if ‘the legal advice is provided for money laundering or terrorist-financing purposes or the lawyer knows that the client is seeking legal advice for money laundering or terrorist-financing purposes’.43 It should be noted that the last exception, i.e. when the lawyer knows that the client is seeking advice for the purpose of money laundering or terrorist financing, is difficult to apply in practice. It implies that the lawyer should always verify the intentions of his or her client and refuse to assist when there are indications that the advice will be used for money laundering or terrorist financing. This exception should thus be interpreted narrowly to apply only when the legal advice is the means used to commit the crime, i.e. the lawyer uses his or her legal knowledge to perpetrate or participate in a crime. 20. Professional secrecy may conflict with the public interest. The European Court of Human Rights has indicated that, in such cases, a balance must be sought, and any restrictions on professional secrecy should be strictly necessary to safeguard a more important public interest. Even in such cases, however, the necessary safeguards should be put in place to protect professional secrecy and due-process rights (see no 12 of this chapter). 21. It is generally accepted that a lawyer should, or is entitled to, set aside professional secrecy if a higher value is at stake which can only be safeguarded through the disclosure of confidential information. This will typically be the case when a lawyer is informed by his or her client of imminent harm to another person. In that case, the lawyer should at least be entitled to be able to contact the authorities in order to prevent the act from being carried out. In doing so, however, the lawyer should disclose only information that is necessary to prevent the harm, preferably through the bar authorities. It should be noted that the threat should be imminent and disclosure of the confidential information the only means of preventing it. The same applies to the right to a fair trial. A lawyer who is being prosecuted must be able to defend himself or herself and, if necessary, to disclose privileged information. Indeed, the lawyer’s right to a fair trial prevails over the duty of professional secrecy. This is applicable in Belgium, Cyprus, the Czech Republic, Denmark, France, Germany, Greece, Finland, Hungary, Ireland, Italy, Lithuania, Luxembourg, Malta, the Netherlands, Poland, Portugal, Romania, 43 Twentieth recital to Directive 2005/60/EC.

14

Professional secrecy in Europe

Scotland, Slovakia, Sweden and the United Kingdom. In Switzerland, the client or the supervisory authority must release the lawyer in order to allow him to defend himself. It may also be argued to be applicable in the following countries, although there is no case law to support this: Austria, Bulgaria, Latvia, Slovenia and Spain. In other countries, such as Estonia and Iceland, it remains unclear.

G

Waiver by the client 22. Professional secrecy is intended to protect the client’s interests.44 In a number of jurisdictions, it is also intended to ensure the proper administration of justice and therefore safeguard the public interest. In these jurisdictions, it is argued that the client cannot waive the attorney–client privilege and decide, or instruct the lawyer, to disclose to the court communications with his or her lawyer. In general, there are three different theories. In a limited number of countries, the duty of professional secrecy is an absolute obligation which cannot be waived, either by the client or by the lawyer. This is the case in France, Iceland, Luxembourg, Portugal and Spain. Poland seems to fall into this category. In other countries, professional secrecy can be set aside, if necessary, in order to defend the client. This is the case in Belgium, Italy, Latvia and the Netherlands. Finally, in most countries, a client can decide to waive the attorney–client privilege, which is designed solely to protect his or her interests. This is the case in Austria, Bulgaria, Cyprus, the Czech Republic, Denmark, Estonia, Finland, Germany, Hungary, Ireland, Italy, Liechtenstein, Lithuania, Malta, Norway, Romania, Slovakia, Slovenia, Sweden, Switzerland and the United Kingdom. The conditions for and extent of the waiver are discussed in the national chapters of this book. In some countries the lawyer must speak; in others he may still refuse to speak. 23. In the AM&S case,45 the European Court of Justice held that professional secrecy cannot prevent the client from disclosing letters exchanged with his or her lawyer. This case involved correspondence with UK lawyers. Indeed, in the UK, clients are entitled to waive the attorney–client privilege. This decision has been referred to by national courts to justify authorising clients to disclose privileged information. In any case, even in countries where professional secrecy is deemed to be in the public interest, it must be set aside when due process so requires. Indeed, due-process rights prevail over rules designed to protect the public interest, to the extent setting them aside does not prejudice any other party (see no 21 of this chapter). 44 Lord Denning, The Due Process of Law, London: Butterworths, 1980, 29. 45 Referred to in note 6.

15

Professional secrecy of lawyers in Europe

H

Search of a lawyer’s office 24. A law office is considered a ‘home’ within the meaning of Article 8 ECHR (see no 11 of this chapter). Article 8 also protects correspondence with a lawyer. Consequently, interference by a public authority is only admissible if it is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country; for the prevention of disorder or crime; for the protection of health or morals; or for the protection of the rights and freedoms of others (Art. 8(2) ECHR). The search of a law office by the public prosecutor’s office or any other public authority constitutes interference by a public authority and as such is only permissible if it satisfies the above requirements. This applies to both paper and electronic files.46 25. The interference should be based on specific statutory provisions under the laws of the relevant Member State. In addition, the provisions in question should be accessible to the persons concerned, who must be able to foresee their consequences, and compatible with the rule of law, meaning that the law should protect individuals against arbitrary interference, to a certain extent.47 This requirement is not satisfied if the law does not indicate with sufficient clarity the circumstances under which privileged material can form the object of a search and seizure.48 It follows from the foregoing that a search must be accompanied by specific procedural safeguards,49 which typically include the presence of and supervision by a representative of the bar association, who can intervene if the duty of professional secrecy is jeopardised. 26. The interference should have a legitimate aim, i.e. one of those mentioned in Article 8(2) ECHR. 27. Finally the interference should be necessary in a democratic society, i.e. it should be based on a pressing social need and, in particular, be proportionate to the legitimate aim pursued (see no 11 of this chapter). When determining if this requirement is met, it should be borne in mind that an encroachment on professional secrecy may have repercussions for the proper administration of justice and hence on the right to a fair trial guaranteed by Article 6 ECHR.50

46 47 48 49

ECtHR, 16 October 2007, Wieser and Bicos Beteiligungen v. Austria, Rep. 2007-IV. ECtHR, 27 September 2005, Petri Sallinen et al. v. Finland, www.echr.coe.int/hudoc. ECtHR, 13 January 2009, Sorvisto v. Finland, www.echr.coe.int/hudoc. ECtHR, 25 February 2003, Roemen and Schmit v. Luxembourg, Rep. 2003-IV; 23 November 2010, Moulin v. France, www.echr.coe.int/hudoc; and, with respect to electronic files, 16 October 2007, Wieser and Bicos Beteiligungen v. Austria, Rep. 2007-IV. 50 ECtHR, 16 December 1992, Niemitz v. Germany, series A, no 251-B.

16

Professional secrecy in Europe

The European Court of Human Rights has held, furthermore, that a search warrant should not be drafted in broad terms.51 The warrant should clearly indicate its scope in relation to the ongoing investigation. A warrant that is worded so broadly as to allow the seizure of documents and files pertaining to unrelated civil proceedings will be deemed invalid.52 If a search warrant is issued further to an ex parte petition, in order to preserve the element of surprise, it is important for it to be subject to review by an independent judge.53

I

Phone tapping 28. Monitoring and tapping telephone lines and other telecommunication tools, including telephone calls and other telecommunications with and from lawyers, are considered interference with the right to privacy and a violation of the privacy of correspondence guaranteed by Article 8 ECHR. Such monitoring therefore should meet the requirements of Article 8(2) in the same way as the search of a lawyer’s office (see no 25 of this chapter).54 Phone tapping must be based on a precise law55 which provides adequate information as to the circumstances and conditions under which the public authorities can resort to such measures.56 In other words, the extent of the authorities’ powers and the manner in which these powers can be exercised should be set out in detail in order to curtail the court’s discretion when applying these measures.57 This means the law should contain rules on the destruction and storage of and access to tapes and on the duration of the tapping, and should provide adequate safeguards against abuse.58 Further, the monitoring must be carried out under judicial supervision.59 Finally, the persons whose calls are monitored should be able to challenge the legality of the monitoring before a court.60

J

Confidentiality of correspondence between lawyers 29. In many countries, correspondence between lawyers within the same country is confidential, meaning that the ethical rules of the legal profession prevent 51 52 53 54 55 56 57 58 59 60

ECtHR, 25 February 2003, Roemen and Schmit v. Luxembourg, Rep. 2003-IV. ECtHR, 7 June 2007, Smirnov v. Russia, www.echr.coe.int/hudoc. ECtHR, 19 September 2002, Tamosius v. United Kingdom, Rep. 2002-VIII. ECtHR, 2 August 1984, Malone v. United Kingdom, series A, no 82; 25 March 1998, Kopp v. Switzerland, Rep. 1998-II, 540. ECtHR, 24 April 1990, Huvig v. France, series A, no 176-B. ECtHR, 25 March 1998, Kopp v. Switzerland, Rep. 1998-II, 540. ECtHR, 30 July 1998, Valenzuela Contreras v. Spain, Rep. 1998-V. Van Dijk et al., Theory and Practice of the European Convention, 737–8. ECtHR, 25 March 1998, Kopp v. Switzerland, Rep. 1998-II, 540. ECtHR, 10 April 2007, Panarisi v. Italy, www.echr.coe.int/hudoc, in which it concluded that if the monitoring has been performed in accordance with the law, the records thereof can be used as proof before a court without violating Article 6 ECHR.

17

Professional secrecy of lawyers in Europe

the use of such correspondence in court. This prohibition is intended to facilitate communication between lawyers and thus legal proceedings and out-of-court solutions. This is the case in the following countries: Belgium, Cyprus, the Czech Republic (in relation to client matters), France, Germany, Latvia, Luxembourg, the Netherlands, Norway, Portugal, Slovakia and Spain. In some countries, the correspondence should state explicitly that it is confidential; this is the case in Ireland, Italy, Malta, Romania, Switzerland and the United Kingdom. Finally, in other countries this is only the case if the correspondence contains privileged information about a client. When lawyers from different Member States wish to communicate in confidence, they must indicate as much before engaging in communication. If the recipient is unable to ensure confidentiality, the other party should be notified without delay (Art. 5(3) of the Code of Conduct for European Lawyers, adopted by the Council of Bars and Law Societies of Europe). If the letter has already been sent, the recipient should return the letter without revealing its content or referring to it in any way. If the law or rules to which the recipient is subject prevent the return of the letter, the recipient must inform the sender immediately.61 30. Confidentiality should be distinguished from professional secrecy. A confidential letter (between lawyers) will be covered by the attorney–client privilege if it forms part of correspondence between a lawyer and his or her client. For example, a letter from opposing counsel which is appended to a letter from the client’s own lawyer will be covered by professional secrecy if it is communicated for purposes of preparing the defence arguments. Consequently, the public authorities are not entitled to seize this letter in the hands of the client.62

3

Application under relevant Community law

A

Anti-Money Laundering Directive 31. Directive 2005/60/EC on the prevention of the use of the financial system for the purpose of money laundering and terrorist financing applies to lawyers and other professionals giving legal advice, in particular notaries and other independent legal professionals, including lawyers, when they participate on behalf of a client in any financial or real-estate transaction or assist a client with the planning or execution of a transaction concerning (i) the purchase or sale of real property or a business; (ii) the management of client funds, securities 61 Explanatory memorandum, 31. 62 In the recent Servier case, the European Commission took the opposite view (Decision of 23 July 2010, COMP/E-1.39612 P´erindopil (Servier)).

18

Professional secrecy in Europe

or other assets; (iii) the opening or management of bank, savings or securities accounts; (iv) the organisation of contributions necessary for the creation, operation or management of a company; and (v) the creation, operation or management of a trust, company or similar structure (Art. 2(3)(b)). Lawyers need only comply with the rules set forth in the Anti-Money Laundering Directive when they engage in the above-mentioned activities. Indeed, the Community legislature was concerned that legal services, in the context of financial and corporate transactions, could easily be misused for the purpose of laundering the proceeds of criminal activity or terrorist financing.63 Unlike lawyers, auditors, external accountants and tax advisers (including lawyers acting as tax advisers) need comply with the Directive regardless of the activity in question (Art. 2(3)(a)). The Anti-Money Laundering Directive provides that lawyers and the abovementioned professionals must verify the identity of their client (Art. 8) before agreeing to work for the client, or soon thereafter if immediate assistance is required (Art. 9). Law firms can use standard forms for this purpose. The information obtained is kept within the firm. Thus this verification obligation does not conflict with the duty of professional secrecy. In general, when identification is not possible, no client relationship can be established. However, national law must not extend this prohibition to situations in which notaries, independent legal professionals, auditors, external accountants and tax advisers are ascertaining the legal position of a client or defending or representing a client in, or with respect to, judicial proceedings, including the provision of advice on instituting or avoiding proceedings (Art. 9(5)). This derogation does not extend to legal advice provided outside the context of pending or future litigation. 32. The Anti-Money Laundering Directive provides for an obligation to report to the national Financial Intelligence Unit any transaction which the person subject to the directive suspects, or has reasonable grounds to suspect, constitutes money laundering or terrorist financing (Art. 22(1)). National law may provide that lawyers, notaries, tax advisers, auditors and external accountants can report to a self-regulatory body responsible for supervising their profession (Art. 23(1)). With respect to lawyers, this can be the bar association or the president of the relevant bar association, as is the case for Belgium, Cyprus, the Czech Republic, Denmark, France, Germany, Hungary, Italy, Lithuania, Luxembourg, Poland, Portugal, Romania and Spain (however, not yet instituted). In some countries, no specific regulation is provided. Finally, in other countries, the lawyer has to report to the national Financial Intelligence Unit; this is the case for Austria, Bulgaria, Estonia, Finland, Greece, Iceland, Ireland, Latvia, 63 Nineteenth recital to Directive 2005/60/EC.

19

Professional secrecy of lawyers in Europe

Malta, the Netherlands, Norway, Slovakia, Slovenia, Sweden and the United Kingdom. National law may also provide that notaries and independent legal professionals, such as lawyers, auditors, external accountants and tax advisers, are not obliged to report information they receive from or obtain about a client, in the course of ascertaining the client’s legal position or defending or representing the client in, or with respect to, judicial proceedings, including when providing advice on instituting or avoiding proceedings, regardless of whether such information is received or obtained before, during or after such proceedings (Art. 23(2)). In that case, the legal advice is covered by professional secrecy, and the lawyer cannot be obliged to disclose it.64 This holds true both when representing a client in pending proceedings or in preparation for future proceedings and when providing advice outside the context of legal proceedings in order to ascertain the client’s legal position.65 As explained above, this derogation does not apply if the lawyer is taking part in money laundering or terrorist financing or the legal advice is provided for such purposes or the lawyer knows that the client is seeking legal advice for such purposes (see no 19 of this chapter).66 33. The Court of Justice has held that the right to a fair trial precludes lawyers from providing information to the money-laundering authorities if such information is acquired while assisting a client in legal proceedings.67 In addition, legal advice provided outside the context of proceedings can be protected by professional secrecy (see no 10 of this chapter). This decision was rendered further to a request for a preliminary ruling submitted by the Belgian Constitutional Court (see Chapter 4 of this book, no 7).68 It follows that even if national anti-money-laundering legislation does not prevent lawyers from reporting privileged information, lawyers cannot disclose such information without violating the right to a fair trial guaranteed by Article 6 ECHR. Both information exchanged and obtained in relation to pending or future litigation and information that falls outside the context of litigation are protected. Not all national legislatures seem to agree with this conclusion, however. The following countries have provided that the provision of legal assistance outside the context of litigation cannot be cited to refuse to disclose information obtained when providing such assistance, if there are indications of money laundering or terrorist financing: Bulgaria, Denmark, Finland, Hungary, 64 Twentieth recital to Directive 2005/60/EC. 65 Twentieth recital to Directive 2005/60/EC. 66 Twentieth recital to Directive 2005/60/EC. 67 Case C-305/05 of 26 June 2007. In this case, the Court of Justice expressly stated that its decision was limited to compliance with Article 6 ECHR. 68 It has also been the basis for the French Conseil d’´etat’s decision of 10 April 2008 that legal advice outside legal proceedings is protected by professional secrecy (see Chapter 11 of this book, no 23).

20

Professional secrecy in Europe

Iceland, Italy, Latvia, Lithuania, the Netherlands, Norway, Poland, Portugal, Slovakia, Slovenia and the United Kingdom. As explained above (see no 32 of this chapter), this protection does not apply if the lawyer is participating in money laundering or terrorist financing or if disclosure is the only way of preventing imminent harm to others (see no 21 of this chapter).

B

Competition law 34. The inspection powers of the European Commission under Regulation (EC) no 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty are also limited by the attorney–client privilege.69 The European Commission is indeed not entitled to access and use information that is protected by professional secrecy. This applies to information in both the lawyer’s and the client’s files, when the European Commission is conducting an investigation. The same holds true for investigations by local competition authorities. The scope of professional secrecy may vary depending on the law applicable in each case.70 However, in any case, communications between a lawyer and his or her client cannot be used in court regardless of where and by which authority the investigation is conducted. 35. In Akzo,71 representatives of the Commission and the General Court read a communication which the parties claimed was privileged and confidential. This handling of lawyer–client communications, even when the secret nature of the correspondence has been challenged by the authorities, is not in accordance with the case law of the European Court of Human Rights. In any case, if letters that may be privileged must be examined, this should be done by an independent judge or party. In European competition cases, this task should be reserved to a judge of the General Court, who afterwards cannot rule on the merits of the case.

C

Transparency register for lobbyists 36. The European Commission and the European Parliament have established a common register of organisations and individuals engaged in EU policy making and policy implementation, known as the Transparency Register.72 This 69 70 71 72

Official Journal, 4 January 2003. The Court of Justice made this point in its Akzo decision of 14 September 2010. CJEU, 14 September 2010, case 550/7 (Akzo). European Parliament decision of 11 May 2011 on conclusion of an interinstitutional agreement between the European Parliament and the Commission on a common Transparency Register (2010/2291(ACI)).

21

Professional secrecy of lawyers in Europe

initiative is intended to keep track of organisations, companies, firms and individuals engaging in lobbying activities with the European institutions. Registration is required in order to obtain an access badge for the European Parliament buildings. The register covers all activities carried out for the purpose of directly or indirectly influencing the formulation or implementation of policy and the decision-making processes of the Community institutions. The provision of advice on the legal situation of persons, the representation of clients and participation in conciliation and mediation procedures for the purpose of avoiding litigation remain outside the scope of the register. In addition to identifying information, if the lobbyist is a law firm, it must provide information on its turnover attributable to activities that fall within the scope of the register, as well as the relative weight of each client, in accordance with a defined grid. The CCBE has confirmed that a lawyer can give this information without violating his or her duty of professional secrecy if the lawyer (or law firm) first obtains the client’s express consent.73

4

Conclusion 37. Since the last century, Europe has been at the forefront of the human rights movement. The European Convention on Human Rights, signed in 1950, enshrines the belief that human rights are fundamental to a truly free and just society. The right to a fair trial and the right to privacy are considered fundamental human rights. Today, there is a trend to limit individual human rights in the interest of society as a whole. Indeed, in a world where a few individuals can cause enormous harm with sophisticated weapons, there is currently an ongoing discussion as to whether human rights should be curtailed, in certain circumstances, in order to allow the forces of law and order to prevent attacks. The main argument is that the common good prevails over the interests of individuals. In this context, transparency can conflict with professional secrecy. A solution is often found somewhere in the middle. Professional secrecy should be set aside to avoid imminent harm. However, the issue is not so much in which cases to do so but rather how the derogation should be organised. Human rights can best be safeguarded by an independent magistrate who is not involved in the proceeding on the merits. 73 The CCBE asked the Belgian bar associations to define their position, as lawyers in Belgium are most affected by the Transparency Register. The CCBE’s position was defined in an agreement between the Brussels Bar Association, the Society of Dutch-speaking Bar Associations (Orde van Vlaamse Balies) and the Society of French- and German-speaking Bar Associations (Ordre des barreaux francophones et germanophones).

22

Professional secrecy in Europe

It is clear that professional secrecy should be set aside when a lawyer learns of criminals or terrorists plotting a crime or when the lawyer is requested to take part in a money-laundering scheme. However, it is less clear if this means that judges and law-enforcement officials can then seize privileged documents and examine them for information to prevent large-scale crimes. It is up to the European Court of Human Rights to ensure that, if permitted, the seizure is carried out in such a way as to safeguard the attorney–client privilege.

23

2 The CCBE rules on professional secrecy georges-albert dal Past President of the CCBE

I Introduction 24 II The Charter of Core Principles of the European Legal Profession III The Code of Conduct for European Lawyers 26

I

25

Introduction 1. Defending professional secrecy has been one of the major concerns of the Council of Bars and Law Societies of Europe (CCBE) since its foundation in 1960. This concern is at the heart of its work and it would take far too long to summarize what has been done during the CCBE’s plenary sessions and permanent committees, and within its Deontology Committee, where a working group is now exclusively devoted to the major issue of the lawyer’s deontology. There is no need to go over the battles that the CCBE has led with respect to money laundering and lobbying and its interventions in several international and national procedures, in the European Court of Justice and in the European Court of Human Rights. The purpose of this short introduction is to discuss, as a brief preliminary, this European notion, which is common to the forty-two effective members, associates and observers of the CCBE, starting from two founding texts. 2. Chronologically, those texts were, first, the Code of Conduct for European Lawyers, which goes back to 1988, and then, in 2006, the Charter of Core Principles of the Legal Profession. The Code of Conduct for European Lawyers, which became binding for all the bars of the Member States, deals with issues relating to the double deontology and applies exclusively to lawyers of European bars in their cross-border activities and relations. The Charter, elaborated at the initiative of the European Counsel, aims to highlight the ten founding principles of a bar organization in the rule of law. Methodologically, it seems more logical to examine first the founding principle as it has been worded in the Charter, and subsequently in the Code, which is obligatory in cross-border relations but has also become a source of the national deontology.

24

The CCBE rules on professional secrecy

II

The Charter of Core Principles of the European Legal Profession 3. Unanimously adopted on 25 November 2006, the Charter contains a list of ten principles common to the whole European legal profession. Respect of these principles is the basis of the right to a legal defence, which is the cornerstone of all other fundamental rights in a democracy. The core principles express the common ground which underlies the national and international rules governing the conduct of European lawyers. The Charter takes into account: 1. the national professional rules of states throughout Europe, including rules of non-CCBE states, which also share these common principles of European legal practice; 2. the CCBE’s Code of Conduct for European Lawyers; 3. the Principles of General Application in the International Bar Association’s International Code of Ethics; 4. Recommendation (2000) 21 of 25 October 2000 of the Committee of Ministers of the Council of Europe to Member States on the freedom of exercise of the profession of lawyer; 5. the Basic Principles on the Role of Lawyers, adopted by the Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders, Havana (Cuba), 27 August–7 September 1996; 6. the case law of the European Court of Human Rights and the European Court of Justice, and in particular the decision of 19 February 2002 of the European Court of Justice in Wouters v. Algemene Raad van de Nederlandse Orde van Advocaten (C-309/99); 7. the Universal Declaration of Human Rights, the European Convention on Human Rights and the European Union Charter of Fundamental Rights; and 8. the European Parliament resolution on the legal professions and the general interest in the functioning of legal systems, 23 March 2006. 4. As stated in the Preamble: There are core principles which are common to the whole European legal profession, even though these principles are expressed in slightly different ways in different jurisdictions. The core principles underlie the various national and international codes which govern the conduct of lawyers. European lawyers are committed to these principles, which are essential for the proper administration of justice, access to justice and the right to a fair trial, as required under the European Convention on Human Rights. Bars and law societies, courts, legislators, governments and international organisations should seek to uphold and protect the core principles in the public interest.

25

Professional secrecy of lawyers in Europe

The second core principle is: ‘the right and duty of the lawyer to keep clients’ matters confidential and to respect professional secrecy’. The comment reads as follows: It is of the essence of a lawyer’s function that the lawyer should be told by his or her client things which the client would not tell to others – the most intimate personal details or the most valuable commercial secrets – and that the lawyer should be the recipient of other information on a basis of confidence. Without the certainty of confidentiality there can be no trust. The Charter stresses the dual nature of this principle – observing confidentiality is not only the lawyer’s duty – it is a fundamental human right of the client. The rules of ‘legal professional privilege’ prohibit communications between lawyer and client from being used against the client. In some jurisdictions the right to confidentiality is seen as belonging to the client alone, whereas in other jurisdictions ‘professional secrecy’ may also require that the lawyer keeps secret from his or her own client communications from the other party’s lawyer imparted on the basis of confidence. Principle (b) encompasses all these related concepts – legal professional privilege, confidentiality and professional secrecy. The lawyer’s duty to the client remains even after the lawyer has ceased to act.

III

The Code of Conduct for European Lawyers 5. Originally adopted at the CCBE Plenary Session held on 28 October 1988, it was subsequently amended during the CCBE Plenary Sessions on 28 November 1998, 6 December 2002 and 19 May 2006. Among the general principles governing the profession, professional secrecy was retained from the very beginning, in the following terms: 2.3 Confidentiality 2.3.1 It is of the essence of a lawyer’s function that the lawyer should be told by his or her client things which the client would not tell to others, and that the lawyer should be the recipient of other information on a basis of confidence. Without the certainty of confidentiality, there cannot be trust. Confidentiality is therefore a primary and fundamental right and duty of the lawyer. The lawyer’s obligation of confidentiality serves the interest of the administration of justice as well as the interest of the client. It is therefore entitled to special protection by the State. 2.3.2 A lawyer shall respect the confidentiality of all information that becomes known to the lawyer in the course of his or her professional activity. 2.3.3 The obligation of confidentiality is not limited in time.

26

The CCBE rules on professional secrecy

2.3.4 A lawyer shall require his or her associates and staff and anyone engaged by him or her in the course of providing professional services to observe the same obligation of confidentiality.

It is often forgotten that an ‘Explanatory Memorandum’ is attached to the Code. It includes the following comments: This provision first restates, in Article 2.3.1, general principles laid down in the Declaration of Perugia and recognised by the ECJ in the AM&S case (157/79). It then, in Articles 2.3.2 to 4, develops them into a specific rule relating to the protection of confidentiality. Article 2.3.2 contains the basic rule requiring respect for confidentiality. Article 2.3.3 confirms that the obligation remains binding on the lawyer even if he or she ceases to act for the client in question. Article 2.3.4 confirms that the lawyer must not only respect the obligation of confidentiality him- or herself but must require all members and employees of his or her firm to do likewise.

It must be admitted that these comments are brief and of little use.

Conclusion 6. The content of the above provisions is very different. The Charter sets out a general principle. The Code does the same, but the principles become normative provisions related to the content of secrecy and its imprescriptibility, and the sharing of secrets with associates or collaborators who may or may not be lawyers. It is remarkable to note that those texts are the ‘common funds’ of secrecy in all European countries, whether from the Roman/German tradition or the common law. 7. In civil law countries where the public dimension of the secret professionnel is highlighted (an essential rule of public order ensuring maximum safeguarding for the proper functioning of a state that is subject to the rule of law), its contractual and professional natures remain present. In the UK, building on a rule of procedure on evidence, the courts have developed a general principle of law protecting any person involved in a legal dispute or calling upon a lawyer’s advice, be it in a dispute or not. This has also led to the formulation of a rule of substantive law protecting the rights to privacy. There is general agreement on that issue, but it is true that the real difficulties begin to appear when, general principles aside, factual situations exist in which secrecy conflicts with other values. In the eyes of many national laws, possible exceptions must be strictly justified by the need to respect values which are higher and clearly proportional to the goal to be achieved. 8. However, the freedom of national legislators is – above all – limited by the international standards accepted by the Member States of the Council of 27

Professional secrecy of lawyers in Europe

Europe and of the European Union. The lawyer’s professional secrecy falls under the right to privacy, as well as under the right to a fair trial; it is therefore safeguarded under Articles 8 and 6 of the European Convention on Human Rights. It is a remarkable convergence between the decisions of the European Court of Human Rights and the European Court of Justice and the General Court of the EU, establishing together a fundamental international standard on professional secrecy that is directly applicable. 9. It is within the limits provided by the case law and taking into account the Charter and the Code that different legal, regulatory or professional provisions about lawyers’ professional secrecy have to be considered.

28

3 Austria michael kutschera Member of the Council of the Vienna Bar Partner, Binder Gr¨osswang Rechtsanw¨alte GmbH

Preliminary note 30 1 Scope of and limitations on professional secrecy 30 A Statutory basis and implications 30 B Scope 31 C Persons subject to the duty of professional secrecy 32 D Limitations and derogations 33 a Limitations 33 b Derogations 34 E Law firms 35 F Legal assistants and staff 36 G External service providers 36 H Multidisciplinary associations 37 2 History 37 3 Supervision 37 A The bar associations 37 B The courts 38 4 Sanctions 38 A Proceedings and sanctions 38 a Disciplinary proceedings and sanctions 38 b Criminal proceedings and sanctions 41 c Civil proceedings and damages 41 5 Duty to provide information to the authorities 42 A Money laundering and terrorism 42 B Duty to provide information pursuant to Section 286 Criminal Code C Collective settlement of debts 44 6 Treatment of a lawyer’s documents and correspondence in the context of judicial investigations 45 7 Search of a lawyer’s office 45 8 Tapping of telephone conversations with a lawyer 46 9 The lawyer as witness 47 10 The lawyer and the press 49 11 Powers of the tax administration and other authorities 49 12 State security service 49

44

29

Professional secrecy of lawyers in Europe

Preliminary note 1. In Austria, lawyers who are admitted to a bar association (i.e. listed there as an attorney (Rechtsanwalt)) are subject to a duty of professional secrecy. Only lawyers who are admitted to a bar are entitled to appear in court (with a few exceptions). Such lawyers are self-employed, although they can be partners or associates in a law firm. They must comply with the statutory rules on the exercise of the legal profession (primarily the Lawyers Act – Rechtsanwaltsordnung) and the Guidelines on the Exercise of the Legal Profession, the Supervision of the Duties of the Lawyer and the Training of Candidate Lawyers (Richtlinien f¨ur die Aus¨ubung des Rechtsanwaltsberufes, f¨ur ¨ die Uberwachung der Pflichten des Rechtsanwaltes und f¨ur die Ausbildung der Rechtsanwaltsanw¨arter (RL-BA 1977)). In Austria, there is a bar association (Rechtsanwaltskammer) in each province (Bundesland). In total, Austria has nine bar associations, each of which is presided over by a president, his or her deputies and a council (Ausschuss). The nine bar associations form the ¨ Austrian Bar (Osterreichischer Rechtsanwaltskammertag), which is headed by a President and a Council (Pr¨asidium). Lawyers who work for a company (in-house counsel), the state or a public organisation are not members of a bar association. Austrian law does not know the common law principle of attorney–client privilege. 2. This chapter focuses on the duty of professional secrecy of lawyers who belong to a bar association. Unless indicated otherwise, for the purposes of this chapter, the term ‘lawyer’ refers to a member of a bar association (Rechtsanwalt).

1

Scope of and limitations on professional secrecy

A

Statutory basis and implications 3. Austria, the concept of professional secrecy is implemented by the following statutory provisions. The duty of professional secrecy is set forth in the Lawyers Act (Rechtsanwaltsordnung) and – stipulating the right to refuse to give evidence – in procedural statutes such as Section 157 of the Code of Criminal Procedure (Strafprozessordnung) and Section 321(1)(4) of the Code of Civil Procedure (Zivilprozessordnung), as well as Section 49(1) and Section 49(2) of the Code of Administrative Procedure (Allgemeines Verwaltungsverfahrensgesetz). In accordance with Section 9(2) of the Lawyers Act the lawyer is subject to professional secrecy in respect of all matters which are entrusted to him/her and which have otherwise become known to him/her in his/her professional function and provided the confidential treatment of information is in the interest of his/her client. Under the Lawyers Act he/she has the right to invoke

30

Austria

professional secrecy in court and administrative proceedings in accordance with the respective statutory rules. Section 9(3) of the Lawyers Act provides that the lawyer’s right to professional secrecy according to Section 9(2) of the Lawyers Act may generally not be circumvented by judicial or administrative measures, in particular by interrogation of the lawyer’s staff or by requesting disclosure of documents, images, speech or data carriers or by search and seizure. 4. The duty of professional secrecy is a consequence of the duty of loyalty.1 It is an indispensable condition to enable a lawyer to practise law independently. If the client does not provide the lawyer with the necessary information, the lawyer will not be able to properly carry out his/her mandate. A client must have the confidence that his/her involvement of the lawyer as well as disclosure of information to the lawyer will not result in evidence which may be used to the client’s detriment.2 The duty of professional secrecy is a vital element of the exercise of the legal profession. Without the duty to keep entrusted facts secret vis-`a-vis third parties, the practice of the legal profession, as well as the corresponding right to refuse to give evidence before courts, administrative authorities and comparable bodies, is inconceivable.3 Therefore every exception to this principle has to be interpreted narrowly and examined with particular diligence.4 Even the appearance of a breach of this principle by a lawyer should be avoided.5 According to long-standing case law, the duty of professional secrecy goes beyond a client’s instruction.6 The duty continues vis-`a-vis the heirs of the deceased client.7 5. An obligation to keep information provided by the client confidential is implied in the client’s contract with the lawyer. Disclosing information without the client’s consent therefore constitutes a breach of contract as well.

B

Scope 6. Professional secrecy covers all information, whether written or oral, provided by the client to his or her lawyer in order to prepare for litigation relating to 1 T. Schur, ‘Die Anwaltliche Verschwiegenheitspflicht in der o¨ sterreichischen Rechtsordnung’, AnwBl 2009, 258. 2 See OBDK (Oberste Berufungs- und Disziplinarkommission f¨ur Rechtsanw¨alte und Rechtsanwaltsanw¨arter), 25.10.2004, 4 Bkd 3/04. 3 The Professional Secret, Confidentiality and Legal Professional Privilege in Europe (An Update of the Report by D. A. O. Edwards), Council of the Bars and Law Society of the European Union CCBE, 2004, 4. 4 OBDK 24.1.2000, 11 Bkd 4/99. 5 OBDK 9.7.1979, Bkd 28/79; 14.10.1991, Bkd 92/89; 16.12.1996, 3 Bkd 4/96; 7.4.2003, 6 Bkd 4/02; 8.10.2007, 16 Bkd 2/07. 6 OBDK 14.10.1991, Bkd 92/89. 7 OBDK 29.11.1988, Bkd 34/88.

31

Professional secrecy of lawyers in Europe

the client’s rights and obligations or in the course of soliciting advice regarding the client’s legal rights and obligations, and all information which comes to the lawyer’s attention in this context, including information provided by the opposing or a third party, as well as the lawyer’s work products.8 The lawyer is bound by professional secrecy with respect to all information entrusted to him/her and with respect to all facts which have otherwise become known to him/her in the course of his/her conduct as a lawyer, if the confidentiality of such facts is in the interest of his/her client. The duty of professional secrecy extends to industrial and trade secrets.9 It is irrelevant whether such information is available to third parties or not.10 There is no exception if the facts in question are known to the court. In sum, professional secrecy covers, in general, all information the lawyer receives from a client as well as all information received from the opposing party, opposing counsel or any third party.

C

Persons subject to the duty of professional secrecy 7. Only the lawyer and candidate lawyers (Rechtsanwaltsanw¨arter)11 are subject to the duty of professional secrecy.12 Provisions of statutory law, however, make clear that such duty should also extend to others who come into contact with confidential information. A duty of confidentiality of the lawyer’s staff, for instance, is not expressly mentioned either in the Lawyers Act or in any other provision. Section 9(3) of the Lawyers Act only provides that the right of the lawyer to protect confidential information in judicial proceedings (according to Section 9(2), second sentence, Lawyers Act) may not be circumvented by any legal or other measures, in particular by interrogation of the lawyer’s staff. Further, it can be inferred from the case law of the Supreme Appellate and Disciplinary Council (Oberste Berufungs- und Disziplinarkommission f¨ur 8 OGH 31.1.1992, 16 0s 15/91, AnwBl 1992/4156, AnwBl 1992/4309. 9 P. Fichtenbauer, ‘Die Verschwiegenheit des Rechtsanwalt als Vertragsverfasser’, AnwBl 1993, 69. 10 OBDK 4 Bkd 3/04. 11 Candidate lawyers have to fulfil about the same educational and other criteria as lawyers, but practise law in the name and under the responsibility of a lawyer. A minimum of three years’ practice as a candidate lawyer of an Austrian lawyer, and all in all five years of practice, is a requirement for admission as a lawyer (unless a person qualified as a lawyer in certain European countries applies for admission). Pursuant to S. 4 Disciplinary Statute for Lawyers and Candidate Lawyers (Disziplinarstatut), candidate lawyers are subject to the provisions applicable to lawyers, unless the law provides otherwise. 12 Rechtsanwaltsordnung: Texte, Materialien, Judikatur, Prolibris Verlagsgesellschaft, 2009, 118; OGH 2.9.2002, 4 Bkd 1/02.

32

Austria

Rechtsanw¨alte und Rechtsanwaltsanw¨arter) that the duty to preserve professional secrecy extends to the lawyers’ employees and assistants.13 8. The statutory framework should, however, be improved in that respect. The duty of confidentiality and the protection of secrecy should be extended to every person who comes into contact with protected information, such as staff, but also, for example, external computer and data-processing personnel who service the computers and electronic data of lawyers. Another example concerns lawyers in law firms in the form of a company with limited liability. Such companies may be required to establish a supervisory board. In that case supervisory board members should be subject to the duty of confidentiality irrespective of whether they are lawyers or not. All of the above-mentioned situations wait to be addressed by Austrian legislation.

D

Limitations and derogations 9. Professional secrecy is subject to a number of limitations and derogations. If an exception applies, the lawyer is obliged to disclose the information that falls under the exception. In the event of a derogation, the lawyer can decide whether to disclose the information in question or not. These limitations and derogations must, of course, be interpreted narrowly as they constitute limitations of due process and of the right to a fair trial.

a

Limitations

10. The lawyer is not bound by professional secrecy as a matter of law in the following exceptional cases. The lawyer is not bound to professional secrecy in the event of a professional liability action’s being brought against him/her by a client, when he/she needs to pursue a claim for professional fees in court,14 or when he/she is accused of having committed a crime;15 in the event of a liability action brought by a client against his/her lawyer, the right to disclose confidential information prevails over the protection of the client’s interest in order for the lawyer to defend him-/herself against the liability claim.16 A lawyer may only sue a (previous) client for his/her fee if there is no possibility of reaching an amicable settlement.17 In the claim the lawyer shall 13 P. Csoklich and E. Scheuba, Standesrecht der Rechtsanw¨alte, 2010, 48; OBDK 2.5.1988, Bkd 115/87, AnwBl 1989/3104; OBDK 24.1.1994, Bkd 65/90, AnwBl 1991, 795. 14 Csoklich and Scheuba, Standesrecht der Rechtsanw¨alte, 50. 15 E. Feil and F. Wennig, Anwaltsrecht, 2010, 126; OGH 2.9.2002, 4 Bkd 1/02. 16 M. Prohaska-Marchried, Geheimnisschutz berufsm¨aßiger Parteienvertreter: Berufsgeheimnisse und Ihre Anerkennung in Zivilprozeß, Strafprozeß, Verwaltungsverfahren, Abgabeverfahren, Finanzstrafverfahren und Kartellverfahren in der EU-Kommission, 1998, 45. 17 W. Herz, ‘Die Verschwiegenheit des Rechtsanwalts im Honorarprozess’, NBIRA 1957, 23.

33

Professional secrecy of lawyers in Europe

produce confidential information only to the extent necessary to describe his/her services. Only to the extent the claim (Klagebegehren) is disputed is the lawyer allowed to disclose further details (e.g. the level of the basis of the assessment or the appropriateness of the professional fee).18 The lawyer shall pay particular attention if, through disclosure of such information related to the fees, his/her client may be exposed to a criminal proceeding (especially in tax matters)19 and shall try to have the public excluded from any hearing.20 In most cases the facts on which the claim is based can be disclosed without thereby breaching the duty of professional secrecy.21 11. In criminal proceedings a distinction needs to be made between cases in which the investigation or proceeding against the lawyer has been initiated by the client and those initiated by a third person. Criminal proceedings initiated by the client imply relief from the duty of professional secrecy within the framework of the circumstances of the case.22 The lawyer will be able to defend him-/herself against the accusations brought against him/her without thereby breaching his/her duty of professional secrecy.23 If the criminal proceedings are initiated by a third person, the lawyer shall try to obtain the consent of his/her client to the disclosure of the entrusted secrets.24 However, the lawyer shall be allowed to produce confidential information in such a case to the extent necessary to defend his/her interests in court.25 In this case, limited disclosure is necessary to guarantee the lawyer a fair trial. 12. In addition, the lawyer has an obligation to disclose confidential information in certain cases involving money laundering and financing terrorism and certain other severe crimes (see no 34 of this chapter). b

Derogations

13. Unless there are exceptions provided by law, a lawyer can be released from the duty of professional secrecy only by his/her client. The only person who can release the lawyer from his/her duty of professional secrecy is the one whose confidence in the secrecy (non-disclosure) needs to be protected. This person is the so-called ‘holder of the information’ (Geheimnisherr).

18 D. Anderluh, W. D. Arnold and A. Fenyves (eds.), Berufsverschwiegenheit und Klientenschutz, ¨ Osterreichische Gesellschaft f¨ur internationale Zusammenarbeit im Notariat, 1994, 107. 19 OBDK 14.10.1991, Bkd 92/89. 20 Prohaska-Marchried, Geheimnisschutz berufsm¨aßiger Parteienvertreter, 54. 21 Ibid., 46; OBDK 17.11.1969, AnwBl 1972, 208. 22 E. Jahoda, ‘Zur Frage der anwaltlichen Verschwiegenheit’, NBlRA 1967, 43. 23 Prohaska-Marchried, Geheimnisschutz berufsm¨aßiger Parteienvertreter, 52. 24 Ibid., 52; OBDK 25.10.1965, NBlRA 1966, 130. 25 Csoklich and Scheuba, Standesrecht der Rechtsanw¨alte, 50.

34

Austria

The Geheimnisherr is certainly the client. In addition, the legal successor of the client can be considered owner of the information and thus a release from the duty of professional secrecy is also possible after the client’s death. In this case the disclosure has to be authorised by the client’s legal successor(s). 14. With release from the duty of professional secrecy, the right to refuse (i) to appear as a witness before a court, (ii) to give information and (iii) to give access to and to hand over documents will be lost in general.26 However, also in case of release from the duty of professional secrecy (which is related to the duty of loyalty) by the client, the lawyer must evaluate in advance whether disclosure is in the client’s best interest. 15. Prior to disclosure, the lawyer must verify, conscientiously, whether the client will have to fear disadvantage or damage through the disclosure, in which case the duty to secrecy prevails and no disclosure is permitted despite the waiver.27 Furthermore, a lawyer’s release from his/her obligation of secrecy has to be understood in the respective context: if he/she was, for example, released from his/her obligation of secrecy in connection with a fee proceeding, he/she is not allowed to use the information gained for other purposes which are not linked to the previous release.28

E

Law firms 16. Lawyers who work in a law firm tend to share confidential information. It is generally accepted that no restrictions apply to this type of sharing of information. When a client engages the services of a law firm, all the lawyers of the firm are deemed engaged. The firm can ask any of its lawyers to handle the case. The duty of professional secrecy applies to all information provided by the client to the lawyers or candidate lawyers of the firm, and regardless of whether the lawyer is a partner or not. The situation may be different when lawyers work in a mere cost-sharing structure. In this case, the lawyers do not practise law together, they only share cost and office space. If they are in a position to keep their practice of law completely separate and actually do so, then the duty of confidentiality will extend to confidential information entrusted to each individual lawyer only. In such cases, they have, among other things, to keep separate files. A client of one lawyer is not a client of the others. The duty of professional secrecy is therefore limited to information shared with the lawyer who represents the

26 H. Harbich, ‘Einige Fragen der anwaltlichen Verschwiegenheit’, AnwBl 1983, 677; OBDK 14.10.1991, Bkd 92/89. 27 OBDK 14.10.1991, Bkd 92/89. 28 OBDK 3.6.1991, Bkd 71/90; OBDK, Bkd 4/99.

35

Professional secrecy of lawyers in Europe

client and does not extend to the other lawyers who belong to the cost-sharing structure. However, complete actual separation of the legal practices is not easy to accomplish. As the mere fact that a person is seeking legal advice is subject to confidentiality, a joint reception may already extend duties of secrecy to other cost-sharing lawyers. Given that the economic advantages of cost-sharing arrangements imply the sharing of facilities and personnel, the duty of professional secrecy will in most cases extend to the cost-sharing lawyers as if they were partners.

F

Legal assistants and staff 17. The duty of professional secrecy requires permanent compliance with the secrecy obligation. The lawyer is obliged to secure the sphere of secrecy in such a way that the information is inaccessible to third parties. Permanent compliance with the secrecy obligation also includes supervision of the office staff with regard to their compliance with professional confidentiality.29 As set out in no 13 above, a duty of confidentiality is applicable to a lawyer’s employees and assistants, as has been held by the Supreme Appellate and Disciplinary Council.30 Information shared with such individuals with the intention that it be passed on to the lawyer handling the case is covered by the duty of professional secrecy. 18. Confidentiality agreements concluded between the lawyers and their employees and assistants are of great importance. Therefore it is appropriate that the lawyer informs every single staff member about the extent of the duty of confidentiality and instructs them in how to ensure confidentiality and data secrecy. In particular, the lawyer must point out that the duty of confidentiality exists also in respect of family members and colleagues. A contractual obligation of confidentiality will have to extend also after the end of the employment relationship.

G

External service providers 19. Law firms sometimes outsource services such as communication technology work or the review of documents governed by foreign law, and sometimes legal work such as due diligence or research. If such work is done by an external Austrian lawyer, no difficulty should arise, and the duty of professional secrecy extends to this lawyer. In case foreign lawyers become involved, the lawyer will have to check whether the rules on professional secrecy adequately protect the client. In addition, the client will have to consent. 29 Prohaska-Marchried, Geheimnisschutz berufsm¨aßiger Parteienvertreter, 137. 30 Csoklich and Scheuba, Standesrecht der Rechtsanw¨alte, 48; OBDK 2.5.1988, Bkd 115/87, AnwBl 1989/3104; OBDK 24.1.1994, Bkd 65/90, AnwBl 1991, 795.

36

Austria

If the confidentiality information is handed over to non-lawyer third parties, this will certainly require consent by the client and adequate measures to protect confidentiality.

H

Multidisciplinary associations 20. If the client agrees, a lawyer is entitled to co-operate, on a specific matter, with a professional who is not a lawyer, provided the lawyer ensures respect for professional secrecy. This does not mean that the lawyer cannot share information with the non-lawyer; information can be shared but only with the client’s consent and to the extent necessary to safeguard the client’s interests. Austrian lawyers are not allowed to form a professional association with non-lawyers. They also may not participate in law firms that form a partnership with non-lawyers abroad. Cost associations with non-lawyers are acceptable, but the lawyers will have to exercise their profession in a manner that fully maintains professional secrecy.31

2

History 21. The duty of professional secrecy has been one of the fundamental professional duties of an Austrian lawyer for nearly 150 years. The (first) Lawyers Act issued in 1868 provided in Section 9(2) that the lawyer is obliged to treat the information which is received from the client as confidential.32 Since then the protection of the lawyers’ confidentiality obligation has been gradually expanded, with the sole interruption of the period between 1938 and 1945. Only the introduction of the money-laundering provisions on the European level and their implementation in Austria has brought about a limitation in this respect.

3

Supervision

A

The bar associations 22. Each lawyer is under the supervision of one of the nine bar associations. According to Section 1(1) of the Disciplinary Statute for lawyers and candidate lawyers (Disziplinarstatut), a lawyer commits a disciplinary offence by culpably violating his/her professional duties or by damaging the reputation and good name of the profession through his/her behaviour. Either offence must be based on fault in the meaning of criminal law, which can be intention as well as negligence. The bases for the assessment of the lawyer’s as well of the candidate lawyer’s conduct are the Lawyers Act, the Practice Guidelines for Lawyers, 31 S. 16 European Lawyers Act (EIRAG). 32 Rechtsanwaltsordnung of 6 July 1868, Reichsgesetzblatt RGBl no 96/1968.

37

Professional secrecy of lawyers in Europe

Guidelines for Supervision of Lawyer’s Duties and for Training of Candidate Lawyers and their interpretation by the case law related to professional ethics and deontology. The same laws and case law shall also apply to candidate lawyers. Every member of a bar association is expected to be familiar with all the abovementioned provisions. 23. The bodies (authorities) involved in the disciplinary proceedings are the following – one of each is established at every one of the nine bar associations: the bar prosecutor (Kammeranwalt); the investigator (Untersuchungskommiss¨ar); and the Disciplinary Council (Disziplinarrat). The last instance in disciplinary proceedings is the Supreme Appellate and Disciplinary Council (Oberste Berufungs- und Disziplinarkommission), which is composed of judges of the Austrian Supreme Court and of lawyers. The Disciplinary Council acts as a tribunal for breaches of rules of ethics and deontology. Its structure reflects the idea of a ‘jury of peers’. 24. The Disciplinary Council cannot direct or instruct lawyers upon the handling of their cases. Their authority is limited to the imposition of disciplinary sanctions if a lawyer violates his/her professional obligations or by his/her behaviour damages the reputation and good name of the profession. The Bar Association Council (Ausschuss) of a bar association is entrusted with the supervision of lawyers and may issue instructions to assure compliance with rules of ethics and deontology. Such instructions are binding upon the lawyer in question and are issued most frequently upon request of a lawyer who wants to be sure that his/her own conduct will be in compliance with such rules. The duty of professional secrecy is indeed a professional obligation, the violation of which will result in the imposition of disciplinary sanctions.

B

The courts 25. Lawyers must, of course, abide by the law. The civil courts have jurisdiction to hear any claim for professional liability brought against a lawyer by a client. The criminal courts have jurisdiction over lawyers accused of having committed crimes in the exercise of their profession or otherwise. No special rules apply in this respect to lawyers.

4

Sanctions

A

Proceedings and sanctions

a

Disciplinary proceedings and sanctions

26. Complaints and charges against lawyers for violation of ethical rules have to be filed with the bar association at which the lawyer is listed. 38

Austria

The bar prosecutor (Kammeranwalt) must be informed of every complaint filed against a lawyer, as well as every suspicion of a disciplinary offence committed by a lawyer. Exceptions thereto are complaints which are submitted to the bar association council (Ausschuss), which may deal with a complaint directly. However, if a bar association council finds that there is indeed a violation of disciplinary law, it will pass the complaint on to the bar prosecutor. Furthermore, the bar prosecutor can also initiate proceedings at his/her own initiative. The bar prosecutor takes part in the investigations and the hearing related to disciplinary offences. He/she is entitled to inspect the files relevant to the case and to submit respective requests. The bar prosecutor acts principally independently but is bound by instructions received from the respective bar association council. The role of the bar prosecutor in the proceedings is to act in a neutral and objective manner. He/she therefore will take into account all circumstances both in favour and to the detriment of the lawyer being accused. 27. If the bar prosecutor believes that there are no sufficient grounds for disciplinary sanctions (i.e. that no violation of professional duty, no damage to the reputation and good standing of the profession, was caused by the lawyer’s conduct) the bar prosecutor can drop the charges and inform the bar association council of the main reasons for his/her decision. The bar association council may then take the necessary measures in line with professional supervision or order the bar prosecutor to continue the proceedings. If the bar prosecutor concludes that the charges shall not be dropped or if the bar association council orders him to pursue the disciplinary offence, he/she may request that the president of the Disciplinary Council appoint an investigator (Untersuchungskommiss¨ar). The president of the Disciplinary Council will then appoint a member of the Disciplinary Council as investigator, or alternatively submit the file to a three-member panel of Disciplinary Council members suggesting dismissal of the charges. If such a panel does not dismiss the charges (a decision which can be appealed), the investigator is entitled to hear the accused lawyer, as well as witnesses, and may consult experts or perform other inspections. In order to accomplish his/her tasks he/she can also request the state prosecutor to render legal assistance (S. 27 Disciplinary Statute for Lawyers and Candidate Lawyers). After closing the investigation, the president of the Disciplinary Council will appoint a Disciplinary Senate (Senat) consisting of the president or the vicepresident (acting as a chairman) and four members of the Disciplinary Council. The investigator is part of such a Disciplinary Commission. If the Disciplinary Commission believes that there are sufficient grounds for disciplinary action, it will set a hearing. The bar prosecutor and the accused lawyer will be informed of such decision. If the Disciplinary Commission finds no grounds for disciplinary 39

Professional secrecy of lawyers in Europe

action, the proceedings will be closed and the lawyer, the bar prosecutor and the Attorney General (Oberstaatsanwalt) will be informed accordingly. The bar prosecutor and the Attorney General can appeal against any decision closing the proceedings to the Supreme Appellate and Disciplinary Council (Oberste Berufungs- und Disziplinarkommission). 28. If the Disciplinary Commission decides to take disciplinary action, the president of the Disciplinary Council assigns the file to a Disciplinary Senate (Senat), which is composed of five members of the Disciplinary Council. The chairman of the Disciplinary Senate appoints a rapporteur (Berichterstatter); schedules a date for the hearing; summons the accused lawyer, his/her representative and the witnesses; and informs the bar prosecutor. The lawyer subject to the investigation can be assisted by a lawyer of his/her choice and is entitled to present information and evidence in support of his/her defence. The lawyer, his/her representative and the bar prosecutor are entitled to access the records. The case is not heard in public but in camera and the accused lawyer can be accompanied by three persons of his/her trust (lawyers or candidate lawyers). The hearing begins with the bar prosecutor’s pleading to initiate the disciplinary procedure, including the grounds on which the decision is based. The rapporteur presents the facts of the case. The accused lawyer has the right to reply. Thereafter the taking of evidence takes place, which is followed by the final presentation of the accused lawyer and the bar prosecutor. The commission takes its decision in a non-public consultation without the accused lawyer being present. The accused lawyer, the bar prosecutor, the Attorney General and the bar association council receive a copy of the decision, together with a statement on the main grounds of the decision, by mail. 29. In case of a guilty verdict the following disciplinary sanctions can be imposed by the Disciplinary Commission: (i) written reprimand; (ii) fine, up to an amount of €45,000; (iii) suspension from the practice of law for a period of up to one year (this sanction may be imposed under probation of up to three years); and (iv) expulsion from the bar association. In the latter case the lawyer can reapply for registration with the bar association after three years, whereby his/her re-registration will be subject to his/her trustworthiness, which will be verified by the bar association in charge. The Disciplinary Commission can convict the accused lawyer without imposing any sanction, if it may be expected that the conviction will be enough to prevent the lawyer from committing other disciplinary offences. The Disciplinary Commission will pronounce an acquittal if it finds that no disciplinary offence has been committed or if such offence could not be proven 40

Austria

with the necessary degree of certainty. Decisions of the disciplinary tribunal can be appealed to the Supreme Appellate and Disciplinary Council. 30. An appeal against the decision can be filed with the Disciplinary Council by the bar prosecutor, the lawyer or the Attorney General (but not by the person who has filed the complaint) within four weeks of being informed thereof. The respective other persons entitled to appeal must be informed and can submit their observations to the appeal within one month. Afterwards the appeal will be submitted to the Supreme Appellate and Disciplinary Council. If the appeal is admissible and filed in time, an oral proceeding will take place. Upon request of the appellant the hearing can be heard in public. The Supreme Appellate and Disciplinary Council acquires full knowledge of the file and can therefore change the decision of the Disciplinary Council in any way. The Supreme Attorney General (Generalprokurator), the bar prosecutor, the lawyer and his/her representative, as well as the bar association council, are informed of decisions of the Supreme Appellate and Disciplinary Council by the Disciplinary Council. The bar association council is responsible for carrying out the decision. 31. An appeal against decisions of the Supreme Appellate and Disciplinary Council may be made on very limited grounds to the Constitutional Court. b

Criminal proceedings and sanctions

32. The lawyer’s professional duty of secrecy is not subject to sanctions under Austrian criminal law.33 c

Civil proceedings and damages

33. The Lawyers Code distinguishes between professional duties (Standespflichten) and disciplinary rules (Berufspflichten). A professional duty protects the lawyers’ profession (Stand der Rechtsanw¨alte) only. The consequences of violations of such obligations are only of a disciplinary nature. Disciplinary rules involve the protection of the client (in particular the lawyer–client relationship).34 Under professional duties, lawyers are obliged to conform to a particular behaviour in the interest of their clients. A lawyer shall observe such duties within the mandate he/she receives from his/her client. A violation of professional duties can lead to a claim by the client for damages, which has to be brought before the ordinary courts.35 33 O. Triffterer, C. Rosbaud and H. Hinterhofer, Salzburger Kommentar zum Strafgesetzbuch, 2007, S. 121 StGB mn 22. 34 F. Graf, Anwaltshaftung, Wirtschaftsverlag Dr Anton Orac, Vienna, 1991, 12. 35 Ibid., 11.

41

Professional secrecy of lawyers in Europe

The duty of professional secrecy pursuant to Section 9 of the Austrian Lawyers Code is considered such a professional duty. Thus a violation of the duty of professional secrecy by a lawyer may not only have disciplinary consequences but can also result in a claim by the client for damages.36

5

Duty to provide information to the authorities

A

Money laundering and terrorism 34. For Austrian lawyers, the Anti-Money Laundering (AML) and Countering the Financing of Terrorism (CFT) requirements and measures are governed by the Lawyers Act and the Disciplinary Statute for Lawyers and Candidate Lawyers. The Lawyers Act includes in particular in its Sections 8(a)–(f), 9, 9(a) and 12 the AML/CFT requirements and measures. In addition, there are statutory regulations set out in the Directives of the Austrian Bar Association, in the first place the Practice Guidelines for Lawyers, Guidelines for Supervision of Lawyers’ Duties and for Training of Candidate Lawyers. 35. The competent authority for the supervision of the legal profession, including AML/CFT requirements, is the relevant bar association council. According to Section 9(a) of the Lawyers Act the lawyer has to (i) establish and verify the identity of those persons whose money has been deposited in one of the lawyer’s escrow accounts, (ii) keep all the records in this regard and, if requested, (iii) provide the bank with information about the identity of such persons. The implementation of the third EU Money Laundering Directive by Federal law BGBl I 2007–111 in Sections 8(a)–(f) Lawyers Act has extended the disclosure and identification obligations as well as the obligations to keep relevant records of all operations that, due to their nature, are prone to be abused for money-laundering purposes (Geldw¨asche geneigte Gesch¨afte) or financing terrorism. Section 8(a)(1) of the Lawyers Act requires the lawyer to examine with special care all transactions which, due to their nature, are prone to be connected with money laundering or financing terrorism, in the planning or carrying out of which the lawyer participates and which concern the following: (i) buying or selling of real property or business entities; (ii) management of monies, securities or other assets, or the opening or management of bank, savings or securities accounts; and (iii) incorporation, operation or management of trust companies, corporations or similar structures such as trusts or foundations, 36 Prohaska-Marchried, Geheimnisschutz berufsm¨aßiger Parteienvertreter, 28.

42

Austria

including the procurement of the funds required for the incorporation, operation or management of companies. The same applies for the carrying out of finance or real-estate transactions in the name of a client. 36. Pursuant to Section 8(b)(1) of the Lawyers Act, lawyers have to undertake know-your-client measures, including identifying and verifying the client’s identity (S. 8(b), paragraph 1, Lawyers Act) in all cases listed in Section 8(a)(1) of the Lawyers Act: (i) upon establishing a business relationship on a continuing basis before the acceptance of the mandate, (ii) concerning all other transactions in which an amount of at least €15,000 is involved, or (iii) if the lawyer has a reasonable suspicion that the transaction serves the purpose of money laundering or financing terrorism. Pursuant to Section 8(c)(1) of the Lawyers Act, a lawyer has to notify the Federal Office of Criminal Investigations (Bundeskriminalamt) without delay if, in a case set out under Section 8(a)(1) of the Lawyers Act (see above), he/she has a reasonable suspicion that the transaction serves money laundering or financing terrorism. There is an exception to the foregoing. The lawyer is not obliged to report such suspicion if he/she learnt about certain facts in the course of rendering legal advice or in connection with the client’s representation before a court, a public authority or the public prosecutor, unless the lawyer comes to realise that the client evidently seeks legal advice for the purpose of money laundering or financing terrorism.37 Reporting to the Federal Office of Criminal Investigations is likewise mandatory if the client does not comply voluntarily with the requirement of disclosing their identity (S. 8(b)(7) Lawyers Act). 37. The introduction of Sections 8(a) et seq. of the Lawyers Act imposes a duty to act in contravention to the duty of professional secrecy and the client’s right to confidentiality. Due to the gravity of such an intrusion against confidentiality the lawyer has to examine with special diligence whether there is indeed a duty to disclose (Redepflicht). Ultimately, the lawyer has to assess the conflicting duties on a case-by-case basis and take a decision to the best of his/her conscience and knowledge.38 The decision is a very tough one as the lawyer must decide whether to report or to keep confidential and there is no compromise solution between these conflicting options. Pursuant to Section 9(5) of the Lawyers Act, bona fide notification to the Federal Office of Criminal Investigations according to Sections 8(b) and 8(c) of the Lawyers Act shall not be deemed a violation of the duty of confidentiality, 37 T. Schirmer and M. Uitz, Anti-money Laundering: International Law and Practice – Austria, John Wiley & Sons Ltd, 2007, 364. 38 H. Tades and K. Hoffmann, RAO, Manz, 2005, 27 ff.

43

Professional secrecy of lawyers in Europe

of a contractual secrecy undertaking or of confidentiality duties governed by administrative law and will not have negative legal consequences for the lawyer. If a lawyer has to make notification pursuant to Section 8(c)(1) of the Lawyers Act, he/she may not continue to carry out the transaction prior to notification to the Federal Office of Criminal Investigations. 38. Lawyers are entitled to request a decision from the Federal Office of Criminal Investigations as to whether or not there are any concerns regarding the immediate carrying out of the transaction. If the Federal Office of Criminal Investigations does not reply until the end of the following working day, the transaction may be carried out without delay. The Federal Office of Criminal Investigations is authorised to prohibit or to postpone the transaction (S. 8(c)(2) and (3) Lawyers Act). 39. Not only Austrian lawyers are subject to the Austrian statutes regarding money laundering. European lawyers, under the Federal Act on the Free Trade in Services and the Establishment of European Attorneys-at-Law in Austria (citizens of EU or EEA member states who are entitled to practise law in an EU/EEA jurisdiction other than Austria, including Switzerland) and who temporarily practise in Austria, are subject to the same rights and obligations as Austrian lawyers. Thus the Lawyers Act provisions, including its anti-money-laundering provisions, apply also to such foreign lawyers.

B

Duty to provide information pursuant to Section 286 Criminal Code 40. Austrian criminal law provides for another instance in which information subject to professional secrecy may have to be disclosed by a lawyer. Section 286(1) of the Criminal Code sanctions persons who fail (i) to prevent an imminent serious crime or the ongoing carrying out of a serious crime or (ii) to notify the law-enforcement agencies or the person threatened, provided that the serious crime could be prevented by such notice. Section 286(2)(3) of the Criminal Code provides that a person covered by paragraph 1 shall not be punished if, among other things, the prevention or notification would be in violation of a legally recognised duty of professional secrecy and the potential consequences of the violation of such duty outweigh the adverse consequences of the failure to prevent or notify. In such case, a lawyer will thus have to balance the adverse consequences of the commission of a serious crime and the violation of professional secrecy and take his/her decision accordingly.

C

Collective settlement of debts 41. There is no statutory release from confidentiality of the lawyer representing a debtor who becomes insolvent. Rather, the debtor is obliged to waive his lawyer’s secrecy obligation.

44

Austria

6

Treatment of a lawyer’s documents and correspondence in the context of judicial investigations 42. Pursuant to Austrian law an investigation and seizure of documents may only occur in penal proceedings, including anti-trust proceedings. If the documents in question are not located at the lawyer’s office or are otherwise not in his/her possession, no special rules apply even if the documents constitute attorney– client communication. They are not protected as there is no classical attorney– client privilege in Austria.

7

Search of a lawyer’s office 43. Section 119 of the Code of Criminal Procedure permits the search of premises to retrieve objects as well as persons in certain instances. In principle, everybody is obliged to hand over objects, including documents, covered by a search warrant. Otherwise a fine or imprisonment for contempt of court can be imposed on the possessor. However, Section 157(2) of the Code of Criminal Procedure provides that lawyers’ (and certain other professionals’) right to refuse to give evidence may not be circumvented through seizure and other measures.39 As a lawyer is not obliged to give evidence on information which was entrusted to him/her in his/her capacity as a lawyer by his/her client, it is not permitted to seize documents/records of the lawyer containing such confidential information. Thus records which contain information given to or advice sought from the lawyer are subject neither to a duty to hand over nor to seizure. However, only the information received from the client (and advice rendered) is protected; if a lawyer keeps other documents or papers of the client in his office, seizure is possible in order to avoid ‘immunisation’ of evidence by handing it over to a lawyer.40 Most recently the Austrian Supreme Court (Oberster Gerichtshof) confirmed the foregoing by holding that the search of premises of persons subject to a duty of confidentiality and not suspected of participation in the crime in question was not prohibited in general. In case of

39 S. 157 Code of Criminal Procedure (excerpt): (2) The right of the persons referred to in para. 1(2) to (5) to refuse to give evidence must not be circumvented under sanction of nullity, in particular not by way of confiscating and seizing documents or information stored on data carriers or interrogation of assistants or other persons who participate in a training related to the professional activity pursuant to para. 1(2) to (4). 40 J. Fish, Regulated Legal Professionals and Professional Privilege within the European Union, the European Economic Area and Switzerland, and Certain Other European Jurisdictions, Council of the Bars and Law Society of the European Union, 2004, 15–16.

45

Professional secrecy of lawyers in Europe

a suspicion that means of evidence not subject to professional secrecy may be found at such premises search and seizure thereof is permitted.41 44. To avoid confidential information becoming known to the authorities or to unauthorised third persons, and to facilitate the distinction between the documents that can and those that cannot be seized, a representative of the bar association to which the lawyer belongs must be present when a search takes place in his/her office. According to Section 23(a) of the Practice Guidelines for Lawyers, Guidelines for Supervision of Lawyers’ Duties and for Training of Candidate Lawyers, the lawyer has to insist that a representative of his/her bar association be present and participate to make sure that professional secrecy is preserved, in the event a search is conducted at his/her office or residence.42 In case of doubt, the requested documents (files) have to be sealed and submitted to the court for judicial review. The court decides what can be seized and what not. These rules do not apply in case of a search at the client’s residence regarding documents originating from the lawyer which the client keeps at his/her place. If, however, the lawyer himself/herself is strongly (dringend) suspected to have committed a severe crime, there is no prohibition of circumventing the right to refuse testimony in respect of information related to such crime (S. 145 Code of Criminal Procedure). But the same safeguards (presence of a representative of the bar association) have to be complied with to protect the confidentiality of unrelated client information.

8

Tapping of telephone conversations with a lawyer 45. In general, Section 136 of the Code of Criminal Procedure provides for the optical and acoustic surveillance of persons by means of technical devices. According to Section 136 of the Code of Criminal Procedure, the tapping of telephone conversations is permitted in cases where, among other things, there is a serious suspicion that the (tapped) suspect has committed a severe crime or if it is expected that the tapped person will be in contact with a person so under suspicion. Section 144(2) of the Code of Criminal Procedure,43 in conjunction with Section 157(2) of the Code of Criminal Procedure, provides that the right to refuse to give evidence as a witness in matters which become known to the 41 OGH 18.10.2012, 13 Os 66/12y, 67/12w, 68/12t, 69/12i 42 S. 23(a) of the Practice Guidelines for Lawyers, Guidelines for Supervision of Lawyers’ Duties and for Training of Candidate Lawyers, as in Feil and Wennig, Anwaltsrecht, 632. 43 S. 144 Code of Criminal Procedure: ‘(2) Ordering and implementation of investigative measures contained in this Section is prohibited to the extent the right of a person to refuse to testify pursuant to Section 157(1)(1–4) of the Code of Criminal Procedure would be circumvented.’

46

Austria

lawyer in his/her capacity as a lawyer must not be circumvented. Therefore, unless the lawyer is himself/herself strongly suspected of having committed a severe crime, tapping telephone conversations with a lawyer is flatly prohibited.44 If the lawyer himself/herself is strongly suspected of having committed a severe crime, the so-called Rechtsschutzbeauftragte (person mandated by the Minister of Justice to ensure compliance with fundamental rights) must authorise the tap in advance. The gathering of evidence in contravention of the foregoing is void. The Rechtsschutzbeauftragte has the duty to ensure that no tapped communication is entered into the record to the extent it is not in connection with the severe crime of which the lawyer is suspected. This implies even the destruction of such information.45

9

The lawyer as witness 46. With regard to the lawyer’s right/duty to testify, the Austrian Codes of Civil, Criminal and Administrative Procedure provide as follows. According to Section 321(1)(4) of the Code of Civil Procedure,46 a lawyer is entitled to refuse to give evidence in matters which have been confided to him/her in his/her capacity as a lawyer (by his/her client). Section 157(1)(2) of the Code of Criminal Procedure provides that a lawyer is entitled to refuse to give evidence in matters which become known to him/her in his/her capacity as a lawyer. This applies also to the staff of a lawyer and to candidate lawyers (S. 157(2) Code of Criminal Procedure). Such right of the lawyer and of his/her staff and candidate lawyers may not be circumvented. Circumvention will regularly lead to the nullity of investigative measures and to the destruction of the illegally gathered evidence. Pursuant to Section 49(2) of the Code of Administrative Procedure, a lawyer is entitled to refuse to give evidence with regard to matters which were entrusted to him/her in his/her capacity as the respective party’s representative.47 As the lawyer is obliged to maintain confidentiality, under statutory law and in contract, the lawyer has to take advantage of these provisions. It is the lawyer’s responsibility to determine which information is subject to professional secrecy (see above, no 13 et seq.). As a general rule, the 44 S. Reindl-Krauskopf, in Fuchs/Ratz, Wiener Kommentar zur Strafprozessordnung [Code of Criminal Procedure], S. 136, mn 33. 45 Ss. 136, 144, 145 and 147 Code of Criminal Procedure. 46 S. 321 Code of Civil Procedure (excerpt): (1) A witness may refuse to give evidence: 4. with regard to any matter which has been entrusted to the lawyer in his capacity as lawyer by his party; 47 S. 49 Code of Administrative Procedure more broadly refers to authorised professional representatives (berufsm¨aßige Parteienvertreter).

47

Professional secrecy of lawyers in Europe

respective bar association is not involved in such evaluation; however, if in doubt, the lawyer can turn to his bar association council and ask for an instruction (Weisung) on how to proceed in an individual case.48 As seen above in no 15, also in case of a waiver of the duty of professional secrecy by the client, the lawyer must evaluate whether disclosure is in the client’s best interest. 47. If the lawyer is called as a witness in a civil proceeding, he/she has to be informed about his/her right to refuse testimony. If he/she claims the right to refuse to testify, the court has to decide by order to what extent the refusal is justified. The order granting or denying the refusal to give evidence is subject to appeal.49 Failure to comply with the foregoing provisions can result in a ground to appeal the judgment. However, there is no express statutory nullity sanction for the use of testimony obtained in violation of the foregoing. If a lawyer is called as a witness in a criminal proceeding, he/she has to be informed by the police, the public prosecutor or the judge of his/her right to refuse to give evidence as soon as there are indications that the witness may have the right to refuse testimony. If testimony is given on confidential information in respect of which the lawyer would have had the right to refuse to give testimony and the lawyer did not expressly waive such right after being informed of such right, then the testimony is void and the record thereon shall be destroyed (S. 159 Code of Criminal Procedure). If a lawyer is called as a witness in an administrative proceeding, he/she shall be informed about his/her right to refuse testimony (S. 50 Code of Administrative Procedure), and if he/she wants to refuse to give evidence he/she must credibly show the grounds on which he/she bases the refusal (S. 49(4) Code of Administrative Procedure). In doing so it suffices that the lawyer witness persuades the author that the grounds for refusal to give evidence are present.50 The administrative body has to decide by order if the refusal to testify is justified or not and, if yes, to what extent. Such order is subject to appeal.51 If the administrative body is wrong in granting or denying a witness the right of refusing testimony, this can be considered a ground of appeal. However, the taking into account of testimony made in violation of the foregoing may not necessarily render the decision of the administrative authority which is based on such testimony null and void.52 48 Every lawyer or candidate lawyer may ask for an instruction from the Bar Association Council. In doing so, the lawyer or candidate lawyer can clarify whether his or her intended conduct will comply with the rules of ethics and deontology as interpreted by the Bar Association. 49 A. Frauenberger in Franz W. Fasching and A. Konecny, Zivilprozessgesetze [Code of Civil Procedure], 2nd ed., S. 321, mn 5. 50 J. Hengstschl¨ager and D. Leeb, AVG Allgemeines Verwaltungsverfahrensgesetz [Code of Administrative Procedure], S. 49, mn 3. 51 Hengstschl¨ager and Leeb, mn 5. 52 Hengstschl¨ager and Leeb, mn 6.

48

Austria

10

The lawyer and the press 48. Pursuant to Section 47 of the Practice Guidelines for Lawyers, Guidelines for Supervision of Lawyers’ Duties and for Training of Candidate Lawyers, with regard to the use of the media the lawyer has to respect (i) the interest of his/her client and (ii) the reputation and standing of the legal profession, as well as his/her professional duties.53 It is generally accepted that a lawyer may speak to the press in the interest of his/her client provided that he/she has obtained the respective client’s consent. The lawyer may disclose his/her having acted in a matter for a particular client only with such client’s consent.

11

Powers of the tax administration and other authorities 49. Lawyers shall keep their books in such a way that they can be used as evidence. As to invoices for legal fees, lawyers must not disclose any confidential information that is subject to a duty of confidentiality. During the course of audits taken by tax authorities in their personal tax matters, lawyers can be requested to provide information or ordered to submit documents. If, at the same time, the tax authorities conduct investigations that could be relevant to the taxation of a client, the duty of professional secrecy will apply and limit the permitted action of the tax authorities, which also may not circumvent professional secrecy.54

12

State security service 50. The civil and military security services are entitled to enter and search premises in certain instances of imminent danger. In such an event they shall avoid intrusions into statutorily protected professional secrecy obligations to the extent possible (S. 39 Security Police Act (Sicherheitspolizeigesetz) and S. 13 Military Authority Act (Milit¨arbefugnisgesetz)). Unless compliance therewith may thwart the purpose of the search, certain ancillary protective measures (e.g. presence of witnesses to the search) provided for in the Code of Criminal Procedure shall be taken. The above-mentioned statutes permit under certain very narrow circumstances the recording of sound and images. Such recording is permitted only to record speech or conduct made or set in public and in the presence of an investigator. However, there is no statutory provision providing for a duty to respect professional secrecy obligations in that connection. 53 Csoklich and Scheuba, Standesrecht der Rechtsanw¨alte, 78. 54 Prohaska-Marchried, Geheimnisschutz berufsm¨aßiger Parteienvertreter, 139.

49

Professional secrecy of lawyers in Europe

Both under the Security Police Act and under the Military Authority Act there is also a so-called Rechtsschutzbeauftragter (person mandated by the Minister of the Interior and the Minister of Defence and Sports, respectively, to ensure compliance with fundamental rights). The Rechtsschutzbeauftragte must be informed of any recording, preferably in advance, and is entrusted with the task of observing compliance of such recording with the law. It can be expected that the Rechtsschutzbeauftragte will see to it that statutorily protected professional secrecy obligations, such as those of lawyers, are respected upon any such recording.

50

4 Belgium dirk van gerven Past President of the Brussels Bar (Dutch-speaking section)

Preliminary note 52 1 Scope of and limitations on professional secrecy 52 A Statutory basis and implications 52 B Scope 54 C Persons subject to the duty of professional secrecy 56 D Limitations and derogations 58 a Limitations 58 b Derogations 61 E Law firms 61 F Legal assistants and staff 62 G External service providers 62 H Multidisciplinary associations 62 2 History 63 3 Supervision 64 A The bar associations 64 B The courts 64 4 Sanctions 64 A Proceedings and sanctions 64 a Disciplinary proceedings and sanctions 64 b Criminal proceedings and sanctions 66 c Civil proceedings and damages 66 B Relationship between criminal sanctions and disciplinary sanctions 66 5 Duty to provide information to the authorities 67 A Money laundering and terrorism 67 B Collective settlement of debts 68 C Sexual abuse 68 6 Treatment of a lawyer’s documents and correspondence in the context of judicial investigations 69 7 Search of a lawyer’s office 69 8 Tapping of telephone conversations with a lawyer 70 9 The lawyer as witness 70

51

Professional secrecy of lawyers in Europe

10 The lawyer and the press 71 11 Powers of the tax administration and other authorities 12 State security service 72

71

Preliminary note 1. In Belgium, lawyers who are admitted to the Bar are subject to a duty of professional secrecy (also known as the attorney–client privilege). Only lawyers who are admitted to the Bar are entitled to appear in court (with a few exceptions). Such lawyers are self-employed, although they can be partners or associates in a law firm. They must comply with the Bar’s code of ethics. In Belgium, there is a bar association in each judicial district (arrondissement judiciaire/gerechtelijk arrondissement), which comprises a court of first instance, a commercial court and a labour court. In total, Belgium has twenty-seven bar associations, each of which is presided over by a bˆatonnier or stafhouder (hereinafter referred to as the ‘president of the bar association’). Lawyers who work for a company (in-house counsel), the state or a public organisation are not members of the Bar. They can, however, join the Institute of Company Lawyers (Institut des juristes d’entreprise/Instituut voor bedrijfsjuristen), in which case they are authorised to use the title ‘company lawyer’. Written legal advice prepared by company lawyers is deemed confidential (confidential/confidentieel) by law. This chapter focuses on the professional secrecy, or attorney–client privilege, of lawyers who belong to the Bar. Unless indicated otherwise, for the purposes of this chapter, the term ‘lawyer’ refers to a member of the Bar (avocat/advocaat).

1

Scope of and limitations on professional secrecy

A

Statutory basis and implications 2. There is no statutory basis in Belgium for the attorney–client privilege. Article 458 of the Criminal Code of 8 June 1867 imposes a duty of professional secrecy on doctors and other medical professionals and ‘those who, pursuant to their status or profession, gain knowledge of secrets which are entrusted to them’.1 Violation of this duty can be sanctioned by a prison term and/or a criminal fine, unless disclosure is made before a court of law or 1 This code was introduced after the independence of Belgium in 1830 and replaced the Napoleonic Criminal Code of 22 February 1810, which contained a similar provision (Art. 378).

52

Belgium

parliamentary inquiry committee or pursuant to a statutory duty. In the parliamentary debate, it was assumed that this provision also applies to lawyers, who often receive confidential information from their clients.2 This provision does not require lawyers not to disclose confidential information entrusted to them by their clients. It only sanctions them when they do so other than before a court of law or parliamentary committee or pursuant to a statutory duty to persons defined by law. When called to testify before a court, lawyers should exercise discretion and determine if disclosure is truly warranted. A court or parliamentary committee cannot compel a lawyer to disclose confidential information.3 Article 458 provides for an additional exception, i.e. a holder of secrets can speak if the law expressly provides for an obligation to do so. However, this cannot apply to lawyers as the law cannot force them to speak (see, however, no 33 of this chapter). Indeed, a law requiring lawyers to disclose information entrusted to them in confidence by clients for the defence of their case would be in violation of the European Convention on Human Rights and should therefore be set aside. Only in limited cases where a higher value is at stake can the attorney–client privilege not be raised to refuse to disclose information (see no 13 below). As mentioned above, the Criminal Code does not prohibit in all cases the disclosure by lawyers of information revealed by their clients in confidence. It only sanctions the disclosure of such information outside a court of law. When called to testify, the lawyer must determine whether the information in question is protected by the attorney–client privilege.4 If so, the lawyer is not entitled to disclose it. If the lawyer does so nonetheless, he will be deemed to have violated his duty of professional secrecy (i.e. to have breached the attorney–client privilege) and will be subject to disciplinary sanctions. Under these circumstances, disclosure is only allowed with the consent of the president of the bar association. 3. Pursuant to a decision of the Belgian Constitutional Court of 23 January 2008, the lawyer’s duty of professional secrecy is based directly on Articles 6 and 8 of the European Convention on Human Rights (ECHR) (formerly the Convention for the Protection of Human Rights and Fundamental Freedoms).5 In this decision, the Constitutional Court held that requiring lawyers to disclose to money-laundering authorities information entrusted by their clients violates the attorney–client privilege, the equal-treatment clause of the Belgian 2 A. Nypels, L´egislation criminelle de la Belgique, Brussels, III, 1872, 294. This is confirmed by settled case law, including that of the Supreme Court (Cass. 27 March 1905, Pas. 1905, I, 176; Cass. 11 February 1946, Pas. 1946, I, 66) and more recent parliamentary discussions (in relation to a change of Article 458 by the law of 30 June 1996 (Pasin. 1996, 1413)). 3 This is confirmed during the parliamentary debate in relation to the law of 30 June 1996 modifying Art. 458 of the Criminal Code (Pasin. 1996, 1413–14). 4 Cass. 23 September 1986, AC 1986–7, 96. 5 JLMB 2008, 180.

53

Professional secrecy of lawyers in Europe

Constitution, and the above-mentioned provisions of the ECHR (see no 31 below).6 Article 6 ECHR guarantees the right to legal assistance. However, this right can only be effective if the client can be sure that the information provided to his or her lawyer will not be disclosed by the latter to third parties and used against him or her. Article 8 guarantees the right to respect for one’s private and family life, home and correspondence. Such protection extends to correspondence between a client and his or her lawyer as well as the latter’s colleagues (see Chapter 1, no 11 of this book). 4. Professional secrecy is intended to protect the client. In Belgium, a properly functioning judicial system is considered a matter of public policy and necessary to maintain the peace. Members of the public should be able to call upon the services of a lawyer without fear of disclosure of information provided in confidence.7 5. An obligation to keep information provided by the client confidential is implied in the client’s contract with the lawyer. Disclosing information without the client’s consent therefore constitutes a breach of contract. A lawyer thus cannot accept a case to which he was previously a party as he could have knowledge of facts about which he may later be called to testify. Indeed, a lawyer cannot refuse to testify about information received outside the context of handling a particular case for a client.8 Such information is not protected by the attorney–client privilege. 6. Any legal action taken in violation of the attorney–client privilege will be deemed null and void. Therefore criminal prosecution on the basis of information protected by the attorney–client privilege is not possible.9 In civil cases, the court cannot accept privileged information into evidence. Any such information must be discarded. Further, taxes cannot be imposed on the basis of information disclosed in violation of the attorney–client privilege,10 and protected correspondence cannot be presented to the court.11

B

Scope 7. Professional secrecy (or the attorney–client privilege) covers all information, whether written or oral, provided by the client to his or her lawyer in order 6 7 8 9

See also Constitutional Court, 3 May 2000, TBBR 2002, 452. Brussels Court of Appeal, 18 June 1974, Pas. 1975, II, 42. Court of Cassation, 27 March 1905, Pas. 1905, 176. Court of Cassation, 29 May 1986, Pas. 1986, I, 1194; 14 June 1965, Pas. 1965, I, 1102; Brussels Court of Appeal, 18 June 1974, Pas. 1975, II, 42. 10 Ghent Court of Appeal, 13 May 1977, JDF 1977, 286. 11 Li`ege Court of Appeal, 13 January 1988, JDF 1990, 222.

54

Belgium

to prepare for litigation relating to the client’s rights and obligations or in the course of soliciting advice regarding the client’s legal rights and obligations, as well as all information which comes to the lawyer’s attention in this context, including information provided by the opposing party or a third party. It is generally accepted that professional secrecy covers all information provided to the lawyer in order to enable the latter to defend his or her client in court. The Constitutional Court extended this to legal assistance provided outside the scope of litigation, if the assistance is intended to allow the client to avoid litigation. The Court held that advice on the legal aspects of the steps in a transaction, information on the law applicable to the client’s personal situation and advice on a transaction the client proposes to carry out are all protected by the attorney–client privilege.12 Consequently, any information the lawyer receives (i) in the course of defending or representing a client before a court, including an administrative court or committee entitled to determine the rights and obligations of individuals, and (ii) in the context of ascertaining the client’s legal position, including when advising the client on the preparation or performance of a transaction, is covered by the attorney–client privilege. 8. Some legal scholars argue that professional secrecy is strictly limited to information obtained in the practice of law and that any information gleaned outside the exercise of the legal profession (e.g. when the lawyer acts as a company director, a trustee in bankruptcy or a lobbyist) is thus not protected. In this regard, it may be clearer to distinguish between assistance provided by a lawyer in order to help the client determine legal rights or obligations and other activities carried out by a lawyer.13 For instance, when a lawyer serves as a director, liquidator or court-appointed trustee, the lawyer is not acting on behalf of or providing assistance to a client.14 Information obtained from lobbying activities is, of course, only privileged to the extent such activities are intended to define or enhance the legal position of a client. Indeed, lobbying on behalf of a client could also constitute the provision of assistance to the client in defining a legal position or avoiding litigation. In any event, correspondence or other information which the lawyer sends or receives when serving as a liquidator, director or trustee in bankruptcy, or when fulfilling a court appointment, is not protected by the attorney–client privilege.15 Furthermore, any funds a lawyer receives outside the exercise of 12 Constitutional Court, 23 January 2008, JLMB 2008, 180, note by F. Abu Dalu. This is in line with Art. 23 of Directive 2005/60/EC of 26 October 2005 on the prevention of the use of the financial system for the purpose of money laundering and financing terrorism (see Chapter 1, no 31 of this book). 13 See Court of Cassation, 13 June 1963, Pas. 1963, I, 1079. 14 Court of Cassation, 13 June 1963, Pas. 1963, I, 1079. 15 Li`ege Court of Appeal, 4 May 1961, Jur. Li`ege 1962, 233.

55

Professional secrecy of lawyers in Europe

the legal profession (even if received from a client) are not protected, meaning that the lawyer may be asked to account for the use or origin of these funds.16 9. In general, any correspondence between a client and his or her lawyer is covered by professional secrecy and thus privileged.17 Furthermore, any enclosures in such correspondence,18 advice the lawyer prepares on the client’s rights and obligations, personal notes made by the lawyer in the case,19 statements of fees and disbursements and breakdowns of services sent along with such statements are also covered by the attorney–client privilege. In sum, the attorney–client privilege covers, in general, any information the lawyer receives from a client as well as any information received from the opposing party, opposing counsel or any third party.

C

Persons subject to the duty of professional secrecy 10. The lawyer’s duty of professional secrecy is based on the law and is also a contractual obligation. Furthermore, this duty is enshrined in the ethics code of the legal profession. Consequently, any breach of the duty of professional secrecy constitutes a violation of the ethical rules and will result in the imposition of disciplinary sanctions (see no 26 below). The attorney–client privilege must be respected by the court, the public prosecutor’s office and any party to the proceedings.20 In general, any information disclosed by someone who is subject to the attorney–client privilege may not be relied upon in order to determine the rights and obligations of the party benefiting from this privilege. For example, the director of a prison is not entitled to read correspondence between a lawyer and an inmate. In case of doubt, the correspondence should be submitted to the president of the Bar for verification.21 11. As stated above, the general consensus among legal scholars is that professional secrecy (or the attorney–client privilege) is not only in the interest of the client but also of society as a whole and is a matter of public policy. Indeed, since the attorney–client privilege is considered a matter of public policy, a party to proceedings can object to the use or disclosure of privileged information.22 In other words, a client could be prohibited from allowing his 16 Court of Cassation, 13 June 1963, Pas. 1963, I, 1079. In this case, the lawyer agreed to receive, in accordance with a power of attorney signed by the client, the sales proceeds from real property owned by the client. 17 Court of Cassation, 9 May 2007, JT 2007, 526, note by K. Kennes. 18 Brussels Court of Appeal, 25 June 2001, JT 2001, 735. 19 Brussels Court of Appeal, 25 June 2001, JT 2001, 735; Brussels Criminal Court, 20 February 1998, JT 1998, 361, note by P. Lambert. 20 Brussels Criminal Court, 20 February 1998, JT 1998, 361, note by P. Lambert. 21 Court of Cassation, 12 May 1977, Pas. 1977, I, 929. 22 C. van Reepinghen, ‘Remarques sur le secret professionel de l’avocat’, JT 1959, 37.

56

Belgium

or her lawyer to disclose privileged information to a court if this would not be in his or her interest. Finding otherwise, it is argued, would mean that the court could infer an admission of guilt from the refusal by a party to produce privileged documents. The above conclusion does not seem to be in line with the case law of the Belgian Supreme Court, which has held that citing public policy, which prevails over the client’s individual interests, to refuse to allow a client to produce privileged correspondence exchanged with his lawyer violates the client’s dueprocess rights.23 This decision has been criticised in the legal literature, but has been followed by recent case law.24 In a recent decision, the Brussels Court of Appeal stated that the client is only entitled to disclose privileged correspondence if disclosure is necessary for his or her defence.25 This is not the case when a party claiming damages in criminal proceedings produces correspondence from his or her lawyer that contains confidential settlement offers made by the lawyer to the accused. The appellate court held that, under these circumstances, producing the correspondence would jeopardise the right of the accused to a fair trial and that considerations of public policy should prevail to prevent disclosure. The above-mentioned Supreme Court decision would seem to imply that considerations of public policy cannot be raised to object to the disclosure of privileged information by a client in order to ensure his or her defence.26 Indeed, the attorney–client privilege is intended to protect the client’s interest and as such does not need to be tempered by concerns of public policy. It is a fundamental right provided for by the ECHR as part of the right to a fair trial and the right to privacy (see above). True, the court cannot rely on privileged information which is disclosed without the client’s consent. However, the client should be entitled to disclose privileged information and instruct his or her 23 Court of Cassation, 12 November 1997, JT 1998, 361. See also, in favour of the client’s right to disclose privileged information, Brussels Court of First Instance, 25 February 2005, JLMB 2005, 699, note by P. Henry; in this case the court asked a party to produce its lawyer’s fee statement in order to determine the damages which could be claimed from the other party and decided that the client could do so since it was not bound by a duty of professional secrecy. Likewise, the Court of Justice of the European Union ruled on 18 May 1982 (JT 1983, 41, note by P. Lambert) that a client can validly disclose correspondence with his or her lawyer notwithstanding the duty of professional secrecy; this decision relates to the correspondence of English solicitors of an English company and reflects the prevailing opinion in English law (see Chapter 1, no 23, and Chapter 33, no 6). 24 Mons Court of Appeal, 16 February 2004, JT 2005, 582; Ghent Court of Appeal, 16 December 1998, RDJP 1999, 270; Brussels Court of First Instance, 9 January 2002, JT 2002, 692. 25 Brussels Court of Appeal, 26 January 2011, JLMB 2011, 428, note by P. Henry, who is of the opinion that this decision is too broad and that disclosure should be limited. 26 Compare with Brussels Criminal Court, 20 February 1998, JT 1998, 361. In this case, the court refused to allow a party to produce privileged letters which could be used against the accused.

57

Professional secrecy of lawyers in Europe

lawyers to do so. Otherwise, the client would be denied the right to a fair trial, which includes the right to raise any defence. Only when disclosure would jeopardise the attorney–client privilege of another party is it not allowed.

D

Limitations and derogations 12. The attorney–client privilege is subject to a number of exceptions and derogations. If an exception applies, the lawyer is obliged to disclose the information that falls under the exception. In the event of derogation, the lawyer can decide whether to disclose the information in question. These exceptions and derogations must, of course, be interpreted narrowly as they constitute limitations on due process and the right to a fair trial in that any information so disclosed may be used against the client in court. In a decision of 14 June 2006, the Constitutional Court mentioned two exceptions to the attorney–client privilege.27 The necessity (or greater need) exception refers to situations in which the lawyer is compelled to disclose privileged information. Further, the attorney–client privilege can be waived in the interest of a higher value.

a

Limitations

13. It is generally accepted that, in certain cases of exceptional need, a lawyer must disclose privileged information. In these cases, the attorney–client privilege is trumped by a higher value. This is typically the case when the life or health of a person is at stake. The danger must be serious, specific and imminent.28 If in doubt, the lawyer will refer the matter to the president of the bar association, who shall decide whether the circumstances warrant disclosure. In this case, the information may be disclosed only to specified individuals. For instance, this exception may apply when a lawyer is informed that a crime will be committed or receives, in the context of divorce proceedings, information about the whereabouts of children who are in need of immediate medical assistance. Other higher values may also call for disclosure. Again, in this case, disclosure must not go beyond the information required to ensure protection of the higher value. The Constitutional Court has held that the prevention of money laundering is not a value which prevails over the attorney–client privilege, thereby allowing lawyers to systematically disclose information received from clients when there is a suspicion that a client is involved in money laundering. Indeed, the attorney–client privilege prevents lawyers from disclosing information received in the context of defending and representing clients and providing legal 27 JLMB 2006, 1129, note by J. Wildemeersch. 28 Court of Cassation, 13 May 1987, JLMB 1987, 1165, note by Y. Hannequart.

58

Belgium

advice.29 Likewise, the need to have complete information about a debtor in the context of restructuring proceedings does not take precedence over the attorney–client privilege. Consequently, a debtor’s lawyer cannot be compelled to disclose information about the composition and location of his or her client’s assets.30 Finally, the need to safeguard the reputation of a person does not take precedence over the attorney–client privilege.31 14. Lawyers may not hide behind the attorney–client privilege in order to cover up a crime they have committed.32 A letter constituting a crime, such as forgery, is not protected by the attorney–client privilege and can be admitted in court.33 However, an admission of a crime or a reference to a tool used to commit a crime does not constitute the crime itself and is therefore privileged.34 In order to allow the disclosure of correspondence prepared by a lawyer which constitutes forgery or another criminal offence, the criminal proceedings must (also) be brought against the lawyer.35 If a letter constitutes forgery, it should be disclosed in the criminal proceedings. The law does not state who is competent to decide whether a letter constitutes forgery. In practice, the investigating magistrate entrusted with examining the complaint makes this decision, which is subject to review by the pre-trial chamber (chambre du conseil/raadkamer) and afterwards the court before which the criminal proceedings are brought. Some scholars argue that the investigating magistrate is not the best person to take this decision as he or she will not be able to set aside the information if he or she subsequently learns, upon further investigation, that the letter is covered by the attorney–client privilege. Traditionally, correspondence with and notes from lawyers that are found in a police investigation are kept in a sealed envelope and reviewed afterwards by the president of the bar association, who determines which information is privileged (see no 34 below). In proceedings against a lawyer, where the correspondence forms the object of the investigation, one alternative could be to have the correspondence submitted to the president of the criminal court and the president of the bar association, who together will decide whether the letters can be disclosed to the investigating magistrate. If the letters constitute forgery or another criminal offence, they are admissible in court as evidence against the lawyer and any other party who took part in the offence, regardless of whether this person is a client.

29 30 31 32 33 34 35

Constitutional Court, 23 January 2008, JLMB 2008, 180, note by F. Abu Dalu. Constitutional Court, 3 May 2000, RGDCB 2002, 452, note by A. Thilly. Antwerp Court of Appeal, 14 June 2001, Rev.Dr.Sant´e 2004–5, 128. Court of Cassation, 5 February 1985, Pas. 1985, I, 670. Li`ege Court of Appeal, 14 December 1988, JT 1989, 256. Brussels Criminal Court, 20 February 1998, JT 1998, 361. Brussels Criminal Court, 20 February 1998, JT 1998, 361.

59

Professional secrecy of lawyers in Europe

15. A lawyer cannot refuse to disclose information to the bar authorities, in particular the president of the bar association. The latter must indeed be able to assess the actions of the members of the Bar in order to determine whether they comply with the code of ethics, and must be provided with full information in order to decide whether to initiate disciplinary proceedings, as the case may be. Lawyers are obliged to be truthful to the bar authorities and disclose all information requested, including privileged information.36 The submission by the president of a court of appeal to the president of a bar association of a lawyer’s letters which had been provided to the court by the client has been found not to constitute a violation of the attorney– client privilege, even when the letters were used by the president in subsequent disciplinary proceedings.37 If privileged information is disclosed in disciplinary proceedings in the presence of the Attorney General (procureur g´en´eral/procureur-generaal), the latter is not entitled to use this information in court against the lawyer’s clients.38 Furthermore, disciplinary proceedings against the lawyer may not be mentioned in criminal, civil or administrative proceedings (Art. 477 Judicial Code). Like the president of the bar association and the members of the disciplinary tribunal, the Attorney General is bound by a duty of confidentiality with respect to information disclosed by a lawyer in order to allow the disciplinary tribunal to take a decision with full knowledge of the facts. 16. In the event of a liability action brought by a client against his or her lawyer, the lawyer may disclose privileged information for the purpose of assessing the merits of the claim. This follows from the lawyer’s right to a fair trial. Such proceedings must be kept separate from any other proceedings to which the client is a party in order to avoid the privileged information being used for purposes other than determining whether the lawyer is in breach of contract. Furthermore, the lawyer should only produce information to the extent necessary in order to defend him- or herself against the claim.39 In sum, when a lawyer must defend himself or herself against claims by a client or third party and the disclosure of privileged information is necessary in order to do so, the lawyer should be allowed to produce such information, but only to the extent necessary to defend his or her interests in court.40 In this case, limited disclosure is necessary in order to guarantee the lawyer a fair trial.

36 Court of Cassation, 3 June 1976, Pas. 1976, I, 1070; 12 May 1977, Pas. 1977, I, 929; 29 May 1986, Pas. 1986, I, 1194. 37 Ghent Court of Appeal, 30 November 1961, Pas. 1963, II, 127. 38 Court of Cassation, 29 May 1986, Pas. 1986, I, 1194; 3 June 1976, Pas. 1976, I, 1070. 39 Mons Court of Appeal, 14 May 2009, JLMB 2010, 1423. 40 Brussels Criminal Court, 29 March 2001, JT 2001, 617, note by P. Lambert.

60

Belgium

b

Derogations

17. The client cannot release the lawyer from his or her obligation to keep information entrusted by the client confidential.41 The lawyer can only disclose such information in court, provided the lawyer considers it appropriate to do so after a reasoned assessment. In this respect, the lawyer cannot disclose privileged information if this would be against the client’s interests.42 However, it may be difficult to reconcile this rule with recent case law, finding that the client is entitled to disclose confidential information if it is necessary to do so for the client’s defence (see no 11 above). It seems that the lawyer cannot refuse to disclose confidential information if instructed to do so by the client. 18. The Criminal Code states that a lawyer is not bound by professional secrecy when testifying in court (see no 37 below). As stated above, this means that the lawyer cannot be criminally prosecuted for the disclosure of privileged information in court. However, this provision does not release the lawyer from his or her professional obligation to keep information received from the client confidential. Breaching this obligation constitutes negligence, for which the lawyer can be held liable. Any such information disclosed to the court cannot be used by the latter without the client’s consent (see above). In civil proceedings, the Judicial Code expressly provides that the attorney– client privilege is a valid reason to refuse to testify (Art. 929 Judicial Code). The Code of Criminal Procedure does not provide for the same exception in criminal proceedings (see Arts. 157, 158, 189 and 355). However, forcing lawyers to disclose privileged information is contrary to Article 6 ECHR, which prevails over the Belgian rules. If the client agrees that the lawyer can disclose privileged information in order to allow the lawyer to testify, for example, against another lawyer, the lawyer will then have to decide whether to disclose the information. In other words, the lawyer will have to assess whether disclosure would harm the interests of the client. If this is not the case, the lawyer must testify.43 If this is the case, the lawyer should weigh the interests at stake and only disclose the information if doing so would, on balance, help the client more than the lawyer’s silence (see also no 17 above).

E

Law firms 19. Lawyers who work in a law firm tend to share privileged information. It is generally accepted that no restrictions apply to this type of sharing of 41 Court of Cassation, 23 September 1986, AC 1986, 26. 42 A. Braun and F. Moreau, La profession d’avocat, Brussels, 1985, 127–8. 43 Brussels Court of Appeal, 16 December 1957, JT 1958, 90, confirmed by the Court of Cassation, 23 June 1958, Pas. 1958, I, 1181.

61

Professional secrecy of lawyers in Europe

information. When a client engages the services of a law firm, all the lawyers of the firm are deemed engaged. The firm can ask any of its lawyers to handle the case. The attorney–client privilege applies to all information provided by the client to the lawyers of the firm, regardless of whether they are partners or associates. In all cases, they work on behalf of the firm. The situation is different when lawyers work in a cost-sharing structure. In this case, the lawyers do not practise law jointly; they only share costs and office space. In this case, they need to keep separate files. A client of one lawyer is not a client of the others. The attorney–client privilege is therefore limited to information shared with the lawyer who represents the client and does not extend to the other lawyers who belong to the cost-sharing structure.

F

Legal assistants and staff 20. Law firms employ secretaries, support staff and paralegals. In Belgium, these employees are not supposed to practise law. The firm cannot offer their services as lawyers, since these individuals are not admitted to the Bar. Even though they are not lawyers, the information shared with these individuals, with the intention that it be passed on to the lawyer handling the case, is covered by the attorney–client privilege. Indeed, they are considered representatives of the firm for which they work.

G

External service providers 21. More and more law firms are outsourcing services such as secretarial work, the review of documents written in a foreign language, and even legal work such as due diligence or research. If such work is done by an outside lawyer, no difficulty should arise, and the duty of professional secrecy extends to this lawyer. In addition, when confidential documents are sent outside the firm to nonlawyers, professional secrecy continues to apply. These persons work on behalf of the firm, within the limits of their particular assignment. If the confidential information inadvertently comes into the hands of a third party, the court may not allow this information to be presented into evidence.

H

Multidisciplinary associations 22. If the client agrees, a lawyer is entitled to co-operate, on a specific matter, with a professional who is not a lawyer, provided the lawyer ensures respect for professional secrecy. This does not mean that the lawyer cannot share information with the non-lawyer; information can be shared but only with the client’s consent and to the extent necessary to safeguard the client’s interests.

62

Belgium

Lawyers cannot form a professional association with non-lawyers. They are, however, allowed to participate in law firms that form a partnership abroad with non-lawyers, to the extent the foreign lawyers undertake to comply with the legal and ethical rules applicable to lawyers in Belgium. Cost associations with non-lawyers are acceptable, but should not result in the lawyers and non-lawyers working together on cases as part of the same association.44 In any event, privileged information shared by lawyers with non-lawyers in order to prepare the client’s case should remain protected. However, there is no case law confirming this position.

2

History 23. Professional secrecy for lawyers (attorney–client privilege) is not a new concept. Although the legal profession is not expressly mentioned in the Napoleonic Criminal Code of 1810, it was immediately accepted that lawyers were also obliged to keep information obtained from their clients confidential (see no 2 above). This code remained applicable after Belgian independence in 1830. The Criminal Code of 1867, which replaced the 1810 code, retained an obligation to maintain attorney–client privilege and sanctioned any violation with fines and imprisonment (see former Art. 378, today Art. 458). This code introduced a new provision, however, stating that the holder of a secret cannot be forced to disclose the same. During the parliamentary debate, it was stressed that lawyers should have freedom to take decisions in accordance with their conscience. This provision is still in force unchanged, except for the addition, by way of the Act of 30 June 1996, of a clause that criminal sanctions do not apply either to testimony in court or before a parliamentary inquiry committee. The concept of professional secrecy has not changed much over the years, and the courts have tried to apply it to different situations. However, it remains a difficult concept, which is coming under increasing pressure by movements to enhance transparency in the interests of society as a whole. The highest courts in Belgium, especially the Constitutional Court, are the gatekeepers of professional secrecy in a society in which human rights are considered the cornerstone of a democratic state.

44 It is unclear under Belgian law which types of co-operation amongst lawyers and other professionals such as auditors can be prohibited by the bar association. The Supreme Court has held that any prohibition should be proportional to its purpose, i.e. safeguarding the independence of lawyers in the interest of their clients and the duty of professional secrecy. Court of Cassation, 25 September 2003, AC 2003, 749.

63

Professional secrecy of lawyers in Europe

3

Supervision

A

The bar associations 24. A lawyer who belongs to the Bar is an independent legal professional who is free to determine how best to defend his or her clients and protect their rights and interests. The law provides that lawyers should exercise their profession in such a way as to uphold the law and the truth (Art. 444 Judicial Code). They can accept and defend any case they consider in all honesty to be fair (Art. 429 Judicial Code). Lawyers are subject to the authority of the bar association, which, through the president, oversees compliance with the code of ethics of the legal profession. The bar authorities cannot direct or instruct lawyers in the handling of their cases. Their authority is limited to the imposition of disciplinary sanctions if a lawyer breaches his or her ethical duties. If the president finds that a lawyer has violated the code of ethics, disciplinary proceedings will be initiated before a disciplinary body (see below). The attorney–client privilege is also an ethical duty, the violation of which will result in the imposition of disciplinary sanctions.

B

The courts 25. Lawyers must, of course, abide by the law. The civil courts have jurisdiction to hear any claim for professional liability brought against a lawyer by a client. The criminal courts have jurisdiction over crimes committed by lawyers in the exercise of their profession. No special rules apply in this respect to lawyers.

4

Sanctions

A

Proceedings and sanctions

a

Disciplinary proceedings and sanctions

26. The president of the bar association receives and examines complaints against the association’s members. The complaint should be in writing. The president can also start proceedings at his or her own initiative or further to a complaint by the attorney general of the court of appeal (procureurg´en´eral/procureur-generaal). The proceedings are conducted in the language of the relevant bar association. The president of the bar association leads the investigation or appoints an investigator. The lawyer under investigation must be given an opportunity to be heard, is entitled to produce information and evidence in support of his or her defence, and can be assisted by a lawyer of his or her choosing (without this lawyer being entitled to represent him or her). If, after investigation, the president is of the opinion that there are sufficient grounds for disciplinary sanctions, the case will be referred to the president 64

Belgium

of the disciplinary tribunal and the lawyer will be informed of this decision. If the president finds that the complaint is inadmissible or unfounded, the bar association and the lawyer will be informed accordingly. In this case, the bar association can ask the president of the disciplinary tribunal to review the decision within a period of three months. If a decision is not taken within six months of the filing of a complaint, both the lawyer and the bar association can petition the president of the disciplinary tribunal to take a decision. If the president of the disciplinary tribunal finds that the president of the bar association is not proceeding with the case, the president may take over the investigation. Upon termination of the investigation, the president can decide either to submit the case to the disciplinary tribunal or to dismiss the complaint for lack of evidence. All parties are informed of this decision, which cannot be appealed (Art. 458 Judicial Code). The disciplinary tribunal hears the case in public, except when publicpolicy considerations, the interests of minors, the lawyer’s right to privacy or other special circumstances require that the hearing be conducted behind closed doors. The bar association is heard and, if required, can be questioned by the lawyer during the hearing. The president of the bar association or the investigator is also heard (Art. 459 Judicial Code). The following disciplinary sanctions can be imposed by the disciplinary body: (i) a warning, (ii) a reprimand, (iii) a suspension from the practice of law for a period of up to one year or (iv) expulsion from the Bar. Two suspensions may result in the expulsion of the lawyer. A reprimand and suspension can be accompanied by a prohibition on voting in elections for the president and council of the bar association, or on standing in such elections, for periods of up to three or five years, respectively. The disciplinary tribunal determines the manner of publication of the disciplinary sanction; a decision to suspend or expel a lawyer must be made public to other lawyers by mention in a special registry. The disciplinary tribunal must justify its decision (Art. 460 Judicial Code). The lawyer can object to the decision within fifteen days of being informed thereof (Art. 462 Judicial Code). 27. Decisions of the disciplinary tribunal can be appealed to the disciplinary board of appeal. An appeal can be filed with the president of the disciplinary board of appeal by the president of the bar association, the lawyer or the attorney general of the court of appeal within fifteen days of being informed thereof. If one party files an appeal, the other parties can also do so within one month of the first appeal (Art. 463 Judicial Code). The attorney general of the court of appeal attends as the public prosecutor (Art. 465 Judicial Code). The lawyer can object to a decision rendered by default within the same period applicable to the appeal (Art. 468 Judicial Code). An appeal on legal grounds is possible to the Supreme Court, within one month of notification of the decision. If the Supreme Court sets aside the 65

Professional secrecy of lawyers in Europe

decision, it will remand the case to the disciplinary board of appeal, but with a different composition (Art. 468 Judicial Code). b

Criminal proceedings and sanctions

28. Violation of the attorney–client privilege is punishable by criminal sanctions, i.e. a prison term of up to six months and a fine (Art. 458 Criminal Code).45 The criminal court (tribunal correctionnel/correctionele rechtbank) has jurisdiction. The court’s decision can be appealed to the competent court of appeal, whose decision can in turn be appealed, although only on legal grounds, to the Supreme Court. No criminal sanctions can be imposed if the lawyer violates attorney–client privilege by testifying in court (including before an investigating magistrate) or before a parliamentary inquiry committee. However, disciplinary sanctions can still be imposed and the client can claim damages for any harm suffered (see below). This immunity from criminal sanctions does not apply if the lawyer freely, without being asked to do so by the court, presents to the court information which is protected by the attorney–client privilege.46 c

Civil proceedings and damages

29. Violation of the attorney–client privilege is a breach of contract with the client and damages may be awarded if the breach caused harm to the client. The client bears the burden of proof in this regard. The courts of first instance have jurisdiction over such proceedings, and appeal is possible to the courts of appeal and, finally, to the Supreme Court (on legal grounds only).

B

Relationship between criminal sanctions and disciplinary sanctions 30. Disciplinary and criminal sanctions are imposed independently and have no effect on each other. In general, the attorney general of the court of appeal will inform the president of the bar association of a criminal sanction imposed on a lawyer, and the president will probably initiate disciplinary proceedings against the lawyer on the basis of the same facts. The imposition of both criminal and disciplinary sanctions on the basis of the same facts does not, under Belgian law, violate the general principle of non bis in idem as the sanctions are imposed for the violation of different rules and matters.47 45 Court of Cassation, 11 February 1946, Pas. 1946, I, 66. 46 Nypels, L´egislation criminelle de la Belgique, III, 397. 47 This is considered a general (unwritten) rule of law which does not need to be enshrined in legislation in order to be applicable. Court of Cassation, 5 May 1992, Pas. 1992, I, 782; 5 February 1999, RW 1998–1999, 1352.

66

Belgium

5

Duty to provide information to the authorities

A

Money laundering and terrorism 31. Credit institutions, financial institutions and financial intermediaries, realestate brokers, diamond traders, surveillance companies, notaries, bailiffs, auditors and accountants are obliged to inform the Financial Information Processing Unit of any transaction they suspect is related to money laundering or the financing of terrorism (Act of 11 January 1993 on the prevention of the use of the financial system for the purpose of money laundering and terrorist financing). This legislation also applies to lawyers when assisting their clients in transactions relating to the acquisition or sale of real property or companies; the management of funds, securities or other assets; the opening or management of bank accounts or securities accounts; the contribution to companies; the incorporation or management of companies, trusts, fiduciary or similar legal constructions; or acts on behalf of clients in financial transactions or transactions relating to real property (Art. 3 of the Act of 11 January 1993). In this case, the lawyer must identify the client seeking advice on any of the above matters before providing assistance. But if the client is seeking assistance in ascertaining its legal position or with respect to litigation, the lawyer can accept the case before fulfilling the identification requirement (Art. 7). However, the Constitutional Court held that requiring lawyers to communicate information received from clients in relation to litigation, or in order to prevent litigation, to the Financial Information Processing Unit violates the attorney–client privilege and is thus unconstitutional (see no 13 above). The money-laundering legislation was subsequently amended, by the Act of 12 January 2004, in order to reflect this decision. The new rules are as follows. A lawyer who is informed of facts which she knows or presumes are related to money laundering or the financing of terrorism must immediately inform the president of her bar association. The president will then verify whether the facts indeed relate to money laundering or the financing of terrorism. If this is the case, the president must immediately inform the Financial Information Processing Unit but cannot inform the client of this fact or that an investigation is under way. However, lawyers must not inform the president of the bar association when they receive or obtain information from a client in the course of ascertaining the client’s legal position or providing assistance with respect to litigation, including when rendering advice on the initiation or avoidance of litigation, regardless of whether they receive such information before, during or after litigation. This exception does not apply when the lawyer takes part in the money-laundering activity or the financing of terrorism, or provides advice on money-laundering activity or the financing of terrorism, or knows that the 67

Professional secrecy of lawyers in Europe

client is seeking advice for the purposes of money laundering or the financing of terrorism (Art. 26 §3 of the Act of 11 January 1993).

B

Collective settlement of debts 32. In order to gather all information about the debtor’s financial situation, the court-appointed representative entrusted with the collective settlement of debts can ask the court to order the debtor and any third party to provide him or her with all useful information about transactions executed by the debtor and on the composition and location of the debtor’s assets (Art. 1675(8) Judicial Code). The law allows the court representative to request that persons bound by a duty of professional secrecy or discretion be released from this duty and consequently communicate all information indicated by the court. In this regard, the court must seek the advice of the disciplinary authorities, if any, to which the person in question is subject. However, the court is not bound by their opinion and can decide in any case to set aside professional secrecy. The Constitutional Court has held that this power is unconstitutional when exercised in relation to a lawyer. The attorney–client privilege prevails and should not be set aside solely in order to obtain complete information about the debtor’s assets.48

C

Sexual abuse 33. The Act of 30 November 2011 introduced into the Criminal Code an obligation for any person who, as a result of his or her capacity or profession, learns of a sex crime (defined with reference to the relevant provisions of the Criminal Code) involving a minor or a person who is vulnerable due to his or her age, pregnancy, illness or physical or mental handicap or partner violence, to inform the public prosecutor, if there is a serious and imminent danger to that person’s physical or mental integrity or if there is a real and serious risk that other minors or vulnerable persons will fall victim to such a crime, and the individual in question is not in a position to protect himself or herself (Art. 458bis Criminal Code). In such case this person may set aside the duty of professional secrecy without risk of prosecution. The law did not introduce an obligation to report to authorities, only a right to do so. This right is no different from the lawyer’s general right to contact the authorities in the event of a serious and imminent threat to a person’s life or health, notwithstanding the attorney–client privilege (see no 13 of this chapter). But it remains for the lawyer to decide whether to inform the authorities; in case of doubt he or she should preferably confer with the president of the Bar.

48 Constitutional Court, 14 June 2006, JLMB 2006, 1128, note by J. Wildemeersch.

68

Belgium

6

Treatment of a lawyer’s documents and correspondence in the context of judicial investigations 34. When, in the course of an investigation, the authorities come upon documents prepared by a lawyer, or letters to or from a lawyer, they should consider these documents to be privileged. In this case, the investigators must file the documents with the court in a sealed envelope. The judge overseeing the investigation can ask the president of the bar association to review the documents and keep sealed all privileged documents. This was common practice at the beginning of the last century, laid down in an agreement between the Brussels Bar Association and the Attorney General of Brussels in 1930. In 1970, due to certain incidents, the courts reneged on this agreement and let the investigating magistrate determine whether documents should be deemed privileged. Today, the investigating magistrate (juge d’instruction/onderzoeksrechter) generally takes this decision. It has been argued that this is in accordance with the law, as the investigating magistrate is entrusted with uncovering the truth and is supposed to take into account all arguments both in favour of and against the accused. Furthermore, the final decision on whether information is privileged rests with the court (and not the president of the bar association, who only ensures compliance with ethical rules).49 However, it could be argued that the above procedure violates the ECHR. Giving the investigating magistrate or the court hearing the case the right to examine documents protected by the attorney–client privilege violates the right to a fair trial laid down in Article 6 ECHR. Indeed, even if the judge or the court decides that the information should be kept secret, he will have read it and will not be able to exclude it from his mind. Consciously or unconsciously, the information may be decisive in the investigation. Legal scholars argue that the best solution is to entrust the decision regarding these documents to an independent judge who is not involved in the case.

7

Search of a lawyer’s office 35. The search of the office or home of a lawyer is not governed by law. It is generally accepted that the search should be conducted by the investigating magistrate in person, with the assistance of the police. Further, the investigating magistrate will request the president of the bar association to appoint a representative to be present during the search. The search is in general limited to files relating to clients who are under investigation. No other files should be opened or looked at. Each file is opened in the presence of the bar association’s representative, who decides together with the investigating magistrate which documents can 49 Brussels Court of Appeal, 21 June 1978, JT 1979, 29.

69

Professional secrecy of lawyers in Europe

be taken into possession. The investigating magistrate takes the final decision (see no 34 above). The judge should only take documents that are not protected by the attorney–client privilege. When questioned by the investigating magistrate, the lawyer should not disclose information protected by the attorney–client privilege. Any violation of this duty will result in the imposition of disciplinary sanctions and the client can sue for damages. If disclosure occurs in this context, however, the lawyer cannot be subject to criminal sanctions (see nos 28 above and 37 below).

8

Tapping of telephone conversations with a lawyer 36. In certain cases defined in the Code of Criminal Procedure (Art. 90ter CCP), the investigating magistrate may authorise the tapping of telecommunications where there are serious indications that the person in question has committed a specific crime (which is on the limitative list of crimes defined in the CCP) or where this person is suspected, on the basis of precise facts, of maintaining regular contacts with a suspected criminal. Any relevant information is set down in an official transcript for further investigation. Information protected by the attorney–client privilege may not be transcribed (Art. 90sexies CCP). Tapping of a lawyer’s telecommunications is only possible if the lawyer is suspected of having committed a crime defined in Article 90ter CCP or if other persons who are suspected of such a crime are presumed to use the lawyer’s telecommunications network. The president of the bar association must be informed. Any information which the investigating magistrate finds that is protected by the attorney–client privilege shall be communicated to the president of the bar association and may not be recorded in the official transcript (Art. 90octies CCP).

9

The lawyer as witness 37. A lawyer can be called to testify in court as a witness. A lawyer who is called to testify must take an oath and raise the attorney–client privilege when refusing to answer. Indeed, this privilege is a valid ground for refusing to respond to questions (Art. 929 Civil Code). Disclosing confidential information in this context is not a crime but does constitute a breach of contract and may be subject to disciplinary sanctions (see no 28 above). Consequently, the court is not entitled to compel the lawyer to testify on issues which are protected by the attorney–client privilege.50 The

50 Court of Cassation, 15 March 1948, Pas. 1948, I, 169.

70

Belgium

lawyer decides whether he can disclose information, under the authority of the president of the bar association.51 The court will verify whether the lawyer who refuses to testify is citing the attorney–client privilege to avoid testifying with regard to facts that in reality are not protected.52 A lawyer who is called to testify on matters in which he did not act as a lawyer cannot refuse to testify on the basis of the attorney–client privilege. This also applies to information received when he was not helping clients define their legal position.53 The above rule also applies when a lawyer becomes the lawyer of a suspect after the commission of a crime which the lawyer witnessed.54 In this case, the lawyer cannot refuse to testify. This is why, pursuant to the Bar’s ethical rules, a lawyer cannot accept a case if he witnessed, in another capacity, the facts on which the case is based.

10

The lawyer and the press 38. It is generally accepted that a lawyer can, with the client’s consent, speak to the press in order to defend the client against allegations made in the press. However, the lawyer should refrain from conducting the case in the press rather than in the courtroom. In any case, the lawyer cannot disclose privileged information to the press.

11

Powers of the tax administration and other authorities 39. Under Belgian law, it is generally accepted that no authority is entitled to compel a lawyer to disclose information which is protected by the attorney– client privilege. If a lawyer raises the attorney–client privilege, when requested by the tax administration to produce his accounts, the tax administration can ask the president of the Bar to determine whether the request for information violates the attorney–client privilege (Art. 334 Direct Revenue Tax Code). The president of the Bar will request that the names of the clients and other information which relates to the clients are rendered anonymous. The decision of the president of 51 Court of Cassation, 22 March 1926, Pas. 1926, I, 310; Li`ege Court of Appeal, 25 June 1958, Pas. 1959, II, 108; Antwerp Court of First Instance, 22 January 1944, Pas. 1945, III, 65. 52 Court of Cassation, 30 October 1978, JT 1979, 369; 23 June 1958, Pas. 1958, I, 1180. 53 Li`ege Court of Appeal, 25 June 1958, Pas. 1959, II, 108. The appellate court held that if the lawyer were called to testify on the existence of a contract signed by the client in the lawyer’s presence, he would have to testify on facts that fell outside the scope of his duties as a lawyer and which are therefore not covered by the attorney–client privilege. 54 Court of Cassation, 27 March 1905, Pas. 1905, I, 176.

71

Professional secrecy of lawyers in Europe

the Bar is binding. In general, courts will only intervene if the decision of the president is, given the circumstances, clearly unreasonable.55

12

State security service 40. The Belgian state security service must also respect professional secrecy (or privilege). Investigation methods that violate professional secrecy are only permitted if the state security service has serious indications that the lawyer in question is participating in an activity that constitutes a potential threat to national security or to the state.56 In that case, the state security service can, to the extent necessary for the investigation, tap the lawyer’s telephone communications, search his or her house, access his or her computer and bank accounts, and open correspondence. The state security service’s investigation methods are subject to scrutiny by a special committee, composed of members of the judiciary who are appointed by the Government. The chairperson of this committee or another member appointed by the chair must be present when a lawyer forms the subject of an investigation by the state security service. The chairperson of the committee shall inform the bar authorities of the fact that a lawyer is being investigated. 55 Ghent Court of Appeal, 15 June 2010, TFR 2010, 905, note by T. Afschrift and P. van Hissenhoven. 56 Act of 30 November 1998 on the regulation of information and the State Security Service.

72

5 Bulgaria kina chuturkova, raina dimitrova Partners, Boyanov & Co.

mihail vishanin Associate, Boyanov & Co.

Preliminary note 74 1 Scope of and limitations on professional secrecy 74 A Statutory basis and implications 74 B Scope 77 C Persons subject to the duty of professional secrecy 77 D Limitations and derogations 79 a Limitations 79 b Derogations 80 E Law firms 80 F Legal assistants and staff 81 G External service providers 81 H Multidisciplinary associations 81 2 History 82 3 Supervision 82 A The bar associations 82 B The courts 83 4 Sanctions 83 A Proceedings and sanctions 83 a Disciplinary proceedings and sanctions 83 b Criminal proceedings and sanctions 85 c Civil proceedings and damages 85 B Relationship between criminal sanctions and disciplinary sanctions 5 Duty to provide information to the authorities 85 A Money laundering and terrorism 85 6 Treatment of a lawyer’s documents and correspondence in the context of judicial investigations 86 7 Search of a lawyer’s office 86 8 Tapping of telephone conversations with a lawyer 86 9 The lawyer as witness 87 10 The lawyer and the press 87 11 Powers of the tax administration and other authorities 87 12 State security service 87

85

73

Professional secrecy of lawyers in Europe

Preliminary note 1. In Bulgaria, lawyers who are admitted to the Bar are subject to a duty of professional secrecy (also known as the attorney–client privilege). Only lawyers who are admitted to the Bar are entitled to appear in court (with a few exceptions). Such lawyers are self-employed, although they can be partners or associates in a law firm. They must comply with the Attorneys’ Code of Ethics, approved by the Supreme Bar Council. In Bulgaria, there is a bar association in each region of each of the district courts (окръжни съдилища/okrazhni sadilishta), which are courts of first instance in certain civil and criminal court cases and second instance in the civil and criminal cases considered by the regional courts (районни съдилища/rayonni sadilishta). In total, Bulgaria has twenty-eight bar associations, each of which is presided over by a chairperson. Other governing bodies of each bar association are the General Meeting (of the Attorneys) (общо събрание/obshto sabranie), the Bar Council (адвокатски съвет/advokatski savet), the Supervisory Board (контролен съвет/kontrolen savet) and the disciplinary court (дисциплинарен съд/distsiplinaren sad). There are supreme governing bodies of all bar associations on a national level – the General Meeting of all attorneys in Bulgaria (общо събрание на всички адвокати от страната/obshto sabranie na vsichki advokati ot stranata), the Supreme Bar Council (Висш адвокатски съвет/vish advokatski savet), the Supreme Supervisory Board (Висш контролен съвет/vish kontrolen savet), the president of the Supreme Bar Council (Председател на Висшия адвокатски съвет/predsedatel na vishiya advokatski savet) and the Supreme Disciplinary Court (Висш дисциплинарен съд/vish distsiplinaren sad). Lawyers who work for a company (in-house counsel), the state or a public organisation are not members of the Bar. They can, however, represent their companies or organisations before the court if duly empowered. This chapter focuses on the duty of professional secrecy, or attorney–client privilege, of lawyers who belong to the Bar. Unless indicated otherwise, for the purposes of this chapter, the term ‘lawyer’ refers to a member of the Bar (адвокат/advokat).

1

Scope of and limitations on professional secrecy

A

Statutory basis and implications 2. The statutory basis in Bulgaria for the attorney–client privilege is provided by Article 30(5) of the Constitution1 and Article 45 of the Bar Act.2 1 Promulgated State Gazette no 56, 13 July 1991, effective as of 13 July 1991, as amended and supplemented. 2 Promulgated State Gazette no 55, 25 June 2004, effective as of 29 June 2004, as amended and supplemented.

74

Bulgaria

Article 30(5) of the Constitution provides for the right of each person to meet in private with a lawyer defending their rights and that the confidentiality of their communications is inviolable. That constitutional provision actually represents a statutory guarantee for observance of the obligation of lawyers to keep professional secrecy. Pursuant to Article 45(1) of the Bar Act, ‘the lawyer is obliged to keep the secret of his client without a time limit’. Article 45(2) of the Bar Act states further that ‘the lawyer is not entitled as a witness to disclose circumstances which were assigned to him/her as a lawyer by his/her client or by another lawyer about his/her client’. Article 145(1) of the Criminal Code imposes a duty of professional secrecy on anyone who comes to know the secrets of another person in connection with his/her profession.3 The text of said provision reads, ‘anyone who unlawfully reveals the secret of another, threatening the good name of the latter, which was confided to him or has come to his knowledge in connection with his profession’ shall assume criminal liability. Said provision is also relevant to lawyers. Violation of this duty can be sanctioned by imprisonment for up to one year or a criminal fine between BGN 100 and BGN 300 (€1.00 = BGN 1.95583). It should be noted that criminal liability will be assumed by lawyers if they reveal the confided secret unlawfully, which means ‘except for the cases explicitly provided by the law’. In this regard it should be borne in mind that the provision of Article 45(2) of the Bar Act cited above imposes a ban upon the lawyer revealing professional secrets confided by his/her client or by another lawyer about his/her client even as a witness in the due process of law. Rules similar to Article 45(2) of the Bar Act are provided in the Criminal Procedure Code4 and the Civil Procedure Code.5 The Criminal Procedure Code provides for rules with regard to the interrogation of lawyers in court cases in which they participated as defence counsel or other counsel (of the private prosecutor, the civil complainant or respondent). Pursuant to Article 118(1) of the Criminal Procedure Code, ‘persons who have taken part in the same criminal proceedings in another procedural capacity may not have the capacity of witnesses’, except for the persons listed in the same provision, which, however, do not include defence or other counsels. Another even more precise provision is that of Article 121(2), which states that: ‘witnesses may not be interrogated

3 Promulgated State Gazette no 26, 2 April 1968, effective as of 1 May 1968, as amended and supplemented. 4 Promulgated State Gazette no 86, 28 October 2005, effective as of 29 April 2006, as amended and supplemented. 5 Promulgated State Gazette no 59, 20 July 2007, effective as of 1 March 2008, as amended and supplemented.

75

Professional secrecy of lawyers in Europe

on circumstances which were confided to them as defence counsel or counsels of the private prosecutor, the civil complainant or respondent’. On the other hand, Article 166(1), subparagraph 1, of the Civil Procedure Code provides the rule that in the civil proceedings no one has the right to refuse to testify except for the attorneys of the parties to the same case. The Supreme Administrative Court ruled that in such a case the lawyer has to prove the grounds for refusal to testify prior to the court hearings for which he or she is summoned.6 Here lies the difference between the approach of the two codes – the Criminal Procedure Code bans the interrogation of the lawyers of the parties in the same proceedings whereas the Civil Procedure Code entitles the lawyers of the parties to refuse to testify in the same proceedings. However, and despite the lack of court practice in such cases, even in civil proceedings the lawyer will be banned from testifying in accordance with the rule of Article 45(2) of the Bar Act. 3. In conclusion, there are two basic rules when it comes to professional secrecy: lawyers are not allowed to reveal, inside or outside the court of law, secrets that are entrusted to them if this will threaten the good name of their client (Art. 145(1) of the Criminal Code), and lawyers are banned from revealing attorney–client privileged information in any civil, criminal or administrative proceedings as witnesses regardless of whether the revelation of the information can in any way harm their clients’ rights (Art. 45(2) of the Bar Act). Provisions of the Criminal Procedure Code and the Civil Procedure Code mentioned above have a narrower scope in comparison with Article 45(2) of the Bar Act. However, it may be argued that Article 45(2) of the Bar Act applies in all cases where lawyers are summoned to testify in civil, criminal or administrative proceedings, no matter that these lawyers are requested to testify to secrets entrusted by parties to the respective proceedings or by other clients. 4. The duty of professional secrecy is provided by the law in favour of the clients as a guarantee for their right of defence in criminal, civil and administrative proceedings. However, being a right of the client, the attorney–client privilege can be waived by the client, and the latter can allow the lawyer to testify as a witness before the court and to provide information which otherwise should have been confidential and subject to professional secrecy, including correspondence between the lawyer and the client. This conclusion is drawn also from the contractual nature of the liability of the lawyer in case of breach of the attorney–client privilege (see no 5 of this chapter).

6 Supreme Administrative Court, 22 May 2009, ruling no 6723, administrative court case no 4972/2009.

76

Bulgaria

5. No relevant published case law of the Bulgarian courts concerning the nature of lawyers’ liability in case of breach of their duty of professional secrecy, whether that constitutes a contractual breach or a tort, could be found.7 The liability of lawyers in case of violation of the attorney–client privilege is based on contractual non-performance on the part of lawyers. The duty of professional secrecy is part of the so-called naturalia negotii of the contract between the lawyer and his/her client, i.e. even if not expressly negotiated by the parties it is implicitly a part of the contract by operation of the law. Thus breach of the attorney–client privilege by the lawyer is considered a breach of the contract between the lawyer and the client.

B

Scope 6. The duty to keep attorney–client privilege covers all data, documents and correspondence in general – all information obtained by the lawyer with regard to the work on a particular case for a client, and provided to the lawyer either by the client or by third parties. In this regard it makes no difference if the case is related to litigation, to completion of a deal, to soliciting advice, etc. 7. It should be further noted that the attorney–client privilege has the scope outlined in no 6 above, but no more than that. The lawyer is under a duty to comply with the provisions on attorney–client privilege when performing his obligations under a legal services agreement. The scope of the lawyer’s obligations, however, does not extend to the information obtained by the lawyer in a different capacity (such as his/her previous capacity as an in-house lawyer, a trustee in bankruptcy, a liquidator, etc.).

C

Persons subject to the duty of professional secrecy 8. Violation of the attorney–client privilege constitutes a breach of contract between the lawyer and the client (see no 5 above). Furthermore, any breach of the duty of professional secrecy constitutes a violation of the Attorneys’ Code of Ethics. Although stemming from a legal services contract, the duty of professional secrecy has to be respected by all state and municipal authorities, as well as any third parties (per Art. 21(2) of the Obligations and Contracts Act: ‘Third parties impeding in bad faith the performance of contracts shall owe compensation’). The duty of professional secrecy is closely related to the constitutional rule that the confidentiality of the attorney–client communications is inviolable, 7 Please note that court rulings are not all published in Bulgaria. Only a part of the case law of the Supreme Court of Cassation is published, and only a few other courts in the country publish some of their rulings on their websites.

77

Professional secrecy of lawyers in Europe

and therefore has to be respected by all state and municipal authorities, and any third parties, as a constitutional principle. Article 30(5) of the Constitution provides that everyone has the right to meet their defence counsel in private and the confidentiality of such communication cannot be infringed. Pursuant to the case law of the Constitutional Court of the Republic of Bulgaria,8 this provision is related not only to communication exchanged between the defence counsel and the client, but also relates to any correspondence between them. Therefore the prison administration is obliged to respect the confidentiality of said correspondence. Exception to that rule is admissible only in the cases provided for by Article 34(2) of the Constitution: where this is necessitated for detection or prevention of grave crimes and with the sanction of the competent court.9 Pursuant to Article 93, subparagraph 7 of the Criminal Code, ‘Grave crime’ is any crime for which the law provides imprisonment for more than five years, or life imprisonment with or without substitution. However, Article 34(2) of the Constitution should not be applicable as far as correspondence between a lawyer and a client is concerned because of the absolute and explicit ban of Article 30(5) of the Constitution. In addition, it should be noted that Article 33(2) of the Bar Act sets forth that correspondence between a lawyer and his or her client, irrespective of the manner in which it is maintained, including electronically, shall not be subject to inspection, verification or seizure and shall not be used as evidence. Thus such correspondence – including also, in our view, lawyers’ papers, files, electronic documents, computer equipment and other carriers of information – is inviolable even in cases of detection or prevention of grave crimes and even if sanctioned by the court. In this regard the Prosecutor General of the Republic of Bulgaria issued Instruction no И 134 dated 11 April 2011 on the Measures Admissible for Implementation by the Pre-trial Authorities towards Lawyers (the Pre-trial Instruction), which contains clarifications on the duties of the investigating authorities and prosecutors for the observance of Article 33 of the Bar Act. 9. The Constitutional Court of the Republic of Bulgaria also has adopted the view that the attorney–client privilege is part of the general right of respecting personal secrets and in economic relationships is connected to the inviolability of private property (Art. 17(3) of the Constitution), free economic initiative (Art. 19(1) of the Constitution) and the protection of fair competition (Art. 19(2) of the Constitution).10 8 Constitutional Court of the Republic of Bulgaria, 18 April 2006, decision no 4, constitutional case no 11/2005. 9 Constitutional Court of the Republic of Bulgaria, 18 April 2006, decision no 4, constitutional case no 11/2005. 10 Constitutional Court of the Republic of Bulgaria, 14 November 1997, decision no 18, constitutional case no 12/1997.

78

Bulgaria

D

Limitations and derogations 10. The protection of attorney–client privilege is not absolute or unexceptional. The law in force provides for some cases where exceptions or derogations from said right are admissible. There is no doubt that the exceptions and derogations from the attorney– client privilege should be interpreted so as not to extend beyond the expressly listed cases. Being limitations to some of the fundamental rights of Bulgarian citizens and of any other persons when under Bulgarian jurisdiction, the exceptions and derogations from the duty of professional secrecy should be interpreted strictly.

a

Limitations

11. The Measures against Money Laundering Act11 imposes duties on lawyers to apply anti-money-laundering measures towards their clients in the planning or performance of a client’s deal or transaction concerning the purchase or sale of real property or transfer of a merchant’s business; the management of cash, securities or other financial assets; the opening or operating of a bank account or a securities account; raising funds to incorporate a merchant; increasing the capital of a company; extending a loan or for any form of raising funds for the business operations of such merchant; acting for the account or on behalf of the client in any financial or real-property transaction; and so on. The measures provided by the Measures against Money Laundering Act include identification of clients and verifying their identification, identification of the client’s actual legal-person owner, collection of information from the client regarding the purpose and the nature of the relationship which has been established or is to be established with the client, ongoing monitoring of all established commercial or professional relations and verification of all transactions performed within such relations, and disclosure of information on any doubtful transactions and clients. Where a suspicion of money laundering arises, the lawyers are bound to collect information about the material components and the size of the transaction or deal, the respective documents and other identification data. The collected data has to be documented and stored in a way providing access by the Financial Intelligence Directorate of the State Agency for National Security, the relevant supervisory authorities, and auditors. 12. The Measures against the Financing of Terrorism Act provides for similar obligations for lawyers.12 Should suspicion arise about the financing of terrorism, the lawyers must immediately also notify the Financial Intelligence Directorate of the State Agency for National Security before the operation or 11 Promulgated State Gazette no 85, 24 July 1998, as amended and supplemented. 12 Promulgated State Gazette no 16, 18 February 2003, as amended and supplemented.

79

Professional secrecy of lawyers in Europe

transaction is performed, while delaying its implementation within the admissible period laid down by the legislative regulations on the relevant type of activity. The disclosure of such information may not be restricted on consideration of classified information constituting an official, commercial or bank secret and entails no liability for violation of other laws; neither may any liability ensue in cases when it is established that no criminal offence has been committed and the operations and transactions have been lawful. Lawyers may not notify their customers or third parties about the disclosure of information under the above act. However, it is doubtful in the light of the provisions of Articles 33(1)13 and 45 of the Bar Act (see no 2 of this chapter) whether the information provided by the lawyers under the Measures against Money Laundering Act and the Measures against the Financing of Terrorism Act can be used as evidence before court and whether the lawyers can be interrogated before court for the same circumstances. Unfortunately there is no published relevant court practice on these issues. b

Derogations

13. Pursuant to the Constitution, the basic rights of the citizens are irrevocable (Art. 57(1)). However, Article 57(3) of the Constitution provides that, upon declaration of war, of a state of martial law or of another state of emergency, the exercise of particular citizens’ rights may be temporarily restricted by statute, i.e. only by a statutory act of the Parliament. The same legal provision enumerates a list of basic rights that cannot be restricted even under the above-mentioned exceptional cases (state of war, martial law or other state of emergency), but the right of inviolability of correspondence between defence attorney and defended is not among the listed exceptions. Therefore the right to inviolability of correspondence between defence attorney and defended can be restricted under the circumstances of declared war, of a state of martial law or of another state of emergency by a statutory act of the Bulgarian Parliament. In case of enacting of such restrictions, attorney– client privilege will also be affected.

E

Law firms 14. In Bulgaria, when a client refers a request for legal services to a law firm it is deemed that the law firm is engaged. The case can be assigned to any of the lawyers working for the law firm depending on the speciality of each of the lawyers. In this case the partners and the associates of the law firm share 13 ‘Lawyers’ papers, files, electronic documents, computer equipment and other carriers of information shall be inviolable and shall not be subject to inspection, copying, verification or seizure.’

80

Bulgaria

common confidential information and all of them are supposed to observe the duty of attorney–client privilege. Said requirements for observing the attorney–client privilege do not apply in the case of lawyers working in a cost-sharing structure (when they share costs for office space and consumables). Each of the lawyers in such structures has his or her own clients and has to observe the attorney–client privilege visa` -vis their respective clients. The other lawyers belonging to the cost-sharing structure are not entitled to the attorney–client privileged information of their colleagues.

F

Legal assistants and staff 15. Lawyers and law firms may hire staff for assisting their activity. The Bar Act allows lawyers or law firms to hire legal assistants. Legal assistants are not necessarily lawyers and cannot be assigned to handle cases of clients. However, under the law they have access to the court files of the clients of the lawyers or the law firms they are working for. Therefore they may be entrusted with confidential information about the clients of the respective lawyers or the law firms and shall observe the same duty of attorney–client privilege. As for the other staff of lawyers, such as secretaries, accountants and so on, they are obliged under their labour contracts to keep confidential all information that they come to know in their employment.

G

External service providers 16. The law firms may decide to outsource some non-legal work to outside service providers such as accountants, translators and so on. Those service providers are not lawyers and therefore the law firms have to negotiate with them confidentiality obligations in performing the assigned task. Of course, the external service providers are under the general duty of not disclosing professional secrets that can threaten the good name of another person, as set forth in Article 145(1) of the Criminal Code (see no 2 of this chapter). If a lawyer or a law firm provides confidential information to other lawyers outside the firm (for example, for performing legal due diligence), the duty of professional secrecy extends also to the outside lawyers under the law and state and municipal authorities are obliged to respect the attorney–client privilege in these cases.

H

Multidisciplinary associations 17. TheBar Act does not allow lawyers to form professional associations with non-lawyers. Upon the prior client’s consent, a lawyer is entitled to co-operate, on a specific matter, with a professional who is not a lawyer, provided that the lawyer secures from the outside professional confidentiality obligations. 81

Professional secrecy of lawyers in Europe

2

History 18. The Attorneys Act of 1888 provides a disciplinary penalty for lawyers who reveal unlawfully the secrets of their clients. The first Criminal Act of the new Bulgarian state that was restored at the end of the nineteenth century was enacted and promulgated in 1896. The Criminal Act contains provisions similar to the Criminal Code now in force (see no 2 of this chapter) for penalising the unlawful disclosure or dissemination of the secret of another which was confided to one or has come to one’s knowledge in connection with one’s profession (Art. 308 of the Criminal Act of 1896), thus threatening their good name. The Criminal Act of 1896 provides penalties for any crimes against the inviolability of correspondence. The inviolability of correspondence is also set up in the Constitution of the Kingdom of Bulgaria of 1879 as one of the fundamental rights of citizens. Furthermore, the Criminal Act of 1896 penalises the misconduct of a lawyer who unlawfully serves the interests of adversary parties in a court trial. Such a case might constitute a violation of the attorney–client privilege by disclosing the secret of a client to the adversary party. The Criminal Code of 1951, which replaced the 1896 Criminal Act, contains a provision identical to the provision of Article 145(1) of the Criminal Code currently in force (see no 2 of this chapter).

3

Supervision

A

The bar associations 19. Lawyers in Bulgaria are self-employed independent legal professionals, and partners or associates in law firms are not allowed to work under a labour contract. The pursuit of the profession of lawyer, as an activity envisaged in the Constitution, shall consist in the provision of legal assistance and defence of freedoms, rights and legitimate interests of individuals and legal entities (Art. 2(1) of the Bar Act). It shall be implemented in compliance with the principles of independence, exclusivity, self-governance and self-sustainability (Art. 2(1) of the Bar Act). In the practice of their profession, attorneys-at-law are guided by the legal interests of their clients, which they shall be obligated to defend in the best possible way, within the legal means available to them (Art. 2(2) of the Bar Act). Pursuant to Article 134(1) of the Constitution, a bar association is free, independent and self-regulating. It is meant to assist citizens and legal entities in the protection of their rights and legitimate interests. The bar associations supervise the practice of lawyers through their bodies (see no 1 of this chapter), but they are not empowered to interfere with the

82

Bulgaria

handling of the cases of lawyers. They are empowered to control compliance of the lawyers’ practice with the statutory acts and the Attorneys’ Code of Ethics and to impose disciplinary sanctions in case of violations.

B

The courts 20. Bulgarian civil courts exercise jurisdiction over lawyers in relation to their liability for damages caused to their clients. In the event of a lawyer’s committing a crime, whether in practising the profession or not, they are under the jurisdiction of the criminal courts.

4

Sanctions

A

Proceedings and sanctions

a

Disciplinary proceedings and sanctions

21. Disciplinary proceedings shall be instituted by a decision of the Bar Council or of the Supreme Bar Council by means of a written notification from public bodies, legal entities or individuals, as well as authored publications in the media, which contain a sufficient body of information about the disciplinary offence. Anonymous complaints do not constitute statutory grounds for the institution of disciplinary proceedings. Following receipt of notification of a disciplinary offence, the Bar Council is obligated to notify the lawyer, who may submit explanations within seven days of notification. After expiry of the seven-day period the chairperson of the Bar Council shall assign a rapporteur (a member of the Council) to proceed to an inspection of the existence of circumstances warranting the institution of disciplinary proceedings. Such an inspection should be accomplished within one month. Following completion of the inspection, at the first session of the Bar Council the rapporteur shall submit a written report on the findings. At the same session, the Bar Council shall rule in a decision about the institution of, or the refusal to institute, disciplinary proceedings. Where necessary, the Bar Council can order an additional inspection within fourteen days. A disciplinary indictment shall be drafted, submitted and upheld before the disciplinary court by a rapporteur who has proceeded to inspect the specific incident or by a Council member appointed by the Bar Council. The competent disciplinary court to act in the first instance shall be the respective disciplinary court at the association in which the lawyer is registered, and in the second instance shall be the Supreme Disciplinary Court. In the event of disciplinary actions against members of Bar Councils, Supervisory Boards and Disciplinary Courts of the association, as well as against members of the Supreme Bar Council, the Supreme Supervisory Board and the Supreme 83

Professional secrecy of lawyers in Europe

Disciplinary Court, the first instance shall be a panel (respectively of five members and of seven members) of the Supreme Disciplinary Court, and the second instance for these disciplinary cases shall be the Supreme Court of Cassation (Arts. 129(1) and 130 of the Bar Act). The Bar Council shall notify the competent body of the country where a foreign lawyer practising the profession of lawyer in Bulgaria has been authorised to pursue the profession of lawyer about the disciplinary offence committed by him or her and shall send a copy of the decision for the institution of disciplinary proceedings. Upon request, they also shall submit all available information and evidence collected in the course of inspection. The chairperson of the disciplinary court opens a disciplinary case and appoints a panel, which will consider it. A hearing of the disciplinary case has to be scheduled no later than one month after its institution. A copy of the disciplinary indictment, together with written evidence and a notice of the date of the hearing, has to be sent to the indicted lawyer, who is entitled to submit contestation in writing within seven days of receipt. The disciplinary court considers the case in the presence of the indictor, the disciplinarily indicted lawyer and any interested party or parties. Disciplinary prosecution shall be proscribed where a sanction has not been imposed within one year of the offence having been committed, or upon decease of the offender. The disciplinary court determines whether a disciplinary sanction is to be imposed on the lawyer concerned or whether the latter shall be acquitted. A decision has to be adopted by a secret vote, by a majority of the panel members, and it has to be notified by the panel chairperson reading it aloud. 22. The following disciplinary sanctions can be imposed by the disciplinary body: (i) a reprimand, (ii) a fine of between one and eight times the minimum salary,14 (iii) suspension from the right to hold elected office in bodies of the Bar for a period of between one and three years, (iv) suspension from practising law for a period of between three and eighteen months or (v) suspension from the practice of law for a period of up to five years in the event of a repeated offence. 23. The decisions of the disciplinary court can be appealed in front of the Supreme Disciplinary Court within fourteen days of their notification. An appeal can be filed by any of the parties to the first-instance disciplinary proceedings. The Supreme Disciplinary Court schedules a hearing and examines the case within a period not exceeding one month. The Supreme Disciplinary Court may collect new evidence at the request of the parties and ex officio.

14 Currently the minimum salary in Bulgaria is BGN 310.00.

84

Bulgaria

The decision of the Supreme Disciplinary Court is not subject to appeal and is final. b

Criminal proceedings and sanctions

24. Violation of the attorney–client privilege that threatens the good name of the client is declared a crime by Article 145(1) of the Criminal Code and is punishable by a prison term of up to one year or a fine of between BGN 100 and BGN 300 (€1.00 = BGN 1.95583). The competent court is the respective regional court (районен съд), the criminal department where the criminal act was committed. The court’s decision can be appealed before the competent district court (окръжен съд), whose decision can in turn be appealed to the Supreme Court of Cassation, although only on points of law. c

Civil proceedings and damages

25. In the event the lawyer violates the attorney–client privilege, damages may be awarded if the breach has caused harm to the client. The client bears the burden of proof in those cases in establishing the act of violation, the kind and amount of damages and the causal link between the violation and the alleged damages. The court of first instance having jurisdiction over such proceedings shall be the respective regional or district court, depending on the amount of the alleged damages (below or above BGN 25,000), and appeal is possible before the courts of appeal (respectively the district courts or the courts of appeal). Finally, a cassation appeal can be allowed before the Supreme Court of Cassation if the preconditions of the Civil Procedure Code are met (if the cassation appeal is admitted) – the cassation review shall be only on points of law.

B

Relationship between criminal sanctions and disciplinary sanctions 26. The institution of criminal or penal administrative proceedings shall not exclude disciplinary liability and shall not suspend the prescription period. For one and the same offence the lawyer can receive a disciplinary as well as a criminal penalty (Art. 134(3) of the Bar Act).

5

Duty to provide information to the authorities

A

Money laundering and terrorism 27. The rules applicable to lawyers in relation to money laundering and terrorism are discussed in nos 11 and 12 of this chapter. 85

Professional secrecy of lawyers in Europe

6

Treatment of a lawyer’s documents and correspondence in the context of judicial investigations 28. The treatment of documents and correspondence of a lawyer in a judicial investigation is discussed in no 8 of this chapter.

7

Search of a lawyer’s office 29. Pursuant to Article 33(1) of the Bar Act, lawyers’ papers, files, electronic documents, computer equipment and other carriers of information shall be inviolable and shall not be subject to search, copying, verification or seizure. There are no exceptions to said rule. However, it should be noted that lawyers’ offices and homes may, upon sanction of the court, be subject to search for detection of crimes committed by the lawyers themselves. Pursuant to the Pre-trial Instruction, in the application for the court’s permission for the search it has to be indicated that the measures will be undertaken towards a lawyer.

8

Tapping of telephone conversations with a lawyer 30. The Criminal Procedure Code allows in certain cases the tapping of telephone conversations through special intelligence means – for detection of particular grave crimes listed in the Criminal Procedure Code. However, this possibility does not extend to conversations between lawyers and their clients. Pursuant to Article 33(3) of the Bar Act, conversations between a lawyer and his or her client shall not be tapped or recorded. Any recordings, where available, shall not be used as means of evidence and shall be subject to immediate destruction. There is no exception from said rule. However, similarly to the rules explained in no 29 of this chapter, special intelligence means (including tapping of lawyers’ conversations) may, upon sanction of the court, be applied towards lawyers for the detection of crimes committed by the lawyers themselves. Pursuant to the Pre-trial Instruction, in the application for the court’s permission for use of special intelligence means it has to be indicated that the measures will be undertaken towards a lawyer. In addition, according to the Pre-trial Instruction, if, during the use of special intelligence means, the investigating authorities detect conversation between a lawyer and a client or between lawyers concerning defence of a client’s rights and interests, then the conversation has to be recorded only if it contains information about a crime committed by the lawyer being investigated.

86

Bulgaria

9

The lawyer as witness 31. We have already explained the status of lawyers as witnesses in the civil and criminal procedure under the law (see nos 2 and 3 of this chapter).

10

The lawyer and the press 32. A lawyer is not allowed to breach attorney–client privilege to the press. However, with the client’s consent, a lawyer is entitled to make announcements to the press in defence of the client’s rights.

11

Powers of the tax administration and other authorities 33. The revenue and other administrative authorities are obliged to observe the attorney–client privilege and are not entitled to compel lawyers to breach the attorney–client privilege.

12

State security service 34. The State Agency for National Security is also obliged to observe the attorney–client privilege. The State Agency for National Security shall have access to lawyers’ files for the purpose of applying measures against money laundering and against the financing of terrorism (see nos 11 and 12 of this chapter).

87

6 Cyprus alexandros tsadiras A.C. Tsadiras & Associates European University Cyprus

Preliminary note 89 1 Scope of and limitations on professional secrecy 89 A Statutory basis and implications 89 B Scope 91 C Persons subject to the duty of professional secrecy 92 D Limitations and derogations 93 a Limitations 93 b Derogations 93 E Law firms 94 F Legal assistants and staff 94 G External service providers 94 H Multidisciplinary associations 95 2 History 95 3 Supervision 95 A The bar associations 95 B The courts 96 4 Sanctions 96 A Proceedings and sanctions 96 a Disciplinary proceedings and sanctions 96 b Criminal proceedings and sanctions 98 c Civil proceedings and damages 98 B Relationship between criminal sanctions and disciplinary sanctions 98 5 Duty to provide information to the authorities 98 A Money laundering and terrorism 98 B Collective settlement of debts 100 6 Treatment of a lawyer’s documents and correspondence in the context of judicial investigations 101 7 Search of a lawyer’s office 101 8 Tapping of telephone conversations with a lawyer 101 9 The lawyer as witness 102 10 The lawyer and the press 103 11 Powers of the tax administration and other authorities 103 12 State security service 103

88

Cyprus

Preliminary note 1. In Cyprus the title ‘practising advocate’ (dikhg»rov pou aske© thn dikhgor©a in Greek) is, in principle, accorded to legal professionals who (i) are members of the Bar, (ii) possess an annual licence from the Cyprus Bar Association and (iii) pay their contributions to the Advocates Pension Fund. Those professionals can be self-employed, partners or associates in a law firm. Their status and activities are basically regulated by the Advocates’ Law Cap. 2 (hereinafter the Law) and the Advocates’ Code of Conduct Regulations of 2002 (hereinafter the Code).1 There exist six local bar associations (Nicosia, Limassol, Famagusta, Larnaca, Paphos and Kerynia) and one centralised, national bar association, namely the Cyprus Bar Association. The duty of secrecy in dealings and communications with clients (commonly referred to as ‘attorney–client privilege’) is exclusively imposed upon practising advocates as defined above. It does not therefore extend to those professionals who are not entitled to pursue their activities under that professional title. In-house lawyers may not be members of the Bar in Cyprus and the legal privilege is not therefore recognised for them. They are, of course, bound to respect the confidentiality clauses contained in their contract of employment; however, it is questionable whether those contractual constraints can validly be invoked by the in-house lawyer in order to refuse disclosure of information in court proceedings. It should be recalled that professional secrecy constitutes an indispensable condition for building confidence and trust in the advocate–client relationship. To achieve that, professional secrecy performs a duality of functions. On the one hand, it acts as a duty upon the advocate preventing him or her from divulging certain information provided by the client in a given context. On the other hand, it operates as a right conferred upon the advocate empowering him or her to resist any external interference in the relationship with the client. That functional duality of professional secrecy permeates the ensuing analysis.

1

Scope of and limitations on professional secrecy

A

Statutory basis and implications 2. Multiple statutory sources of confidentiality rights and duties for lawyers exist in Cyprus. Those sources can be divided into two different groupings. First, there are texts of Cypriot legislative origin, either primary or secondary. Second, there exist European treaties. 3. At the level of domestic primary law, Article 30 of the Cyprus Constitution needs special attention. That provision protects, inter alia, the right to a fair 1 Both texts are available in English at the website of the Cyprus Bar Association, www.cyprusbarassociation.org.

89

Professional secrecy of lawyers in Europe

trial. Article 30(2) contemplates that every person, in the determination of their civil rights and obligations or of any criminal charge against them, is entitled to a fair and public hearing within a reasonable time by an independent, impartial and competent court established by law. Article 30(3) lists a number of more specific rights, including the person’s right to have a lawyer of their own choice. In Cyprus v. Carl (no 2) (ACF),2 it was held that the secrecy of communications between advocate and client constituted an integral part of every person’s right to have a lawyer of their own choice as stipulated in Article 30(3)(d) of the Cyprus Constitution, and those communications may not, therefore, be interfered with. Articles 15 and 17 of the Cyprus Constitution are also of relevance. On the one hand, Article 15 protects the right to respect for one’s private and family life. It is contemplated that there will be no interference with the exercise of this right except such as is in accordance with the law and is necessary only in the interests of the security of the republic or in the interests of the constitutional order, of the public safety, of the public order, of the public health or of the public morals, or for the protection of the rights and liberties guaranteed by the Cyprus Constitution to any person. On the other hand, Article 17 guarantees the right to respect for, and the right to the secrecy of, one’s correspondence and other communication. No interference with the exercise of that right is permitted except in accordance with the law and only in cases of convicted and unconvicted prisoners, and of the business correspondence and communication of bankrupts during bankruptcy administration. The above protection covers the advocate–client communications and the individual is therefore able to consult an advocate without fearing that the information provided in confidence will be disclosed. 4. At the level of domestic secondary law, a plethora of pertinent provisions can be found in the Code. That document was drafted by the Council of the Cyprus Bar Association on the basis of Article 24(1)(b) and (l) of the Law, which authorises the Council to adopt the necessary measures in order to regulate issues regarding the practice and ethical duties of professional lawyers. Articles 13(1) through (7) of the Code deal with professional confidentiality in general, Article 21(3) with the duty of confidentiality and the conflict of interest, Article 30(7) with professional secrecy and the examination of files by the Disciplinary Board, and Article 36 with the protection of secrecy in communications with other advocates. Citing selected provisions of the above list is crucial in gaining an informed view of the manner in which Cyprus legislation protects the attorney–client privilege. Article 13(1) of the Code proclaims professional secrecy as a fundamental and primary right and duty of advocates which must be protected by the courts 2 Cyprus v. Carl (no 2) (1995) 2 CLR 232.

90

Cyprus

and any state or public authority. Adherence to the principle of professional confidentiality is a necessary prerequisite in inspiring the client’s trust in the advocate. The latter is therefore bound to act as the custodian of the confidential information entrusted to him or her by the former.3 Advocates must preserve without time limitation the secrecy of all confidential information or evidence which has come to their knowledge in the course of their professional activity.4 It is not permissible for advocates to undertake the case of a new client if there exists the risk of violating the secrecy of information entrusted to them by an old client.5 Finally, when the Advocates’ Disciplinary Board examines documents relating to client funds held by an advocate, it must observe professional secrecy.6 5. At the European level, Articles 6 and 8 of the European Convention on Human Rights, as well as Articles 7 and 47 of the Charter of Fundamental Rights of the European Union, present particular interest. It is recalled that both texts are now legally binding. On the one hand, Article 6 of the Convention and Article 47 of the Charter guarantee the right to a fair trial, which entails a number of more specific elements, such as the right of access to court, the principle of equality of arms, the right of defence and the right of access to a lawyer. It is readily apparent that an individual would not be in a position to enjoy the last of these rights if the information they provide to their advocate could be freely divulged and possibly used to the detriment of their legal position. On the other hand, Article 8 of the Convention and Article 7 of the Charter protect the right to respect for one’s private and family life, home and communications. That right covers the correspondence between the individual and the advocate and shields it from external interference, which can easily compromise its legal status. 6. Any legal (e.g. civil, criminal, administrative) sanction and/or tax charge imposed on the basis of information which has been divulged in violation of the attorney–client privilege is illegal and is therefore considered null and void. Evidence acquired in breach of professional confidentiality will not be admitted to courts.

B

Scope 7. Articles 13(3) and 13(6) of the Code are instrumental in determining the outer boundaries of professional secrecy’s reach. The former provision contemplates that ‘[a]dvocates must, without any time limitation, respect the secrecy of all confidential information or evidence which has come to their knowledge in the course of their professional activity’. The latter provision envisages that 3 Art. 13(2) of the Code. 5 Art. 21(3) of the Code.

4 Art. 13(3) of the Code. 6 Art. 30(7) of the Code.

91

Professional secrecy of lawyers in Europe

[t]he duty of maintaining secrecy includes the protection of confidential information provided by third persons in the context of the advocate’s professional capacity, as well as confidential information arising from conversations necessary in view of reaching an agreement, which later did not materialise. Secrecy also includes the confidential information entrusted by a colleague.

For the purposes of our analysis there are two crucial elements, which need special attention. On the one hand, it appears that the protection afforded by confidentiality is wide-ranging. In practical terms, it covers all information or evidence irrespective of whether it is (i) written or oral; (ii) provided, either directly or indirectly, by the client him- or herself or a third party or another advocate; or (iii) related or not to litigation, either anticipated or pending. That extended scope of protection is in line with the dictates of Articles 15, 17 and 30 of the Cyprus Constitution; Articles 6 and 8 of the European Convention on Human Rights; and Articles 7 and 47 of the Charter of Fundamental Rights of the European Union – the combined effect of which is to avoid confining the attorney–client privilege to litigation-related correspondence and extend it to embrace the entirety of the client’s communications with their lawyer. On the other hand, information is only protected by confidentiality if it was obtained by the advocate in the course of professional activity, e.g. while seeking to provide legal assistance to the client within the scope of litigation or to ascertain the client’s legal position in preparation for or performance of a transaction. The consequential implication of the above requirement is that the correspondence or other information sent or received by a lawyer acting e.g. as liquidator in bankruptcy is not covered by professional secrecy, given that the above function is not performed within the context of the advocate’s professional capacity.

C

Persons subject to the duty of professional secrecy 8. It is recalled (see no 1 above) that the duty of confidentiality is imposed upon regulated legal professionals who are authorised to pursue their professional activities under the professional title of ‘advocate’. Article 13(1) of the Code provides a helping hand in settling the question of who is obliged to respect the confines professional secrecy imposes on the circulation of evidence and information. The provision reads as follows: ‘Professional secrecy is recognised as the fundamental and primary right and obligation of advocates and must be protected by the Court and any State or public authority’. It appears that any institution or body forming part of the state structure is required not only to passively respect the confidentiality constraints but also to actively safeguard them. It follows that prosecution or tax authorities

92

Cyprus

may not in principle rely on privileged information and judges may not consider confidential evidence in their deliberations.

D

Limitations and derogations 9. The Cyprus legal order acknowledges a number of exceptions to and derogations from the attorney–client privilege. In the event of an exception, professional secrecy may not be invoked to resist disclosure of information and lawyers are therefore required to proceed to such disclosure. If a derogation applies, the lawyer is entitled and not obliged to divulge the information in question.

a

Limitations

10. The limitations to professional secrecy in Cyprus can be found in a variety of legal texts of both primary and derivative nature. The conceptual framework of the applicable limitations is set by the Cyprus Constitution. Article 15 refers to a series of considerations which prevail over the confidentiality necessity. Such higher values are: (i) the security of the republic, (ii) the constitutional order, (iii) public safety, (iv) public order, (v) public health, (vi) public morals and (vii) the rights and liberties guaranteed by the Cyprus Constitution to every person. Along the same lines, Article 17 of the Constitution permits interference in the secrecy of one’s communications in cases of (i) convicted and unconvicted prisoners and (ii) business correspondence and communication of bankrupts during bankruptcy administration. At the level of secondary law, Article 44 of Law 188(I)/2007 on the Prevention and Suppression of Money Laundering Activities contemplates that ‘a communication between an advocate and a client for the purposes of committing a prescribed offence shall not constitute privileged information’. That communication is therefore included in the reporting information imposed on lawyers (for a fuller discussion see no 25 below). Additionally, confidentiality does not apply if it is waived by the client whose privilege it is and who can prevent disclosure by the lawyer. A court may therefore rely on a piece of privileged evidence which has been disclosed with the client’s consent. The client may not be prevented from waiving the privilege. Such a restriction would constitute infringement of the right to a fair trial and the right to privacy, as those rights are protected, at national level by the Constitution and at supranational level by the European Convention on Human Rights and the Charter of Fundamental Rights of the European Union. b

Derogations

11. The Code provides two instances where the lawyer is given some latitude in deciding whether to free himself from the confidentiality constraints. 93

Professional secrecy of lawyers in Europe

First, Article 13(6) provides that advocates cannot accept another case without their client’s consent, if such a case touches upon a matter with regard to which the client has disclosed information to them during the provision of professional services. However, even when such consent has been granted, advocates may refuse the case, if they honestly and justifiably believe that, in the exercise of their duties, they would find themselves in an embarrassing situation as a result of the trust demonstrated by the client to whom they had previously given advice regarding the matter in question. Second, Article 13(7) envisages that in the event a client makes an accusation against his advocate, or if the advocate faces criminal or disciplinary prosecution, then the latter is entitled to disclose any confidential information with regard to the accusation or the case, even if pieces of privileged information confided to him by the client would, in this manner, be disclosed.

E

Law firms 12. Matters pertaining to the establishment of law firms in Cyprus are dealt with in Article 6(C) of the Law. Pursuant to Article 6(C)(4), every law firm whose registration with the Registrar of Companies has been approved by the Legal Council is recorded by the Cyprus Bar Association in a special register kept for this purpose, called the ‘Register of Law Firms’. The attorney–client privilege applies to the entirety of the law firm. Article 22 of the Code contemplates that, when advocates exercise the legal profession in the form of a law firm or partnership, the provisions of the Code apply to it as a whole as well as to all of its members. Furthermore, under Article 13(4) of the Code, when advocates exercise the legal profession in the form of a law firm (group/union/partnership), secrecy rules apply to the entire group and to all of its members. That is so irrespective of whether the advocate is a partner or an associate of the firm. No special reference is made to law firms with cost-sharing structures and it could therefore be argued that they too are covered by the aforementioned secrecy rule.

F

Legal assistants and staff 13. Secretaries, support staff and paralegals employed by law firms are not admitted to the Bar and they may not therefore possess the title ‘practising advocate’. Despite the fact that they are not advocates, they still need to adhere to the principle of professional secrecy. Under Article 13(4) of the Code, advocates need to make sure that the members of their staff respect, in the course of their professional activity, attorney–client privilege.

G

External service providers 14. In the event a law firm resorts to external service providers, the legal professional privilege extends to those to whom the services have been outsourced.

94

Cyprus

According to Article 13(4) of the Code, advocates are required to ensure that all persons co-operating with them in the course of their professional activity observe the obligation of secrecy.

H

Multidisciplinary associations 15. It derives from Article 6(C) of the Law that advocates may not form legal professional associations with non-lawyers. They may, of course, co-operate with other professionals in order to serve their clients better. In those cases, advocates are bound by Article 13(4) of the Code to take all the necessary measures with a view to safeguarding the confidentiality of the provided information by the involved parties.

2

History 16. The privileged nature of the lawyer’s communications with clients has been recognised in the independent Republic of Cyprus since its establishment. As already seen (no 3 of this chapter), the Constitution of 1960 contains provisions (Arts. 15, 17 and 30) which safeguard various concepts directly linked to professional secrecy, such as fair trial, respect for one’s private and family life, the secrecy of one’s correspondence and other communication. However, it was not until the adoption of the Code that the question of professional secrecy was squarely addressed. The Council of the Cyprus Bar Association introduced the Code in 2002 upon authorisation granted by the Law. A limited number of rulings by Cyprus courts have thus far dealt with the confidentiality of professional communication between lawyers and clients.

3

Supervision

A

The bar associations 17. Pursuant to Article 4 of the Code, advocates must always bear in mind that they serve justice and co-operate towards its administration. This professional duty is founded on the defence of their clients’ rights as competently as possible, without having any fear or receiving any directions. Furthermore, Article 5 of the Code stipulates that advocates must always uphold the honour and dignity of the legal profession, having in mind that this is a function conceived with the aim of satisfying the need to protect the rights and freedoms of citizens. Advocates have an obligation of devotion to the fundamental principles of the legal profession, which include the furtherance of truth and justice in a spirit of independence, freedom and dignity (Art. 7 of the Code). While performing their tasks along the above-adumbrated lines, advocates are obliged to abide by the dictates of the Code and the legislation in force (Arts. 8 and 9 of the Code, and Art. 15 of the Law). Advocates’ 95

Professional secrecy of lawyers in Europe

compliance with their legal and moral commitments is basically monitored by the local bar associations and the Cyprus Bar Association. In the event they find that an advocate disregards his or her duties, they may launch a complaint with the Advocates’ Disciplinary Board, which is empowered to initiate disciplinary proceedings and impose disciplinary penalties, if it thinks fit.

B

The courts 18. In addition to the supervisory function of the Advocates’ Disciplinary Board, courts are another channel through which complaints about the lawfulness of a lawyer’s conduct may be addressed. That is, e.g., the case where an action for damages is brought before the competent court by a client alleging violation of professional secrecy on the part of their lawyer.

4

Sanctions

A

Proceedings and sanctions

a

Disciplinary proceedings and sanctions

19. Issues pertaining to the disciplinary control of lawyers are regulated in Part IV of the Law (Arts. 15–17). Disciplinary overview of the legal profession in Cyprus is conducted by a seven-member Disciplinary Board, which is composed of the Attorney General of the Republic as chairman, the elected chairman of the Cyprus Bar Association as ex officio member, and five lawyers as elected members, two of whom must have not less than fifteen years of practice. In case of absence or incapacity of the Attorney General of the Republic or the Deputy Attorney General of the Republic, the person who will act as chairman of the Disciplinary Board will be the elected chairman of the Cyprus Bar Association and, in case of absence or incapacity of the latter, the elected member with the greatest seniority in the exercise of the legal profession. Disciplinary proceedings may be commenced by the Attorney General of the Republic or by the Disciplinary Board (i) on their own initiative, (ii) following a complaint by any court or the Cyprus Bar Association or any local bar association and (iii) following a complaint by any person aggrieved by a lawyer’s conduct under the condition that the Disciplinary Board has consented to its submission.7 The investigation of a case is carried out by the Disciplinary Board or, alternatively, by a smaller team of three composed of the Attorney General of 7 It has been consistently held that the Disciplinary Board’s refusal to consent is not challengeable before courts; see in that respect Pattichis v. KK (lawyer) (2006) 1 JSC 957.

96

Cyprus

the Republic or the elected chairman of the Cyprus Bar Association as chairman and two of the elected members of the Disciplinary Board. If the preliminary investigation produces no signs of misconduct, the proceedings will cease. If, however, a well-founded case of misbehaviour seems to emerge, then the proceedings will carry on, and the lawyer under investigation will be formally informed of the complaint and will be given the opportunity to be heard and to produce evidence in defence. Normally the lawyer’s comments on the case are forwarded for response to the complainant. 20. If the investigation leads to the conclusion that the lawyer is guilty of disgraceful, fraudulent or unprofessional conduct, or has acted or behaved in a manner contravening or conflicting with the provisions of the Code, the Disciplinary Board may impose any of the following disciplinary sanctions (presented in order of severity): 1. removal of the lawyer’s name from the Register of Advocates, 2. suspension from the practice of law for such a period as the Disciplinary Board thinks fit, 3. imposition of a fine not exceeding €1,700, which will be deposited with the Fund of the Cyprus Bar Association, 4. warning or reprimand to the lawyer, or 5. payment of the costs incurred in the disciplinary proceedings. The decision of the Disciplinary Board convicting or acquitting the lawyer may be appealed to the Supreme Court.8 More precisely, within two months of the date the decision of the Disciplinary Board is issued, the Attorney General of the Republic, the convicted lawyer or the complainant may appeal to the Supreme Court, which has the power to confirm, amend or annul the decision of the Disciplinary Board or even make such other order as it may think fit. As to the manner in which disciplinary sanctions are publicised, the Disciplinary Board is obliged to send a copy of its decision to the Chief Registrar, who must make the necessary entries in the Register of Advocates, only, however, after the deadline for the appeal has expired or following the Supreme Court’s ruling on the appeal. It should be noted that in the event the most severe disciplinary sanction is imposed, namely removal of the lawyer’s name from the Register of Advocates, the Disciplinary Board may, if it finds it appropriate, order the restoration of the name to the Register. That can only be done if five years have already elapsed from the imposition of the sanction. If such a restoration is ordered, the Chief Registrar is obliged to reinsert the lawyer’s name in the Register of Advocates and publish the relevant notice in the Official Gazette of the Republic of Cyprus. 8 Georgiou v. Disciplinary Board of Advocates (1999) 1 JSC 384.

97

Professional secrecy of lawyers in Europe

b

Criminal proceedings and sanctions

21. Violation of professional secrecy is not defined as a crime by the Penal Code Cap. 154 of Cyprus. No criminal proceedings can therefore be initiated against, and by extension no criminal sanctions can be imposed on, the recalcitrant lawyer. c

Civil proceedings and damages

22. Breach of professional confidentiality on the part of the lawyer can lead to action for damages launched by the aggrieved client. As usual, for the action to succeed, three requirements must concurrently be met: illegality, damage and causal link between the two. The burden of proof rests on the applicant–client.

B

Relationship between criminal sanctions and disciplinary sanctions 23. The question of the precise relationship between criminal and disciplinary sanctions is not applicable to Cyprus given the absence of criminal ramifications for lawyers in cases of breach of professional confidentiality.

5

Duty to provide information to the authorities

A

Money laundering and terrorism 24. Directive 2005/60/EC of the European Parliament and of the Council of 26 October 2005 on the prevention of the use of the financial system for the purpose of money laundering and terrorist financing,9 as amended, has been transposed into the Cypriot legal order by way of Law 188(I)/2007 on the Prevention and Suppression of Money Laundering Activities (hereinafter the AML Law),10 as amended. By virtue of Article 59(4) of that law, the Council of the Cyprus Bar Association issued a directive (hereinafter the CBA Directive) providing anti-money-laundering guidance to advocates practising in Cyprus.11 Advocates are required to avoid committing the statutory criminal offences defined in Articles 3 et seq. of the AML Law. Those who carry out the activities and services prescribed in Article 2 of the AML Law also have a legal obligation to implement certain measures to prevent money laundering and 9 OJ L 309, 25 November 2005, 15–36. 10 Law no 188(I)/2007, Official Gazette of the Republic of Cyprus 2007, issue no 4154, Appendix 1, Part I, of 31 December 2007. The law took effect on 1 January 2008. It consolidated and amended Law no 61(I) of 1996 on the Prevention and Suppression of Money Laundering Activities Law, as amended by Laws no 25(I) of 1997, 41(I) of 1998, 120(I) of 2000, 18(I) of 2003 and 185(I) of 2004. Law 188(I)/2007 was amended in June 2010 by Law no 58(1)/2010. 11 The full text of the directive issued by the Council of the Cyprus Bar Association is available in Greek and English at www.cyprusbarassociation.org. The Council of the Cyprus Bar Association has been designated the anti-money laundering regulator for advocates.

98

Cyprus

terrorist financing. The services and activities which appear to be more relevant to lawyers are the purchase and sale of real estate or business entities; the management of client money, securities or other assets; the opening or management of bank, savings or securities accounts; the creation, operation or management of trust companies, businesses and similar structures; and auditing, accounting, bookkeeping and tax advice. Advocates who undertake activities and services of the kind described above must establish and maintain procedures and controls with a view to making sure that money laundering and terrorist financing are prevented. In particular, advocates must follow certain procedures, which include client identification (Arts. 58 and 61–5 of the AML Law and Art. 4 of the CBA Directive), record keeping (Arts. 58 and 68 of the AML Law and Art. 5 of the CBA Directive) and recognition and reporting of suspicious transactions (Arts. 26 and 27 of the AML Law and Art. 6 of the CBA Directive). The reporting obligation is of particular interest for the purposes of our analysis and merits therefore particular attention. 25. Pursuant to Articles 27 and 69 of the AML Law, advocates must report to the Unit for Combating Money Laundering (MOKAS) at the Attorney General’s Office suspicious activities that they know or suspect to be connected with criminal activities and that come to their knowledge in the course of their practice. More precisely, Article 27(1) of the AML Law contemplates that a person having any knowledge or suspicion that another person is involved in a money laundering or terrorist financing offence and who has become aware of the information on which the knowledge or reasonable suspicion is based in the course of his occupation, profession or business, commits an offence in case he does not promptly disclose such information to MOKAS as soon as reasonably practicable.

It is important to note that the attorney–client privilege may be invoked to avoid the reporting obligation. According to Article 27(2) of the AML Law, ‘failure to disclose information which the lawyer has become aware of and which is privileged information does not constitute an offence’. The definition of ‘privileged information’ is given in Article 44 of the AML Law. That provision stipulates that privileged information means: Communication between an advocate and a client for the purpose of obtaining professional legal advice or professional legal services in relation to legal proceedings, whether these have commenced or not, which would in any legal proceedings be protected from disclosure by virtue of the privilege of confidentiality under the law in force at the relevant time; . . . a communication between an advocate and a client for the purposes of committing a prescribed offence shall not constitute privileged information.

99

Professional secrecy of lawyers in Europe

Advocates are not, therefore, bound to disclose privileged information as that concept is explicated above. It is worth adding that, by virtue of Article 48 of the AML Law, advocates reporting suspicions of money laundering or terrorist financing enjoy immunity from claims for breach of client confidentiality. That protection extends only to the disclosure of the suspicion and to the information on which that suspicion is based (for further details on that point see Art. 2(30) of the CBA Directive).

B

Collective settlement of debts 26. Bankruptcy of natural persons is regulated by the Bankruptcy Law Cap. 5. Insolvency of legal persons is governed by the Companies Law Cap. 113. With respect to personal bankruptcy, the relevant procedures can be initiated either by a creditor having a provable debt or by the debtor him- or herself. In both cases the debtor is required to provide a detailed statement of his or her affairs which will be accompanied by an affidavit listing his or her debts; the names, addresses and professions of creditors; the securities held by creditors; the dates when the securities were given; and any other relevant information.12 It is arguable that the lawyer of the debtor in possession of the above information may not divulge it, even if asked to do so, on the basis of professional secrecy. Regarding corporate insolvencies, Article 203 of the Companies Law contemplates two ways of winding up: (i) compulsory winding up by the court and (ii) voluntary winding up, which is further subdivided into members’ winding up and creditors’ winding up. In all the above scenarios, there exist a number of provisions to the effect that individuals are required to provide to the liquidator or the competent court all the necessary information concerning the current state of affairs of the company, including its assets, debts and liabilities; the names, residences and occupations of its creditors; the securities held by them; etc.13 It appears that the attorney–client privilege prevails over the aforementioned obligation and lawyers may not therefore be forced to provide information about their client’s assets, liabilities etc.14

12 See in that respect Arts. 8 and 15 of the Bankruptcy Law Cap. 5. 13 Of particular interest are Arts. 224, 255, 307, 341 of the Companies Law Cap. 113. 14 In support of that thesis, one could invoke by analogy Art. 381 of the Companies Law Cap. 113, which reads as follows: ‘Where proceedings are instituted under this Law against any person by or on behalf of the Attorney General, nothing in this Law shall be taken to require any person who has acted as advocate for the defendant to disclose any privileged communication made to him in that capacity’.

100

Cyprus

6

Treatment of a lawyer’s documents and correspondence in the context of judicial investigations 27. In the course of an investigation, the authorities may come across documents and correspondence which contain privileged information. The manner in which that information should be treated is outlined in no 28 below.

7

Search of a lawyer’s office 28. There are no special norms regulating the search of a lawyer’s office. It follows that the usual provisions of the Cyprus Criminal Procedure Law Cap. 155 pertaining to entry and search of premises apply. Articles 27–32 of the Criminal Procedure Law are of particular relevance to our analysis. When the judge is satisfied that there is reasonable cause to believe that in a specific place there exists evidence that a crime has been committed, he may issue a warrant authorising the competent person to search the place in order to seize and bring any such evidence before the judge who issued the warrant or any other judge. When, upon the execution of a search warrant, anything is seized and brought before the judiciary, such thing may be detained by such person as the judge may direct, reasonable care being always taken for its preservation until the conclusion of any criminal proceedings which may be had in respect thereof. The search of a lawyer’s office is normally conducted by police officers and the presence of a representative of a bar association is not contemplated. The search and seizure should be limited to files relating to clients under investigation. It is arguable that, if privileged communications are seized and brought before the judge, he should, first, exclude them from the file of the case and, second, abstain from deliberating on the case, if he has gone through the information, in order to safeguard the right to a fair trial as contemplated by the Cyprus Constitution, the European Convention on Human Rights and the Charter of Fundamental Rights of the European Union.

8

Tapping of telephone conversations with a lawyer 29. The tapping of telephone conversations is regulated by the Protection of Confidentiality of Private Communications (Interception of Conversations) Law of 1996 (hereainafter the Confidentiality Law).15 A general, albeit not absolute, prohibition on the interception of private communications is 15 Law no 92(I)/1996, Official Gazette of the Republic of Cyprus 1996, issue no 3097, Appendix 1, Part I, of 8 November 1996.

101

Professional secrecy of lawyers in Europe

contemplated in Article 3 of the Confidentiality Law, which punishes offenders with imprisonment of up to three years. Under certain circumstances interception is, however, allowed. In procedural terms, the Chief of the Cyprus police or the Director of the Cyprus Customs and Excise Department asks the Attorney General to apply to the competent district court for a warrant. In substantive terms, the court may issue the requested warrant authorising the interception, if it is satisfied that there exists reasonable cause to believe that the person whose communications will be intercepted is committing, has committed or is expected to commit a crime, as that concept is defined in Article 2 of the Confidentiality Law, and that the communication in question is linked to the crime.16 The Confidentiality Law does not contain any reference to professional secrecy. It is arguable that information falling within the ambit of the attorney–client privilege must remain confidential and should not, therefore, be used by any authority when intercepted. However, it appears that tapping a lawyer’s communications is perfectly legal, if it is not the client but the lawyer himself who is suspected of having committed a crime.

9

The lawyer as witness 30. The appearance of an individual as a witness in a case in which they act as advocate is regulated by Article 13(5) of the Code. As a rule, an advocate in a case is not allowed to be sworn in and give evidence in the same case. It follows that witness and advocate are two mutually exclusive capacities. The legal professional will either abstain from giving evidence and act as advocate, or give evidence and refrain from acting as advocate. In the latter scenario, the individual will appear before the court with a fully independent opinion and may refuse to answer any question which may tend to lead him to disclosure or violation of professional secrecy.17 Witness–advocate incompatibility only applies to matters in which the legal professional acted as advocate. Consequently, an individual who is called to give evidence on issues in which they did not act as advocate may not rely on the attorney–client privilege.

16 See Art. 8 of the Confidentiality Law for the detailed list of requirements which need to be met for the warrant to be issued. 17 See in that respect Mavrovouniotis v. Nicolaides (1933) 14 CLR 272; Erotocritou v. Soutsos (1965) 1 CLR 162; Ahapittas v. Roc-Chick Ltd (1968) CLR 1; Ioannides v. Sparsi (1979) 2 JSC 186; Ousmianis v. Nicolaou (1981) 2 JSC 314 (District Court); In re Efthimiou (1987) 1 CLR 329.

102

Cyprus

10

The lawyer and the press 31. Advocates may not disclose to the press confidential information they obtained from their clients. Additionally, pursuant to Article 19(3) of the Code, advocates must not give excessive interviews to the press or to the media in general, or cause or allow the publication of evidence or information in respect of any case pending before the court or any other case. It is apparent that the rationale of that provision is to make sure that the trial is duly conducted within the courtroom and not through the media.

11

Powers of the tax administration and other authorities 32. Under Cyprus law, no tax authority is empowered to force an advocate to disclose privileged information. It is interesting to note in that regard the 2008 amendment of the Assessment and Collection of Taxes Law18 in order to incorporate the exchange-of-information provisions of Article 26 of the OECD Model Tax Convention of 2005 in double taxation agreements which have been concluded between Cyprus and other jurisdictions. Under the amended law, in order to tackle tax evasion the Cyprus tax authorities are entitled to pass on to other contracting states information relating to any natural or legal person. To fulfil their information-sharing obligations, the Cyprus authorities may obtain in any form and from any person books, records, documents, data and information under the control, possession or jurisdiction of that person regardless of any other legislative provisions of secrecy, including bank or professional secrecy laws.19 However, legal professional privilege is explicitly maintained and any information which has become known in the course of communications between a practising advocate and a client may not be disclosed to any third parties, including the tax authorities.

12

State security service 33. The Central Intelligence Service (hereinafter CIS, in Greek Kentrikž Uphres©a PlhroforiÛn) forms part of the Cyprus police and functions within a legal order governed by the rule of law. Its operations are regulated by a set of norms, including the Constitution of the Republic of Cyprus, Police

18 Law no 4/1978, Official Gazette of the Republic of Cyprus 1978, issue no 1424 of 10 February 1978. 19 Art. 9(a) of the Assessment and Collection of Taxes Law, as amended. The text is available – only in Greek, however – at www.mof.gov.cy/mof/ird/ird.nsf/dmllaws gr/dmllaws gr?OpenDocument.

103

Professional secrecy of lawyers in Europe

Law 73(I)/2004,20 the Police Regulations, the Police Standing Orders, Evidence Law Cap. 9, the Criminal Code Cap. 154, the Criminal Procedure Law Cap. 155 and the Processing of Personal Data (Protection of the Individual) Law 138(I)/2001.21 The CIS is required to respect privileged communication. Any investigation involving disclosure of privileged information is only permitted when it is authorised by law. It follows that tapping of a lawyer’s telephone communications can only take place in accordance with the procedural and substantive safeguards adumbrated in no 29 of the present chapter; the search of a lawyer’s house or office must comply with the norms described in no 28; a lawyer’s documents and correspondence ought to be treated along the lines drawn in no 28. It is to be stressed that evidence will not be admissible in court if it has been acquired in violation of the Processing of Personal Data (Protection of the Individual) Law 138(I)/2001, the Law Regulating Electronic Communications and Postal Services of 200422 and the Confidentiality Law. 20 Law 73(I)/2004, Official Gazette of the Republic of Cyprus 2004, issue no 3834, Appendix 1, Part I, of 8 April 2004. 21 Law no 138(I)/2001, Official Gazette of the Republic of Cyprus 2001, issue no 3549, Appendix 1, Part I, of 23 November 2001. 22 Law no 112(I)/2004, Official Gazette of the Republic of Cyprus 2004, issue no 3850, Appendix 1, Part I, of 30 April 2004.

104

7 Czech Republic ´ petr cˇ ap Chairman of the Disciplinary Commission Czech Bar Association

Preliminary note 106 1 Scope of and limitations on professional secrecy 106 A Statutory basis and implications 106 B Scope 107 C Persons subject to the duty of professional secrecy 107 D Limitations and derogations 108 a Limitations 108 b Derogations 109 E Law firms 109 F Legal assistants and staff 110 G External service providers 110 H Multidisciplinary associations 111 2 History 111 3 Supervision 112 A The Bar Association 112 B The courts 113 4 Sanctions 113 A Proceedings and sanctions 113 a Disciplinary proceedings and sanctions 113 b Criminal proceedings and sanctions 116 c Civil proceedings and damages 116 B Relationship between criminal sanctions and disciplinary sanctions 117 5 Duty to provide information to the authorities 117 A Money laundering and terrorism 117 6 Treatment of a lawyer’s documents and correspondence in the context of judicial investigations 118 7 Search of a lawyer’s office 119 8 Tapping of telephone conversations with a lawyer 120 9 The lawyer as witness 120 10 The lawyer and the press 121 11 Powers of the tax administration and other authorities 121 12 State security service 122

105

Professional secrecy of lawyers in Europe

Preliminary note 1. A number of law professions operate in the Czech Republic. The only law professionals entitled to provide legal services in all branches of law are lawyers. All lawyers in the Czech Republic are members of the Czech Bar Association (hereafter the Bar), membership in which is obligatory. At present, nearly 9,500 lawyers actively exercise the legal profession in the Czech Republic. Further, some 3,300 legal assistants registered in the register kept by the Bar practise. Legal assistants are employees of a lawyer or a law firm. 2. In certain areas, the law entrusts also notaries, court executors, patent representatives and tax advisers with the right to provide legal services, whereas the last two named groups comprise also non-lawyers. A separate group comprises so-called in-house lawyers, who are employees of legal entities the business activity of which does not include provision of legal services. These employees, as jurists, should work exclusively for their employers. Of course, jurists are also active as judges, state prosecutors or jurists of organs and institutions of the state or regional self-governmental units (regions, municipalities). A number of these law professions are also to various extents bound by the duty of professional secrecy. 3. Only lawyers – members of the Bar – are allowed to defend in criminal proceedings. 4. The object of this contribution is expressly the duty of professional secrecy applicable to lawyers, their employees and possibly persons whose conduct in a specific case relates to the exercise of the legal profession or the activities of the Bar. The term ‘lawyer’ in a number of places in this contribution includes all persons mentioned in the preceding sentence.

1

Scope of and limitations on professional secrecy

A

Statutory basis and implications 5. The duty of professional secrecy is regulated in considerable detail in the legal order of the Czech Republic. The basic standard is Article 21 of the Act on the Legal Profession, no 85/1996 Coll.,1 in the effective wording,2 where the first paragraph states, ‘A lawyer shall be obliged to preserve professional secrecy regarding any facts known to him in connection with his provision of 1 The abbreviation ‘Coll.’ is commonly used for the designation of the Collection of Laws of the Czech Republic in which, in particular, legal regulations with national force are promulgated in effective wording in compliance with Act no 309/1999 Coll. 2 Act no 85/1996 Coll., effective as of 1 July 1996, replaced the original Act on the Legal Profession, no 128/1990 Coll., being the first Act regulating the provision of legal services after the fall of Communism in 1989.

106

Czech Republic

legal services.’ In other paragraphs of this provision exceptions are specified when the duty of professional secrecy is broken or possibly limited under precisely defined conditions (see no 8 et seq. below).

B

Scope 6. As follows from the quoted section of Article 21, paragraph 1, of the Act on the Legal Profession, the duty of professional secrecy is absolute in the case of information acquired by a lawyer in the course of his or her provision of legal services. It does not matter whether such information is sensitive or, on the other hand, incapable of causing detriment. The duty of professional secrecy applies to information acquired in any manner – in writing, orally, through a lawyer’s own activity, and so on. A lawyer may not report the commission of a crime by a client if such information was acquired in the course of the provision of legal services,3 not even in the event that the failure to report such crime would otherwise constitute a separate body of the crime specified in Article 368, paragraph 1, of the Criminal Code.4 The first sentence of the third paragraph of Article 368 of the Criminal Code literally provides, ‘The reporting duty under paragraph 1 shall not apply to a lawyer or his employee who learns about commission of a crime in connection with the exercise of the legal profession or legal practice.’ The duty of professional secrecy shall survive even after deletion from the Register of Lawyers.

C

Persons subject to the duty of professional secrecy 7. The duty of professional secrecy shall apply also to employees of lawyers, as well as other persons involved in provision of legal services together with a lawyer, in particular in handling matters of lawyers. These are in particular legal assistants, assistants and secretaries. Similarly, the duty of professional secrecy is binding on members of the Bar organs and their employees, as well as all persons participating in disciplinary proceedings, including lawyers authorised by the chairman of the Supervisory Board of the Bar to perform preparatory acts in order to verify whether a disciplinary wrong was committed. 3 Filing a report on a crime committed by one’s own client regarding a crime about which a lawyer learnt in connection with the provision of legal services to said client constitutes a serious breach of the lawyer’s duty, regardless of whether it happened after the end of representation. Decision no 4/2005 of the Collection of Disciplinary Decisions of the Czech Bar Association (hereafter CDD). 4 Act no 40/2009 Coll., in the effective wording, in force as of 1 January 2010, replacing the Criminal Code, no 140/1961 Coll.

107

Professional secrecy of lawyers in Europe

D

Limitations and derogations

a

Limitations

8. A lawyer may not claim the duty of professional secrecy if by compliance with that duty he would breach the obligation to frustrate commission of a crime as specified in Article 367 of the Criminal Code.5 However, even in such case a lawyer is obliged to consider whether he or she learnt about preparation or commission of the crime in an actually reliable manner and whether he or she could not frustrate the client’s intent to commit or accomplish the crime in a manner other than by breaching the duty of professional secrecy. Thus, if he or she manages to avert a client from the intent to commit a crime by using other means, e.g. by taking away a murder weapon, by psychological influence or by force, a lawyer is not entitled to breach the duty of professional secrecy and possibly warn a potential victim or report the issue to police authorities. 9. Within the provision of legal services, the duty of professional secrecy does not apply to a lawyer authorising another lawyer, a legal assistant or another person to perform acts of individual legal service for a client. However, it is necessary that such authorised person is him- or herself obliged to comply with the duty of professional secrecy. 10. A lawyer is not bound by the duty of professional secrecy to the degree necessary for proceedings conducted before a court or another authority, if the object of the proceedings is a dispute between a lawyer him- or herself and a client or the client’s legal successor. However, in such a case a lawyer is always obliged to consider whether provision of relevant information to a court or another authority is necessary for the result of the proceedings concerned. 11. A lawyer is not bound by the duty of professional secrecy in proceedings before organs of the Bar. This is the case in procedures to delete from the Register of Lawyers or to suspend before the Board of Directors of the Bar, and in relation to decisions of the President of the Bar on determination of a lawyer’s successor in case of cessation of his authorisation to exercise the legal profession, or in the case of his deletion from the Register of Lawyers or suspension from the exercise of the legal profession. 12. Equally, a lawyer may not claim the duty of professional secrecy within disciplinary proceedings and towards a lawyer authorised by the president of the Bar to perform preparatory acts for the verification of whether a disciplinary wrong has been committed. Similarly, within judicial proceedings concerning an action against a decision of the Bar, members of the organs of the Bar, its employees and lawyers

5 These are mostly serious crimes to which a sentence of imprisonment of several years applies.

108

Czech Republic

authorised by the chairman of the Supervisory Board of the Bar to perform preparatory acts for the verification of whether a disciplinary wrong has been committed are not bound by the duty of professional secrecy to the degree necessary for such proceedings. Members of the organs of the Bar and its employees are not bound by the duty of professional secrecy to the degree necessary for compliance with reporting duties concerning facts specified by the law and relating to foreign lawyers practising in the Czech Republic. b

Derogations

13. The duty of professional secrecy is the institution protecting a client and it is one of the foundation stones of necessary trust between a lawyer and a client. A client, unlike a lawyer, may decide whether a lawyer is or is not bound by the duty of professional secrecy. That is to say that it is only the client who ever has the ability to release a lawyer from the duty of professional secrecy in relation to all subjects. A lawyer’s release from the duty of professional secrecy shall be made in a written form and shall be addressed to the lawyer concerned. Within proceedings before a court, this can also be done orally into a protocol. Release from the duty of professional secrecy may be full or partial, i.e. in relation to certain facts or events only. 14. The only persons/entities that may release a lawyer from the duty of professional secrecy to the same degree after the death of a client or the dissolution of a client (in the case of a legal entity) are the legal successors of the client. Should a client have several legal successors, e.g. heirs, the approval of all legal successors of a client is necessary to release a lawyer from the duty of professional secrecy. The consent of the majority of legal successors is not enough. 15. Even if a lawyer is released from the duty of professional secrecy, he or she is obliged to comply with this duty if it is clear from circumstances of the case that the client or legal successor has released the lawyer from this duty under duress or distress.

E

Law firms 16. Joint provision of legal services by several lawyers is carried out in several forms in the Czech Republic. Lawyers may exercise the legal profession jointly within the so-called association without legal personality formed on the basis of a contract under the Civil Code.6 6 Act no 40/1964 Coll., in the effective wording, which should be replaced by the so-called New Civil Code, probably in 2013 or 2014.

109

Professional secrecy of lawyers in Europe

17. Lawyers may operate jointly as members of a law firm established under the Commercial Code,7 in particular as a general partnership, a limited partnership or a limited-liability company, if the object of business activity of such a company is solely the exercise of the legal profession and its members are solely lawyers. 18. As of October 2009, lawyers may permanently provide legal services to other independent lawyers or to law firms on the basis of an agreement on permanent co-operation specifying conditions for such a lawyers’ association. Lawyers in the Czech Republic may now exercise the legal profession also as employees within the employment relationship with another lawyer or law firm. 19. Regardless of the type of legal form used by a lawyer for the exercise of the legal profession, all provisions concerning the duty of professional secrecy shall apply. When a client concludes a contract on the provision of legal services with a law firm, it is possible to deduce from this fact that the client agrees to the transfer of necessary information, subject to the duty of professional secrecy, between member lawyers, within the legal assistance provided to the client. All lawyers from the law firm who receive relevant information are of course bound by the duty of professional secrecy to the full degree.

F

Legal assistants and staff 20. The duty of professional secrecy applies also to employees of a lawyer, as well as to other persons participating with a lawyer and to the same extent in the provision of legal services. This provision is a logical expression of the fact that in the course of a lawyer’s representing a client these persons often learn information to which the duty of professional secrecy applies.

G

External service providers 21. If a lawyer uses external companies for some activities relating to the exercise of the legal profession or the management of a law firm, he or she is obliged to ensure that such persons do not acquire information subject to the duty of professional secrecy without the client’s consent.8 7 Act no 513/1991 Coll., in the effective wording, which also should be replaced by the so-called New Civil Code, probably in 2013 or 2014. 8 It is inadmissible for a lawyer to enable employees of another private person or entity to perform work for him that relates, even partially, to the exercise of the legal profession, or to handle a client’s matters. Decision no 8/2007 CDD.

110

Czech Republic

H

Multidisciplinary associations 22. Subject to the client’s consent, a lawyer may co-operate with experts specialising in other disciplines who are not jurists. A typical example is a sworn expert specialising in the transport sector who considers, from a technical point of view, the possible course of a road traffic accident a party to which is the client. In order to provide such an expert with information learnt in the course of the provision of legal services, a lawyer must obtain the client’s consent.

2

History 23. The duty of professional secrecy has applied in the Czech lands throughout recent history. Should we consider the year 1918, when the independent Czechoslovak Republic was established after the dissolution of the AustroHungarian Empire, as the initial period of historical overview, then in the period until 1938 rules fully recognised in democratic legal systems applied. During that time the Code of the Legal Profession no 96/1868 of the Imperial Laws applied practically without change.9 According to that code a lawyer was obliged to keep secret all facts entrusted to him. It was possible to release him from this duty when he testified as a witness within civil or criminal proceedings. However, he was not obliged to submit information to a civil judge (species facti). 24. During the Nazi Protectorate from 1939 to 1945 and during the regime of the Communist Party from 1948 to 1989, a lawyer’s duty of professional secrecy was weakened and broken on ideological and power grounds. For example, according to Article 4 of the Act on the Legal Profession, no 322/1948 Coll., it was possible for the minister of justice to release a lawyer from the duty of professional secrecy on the grounds of important state interest. According to the same provision, a lawyer could not claim the duty of professional secrecy in the case of the reporting duty according to the Act no 231/1948 Coll. on the Protection of the People’s Democratic Republic. The duty of professional secrecy did not apply to employees of the newly established regional lawyers’ associations who were non-lawyers, i.e. in particular to administrative staff who could regularly be in contact with information provided by a client to a lawyer. The Act on the Legal Profession, no 114/1951 Coll., similarly stipulated that a lawyer could not claim the duty of professional secrecy in the case of crimes in respect of which the reporting duty applied according to the Criminal Code 9 This Act, including partial amendments, was valid on the territory of the current Czech Republic from 1 January 1869 to 31 December 1948. In Austria its base is valid to this day.

111

Professional secrecy of lawyers in Europe

no 86/1950 Coll. However, this Act at least imposed the duty of professional secrecy also on other employees of the legal profession. In 1963, the new Act on the Legal Profession was adopted under no 57 Coll., and introduced significant changes in the area of the duty of professional secrecy, consisting in particular in the fact that a lawyer was also bound by this duty in the case of reporting serious crimes and could only not defer to it if it would breach the statutory duty to frustrate a crime specified in Article 167 of the Criminal Code.10 A similar regulation – regarding the duty to frustrate commission of a crime – applies also at present, and is incorporated in Article 21, paragraph 7, of the Act on the Legal Profession. However, also in this case a lawyer may comply with his mandatory duty to frustrate a crime without concurrently breaching the duty of professional secrecy. It depends on the specific situation. If a lawyer, by his or her active conduct, prevents a client from committing an intended crime, then he complies with his duty to frustrate commission of a crime, and his statutory duty of professional secrecy remains. Another important change introduced by the Act on the Legal Profession of 1963 was the transfer of the right to release a lawyer from the duty of professional secrecy on the grounds of important state interest from the minister of justice to the then Headquarters of the Czechoslovak Legal Profession. The Act on the Legal Profession, no 118/1975 Coll., was, regarding the duty of professional secrecy, identical in its main features to the Act on the Legal Profession presently valid. However, the Committee of the Headquarters of the Czechoslovak Legal Profession was able to release a lawyer from the duty of professional secrecy in cases of important state interest. It should be mentioned that this never actually happened. 25. The first Act on the Legal Profession adopted after the fall of Communism11 contained in its basic points provisions identical to those of the current Act on the Legal Profession. In compliance with democratic principles, the possibility that a lawyer could be released from the duty of professional secrecy on the grounds of protection of the state or another public interest by a person other than a client, i.e. by the state or another authority, was deleted.

3

Supervision

A

The Bar Association 26. Lawyers are independent when practising. They are bound by legal regulations and, within limits, by clients’ dispositions. Lawyers provide legal services in respect of all matters. A certain limitation in this area applies to so-called 10 Act no 140/1961 Coll., then valid. 11 Act no 128/1990 Coll., effective as of 1 July 1990.

112

Czech Republic

foreign lawyers – European lawyers registered in the Register of Lawyers kept by the Bar. Analysis of these specifics is outside the frame of this chapter. When exercising the legal profession, a lawyer is obliged to proceed in a manner not impairing the dignity of the legal profession. For these purposes, he or she is obliged to comply with Acts and other generally binding legal regulations as well as professional regulations issued by the Bar, in particular the Rules of Professional Ethics and competition rules. Control of compliance with these regulations is entrusted expressly to the Bar, carrying out such control through its organs specified in the Act on the Legal Profession. As for the duty of professional secrecy, its breach is, from a disciplinary point of view, discussed expressly within the disciplinary proceedings, or possibly during examinations preceding such proceedings (see no 5 of this chapter).

B

The courts 27. The courts are competent to hear actions filed by a lawyer against a decision of the Appellate Disciplinary Tribunal of the Bar finding a lawyer guilty of disciplinary wrong. These judicial proceedings are conducted in accordance with the Judicial Administrative Procedure Code, whereas in the first instance a relevant Municipal Court in Prague is competent to decide. A cassation complaint against its final decision is admissible and would be considered by the Supreme Administrative Court seated in Brno. A constitutional complaint may be filed against a final decision of the Supreme Administrative Court and would be heard by the Constitutional Court also seated in Brno.

4

Sanctions

A

Proceedings and sanctions

a

Disciplinary proceedings and sanctions

28. Breach of professional secrecy by a lawyer is one of the more serious breaches of a lawyer’s duties and constitutes a disciplinary wrong in the meaning of Article 32, paragraph 2, of the Act on the Legal Profession.12 Should the Bar learn about such a breach by a lawyer, it has the possibility to sanction such a lawyer under disciplinary proceedings. However, such proceedings are preceded by examination whether the conditions for filing a disciplinary action are met. The examination is carried out by the Supervision Department of the Bar and the Supervisory Board of the Bar. Both are controlled by the chairman of the Supervisory Board of the Bar, being one of the two disciplinary plaintiffs determined by law (the other being the minister of justice). Should a disciplinary 12 ‘Disciplinary wrong is a serious or repeated deliberate breach of duties determined for a lawyer or a legal assistant by this Act or a special Act or a professional regulation.’

113

Professional secrecy of lawyers in Europe

plaintiff arrive at the conclusion that a lawyer has committed a disciplinary wrong that is not statute-barred, he shall file a disciplinary action addressed to the chairman of the Disciplinary Commission of the Bar. It is necessary to say at this point that a disciplinary action must be filed within six months of the day on which a disciplinary plaintiff learnt of the disciplinary wrong, yet no later than two years from the day on which the disciplinary wrong occurred. The subjective six-month period does not include the time during which a lawyer, based on the authorisation of the chairman of the Supervisory Board, was making preparatory acts necessary for verification whether the disciplinary wrong occurred. However, such a period may not exceed two months. The Disciplinary Commission of the Bar comprises eighty-three members elected by the Assembly of the Bar for four years.13 Re-election is possible without limitation of the number of electoral terms. The Disciplinary Commission elects from among its members its chairman and (in this electoral term) three deputy chairmen. Members of the Disciplinary Commission are divided into permanent three-member tribunals appointed by the chairman of the Disciplinary Commission to hear disciplinary actions. A disciplinary tribunal appointed by the chairman of the Disciplinary Commission of the Bar shall hear such disciplinary action in accordance with the Disciplinary Code for Lawyers.14 Should the disciplinary tribunal arrive at the conclusion that in breaching the duty of professional secrecy a lawyer has committed a disciplinary wrong, it may impose one of the following disciplinary measures on such lawyer: reprehension, public reprehension, a fine of up to CZK 800,00015 (approx. €32,000), temporary prohibition from exercising the legal profession for a period between six months and three years, or deletion from the Register of Lawyers for a period of at least five years. Disciplinary proceedings similarly apply to legal assistants, on whom the disciplinary tribunal may impose similar disciplinary measures; however, the fine may amount to a maximum of CZK 160,000, and temporary prohibition from practising as a legal assistant may not be imposed. 29. For the sake of completeness, it is fair to say that it is also possible to waive imposition of disciplinary measures in the case of a less serious breach of the duty of a lawyer or a legal assistant, if the hearing of the disciplinary wrong itself can be considered sufficient. 13 The 5th Assembly of the Bar was held in October 2009. 14 Decree of the Ministry of Justice of the Czech Republic, no 244/1996 Coll., in the effective wording. 15 A fine may be imposed up to the amount of the minimum wage, as determined by a special legal regulation, multiplied by a hundred. At present, such a legal regulation is Government Order no 567/2006 Coll., in the effective wording, according to which the minimum monthly wage amounts to CZK 8,000. However, it is anticipated that the minimum wage will increase in the near future.

114

Czech Republic

30. Should a disciplinary plaintiff or a lawyer accused of committing a disciplinary wrong file an appeal against the decision of the disciplinary tribunal of the Disciplinary Commission of the Bar, such appeal shall be decided by a three-member tribunal of the Appeals Disciplinary Commission of the Bar. It may change a disciplinary decision, affirm it (dismissing the appeal within the proceedings) or cancel it and refer the case back to the tribunal of the first instance for further proceedings. 31. A lawyer accused of a disciplinary wrong may only file an action with the Municipal Court in Prague against a decision of the tribunal of the Appeals Disciplinary Commission of the Bar dismissing the appeal or changing the disciplinary decision concerned. This court is competent locally and from the point of view of subject matter in such disciplinary cases, because the Bar has its registered office within its district. The court shall conduct proceedings about this so-called administrative action according to the Administrative Judicial Proceedings Act.16 After hearing the case, the court shall dismiss the action or cancel the decision of the Appeals Disciplinary Tribunal and return the case for further proceedings. A cassation complaint is admissible against its judgment and would be heard by the Supreme Administrative Court in Brno. 32. Below are quoted several decisions of the Disciplinary Commission of the Bar over the last twenty years, selected from disciplinary decisions concerning the duty of professional secrecy: The lawyer’s duty of professional secrecy is breached if he delivers appeal through his contact policeman.17 The lawyer’s duty of professional secrecy is breached if he speaks with his client in prison in the presence of other persons also prosecuted in custody.18 Should a lawyer inform a court that he terminates the power of attorney granted by his client due to the fact that his client has admonished him to perform acts contrary to the mission and objectives of the legal profession, such lawyer breaches the duty of professional secrecy.19 A lawyer is obliged to comply with the duty of professional secrecy even in situations when he feels subject to personal threat. He is obliged to comply with the duty of professional secrecy also in respect of the data that could also be determined in another manner.20 Unless a client releases a lawyer from the duty of professional secrecy in a provable manner, a lawyer is not entitled to inform a state administrative organ about the circumstances of representation.21 16 Act no 150/2002 Coll. 17 Decision no 7/1996 CDD. 18 Decision no 2/1997 CDD. 19 Decision no 2/1999 CDD. 20 Decision no 4/1999 CDD. 21 Decision no 8/2000 CDD.

115

Professional secrecy of lawyers in Europe

The lawyer’s duty of professional secrecy is grossly breached if, after the end of representation, a lawyer hands over the files in a transparent folder through a third person who is not bound by the duty of professional secrecy.22 A lawyer who was not released from the duty of professional secrecy and provides his witness testimony within the criminal proceedings conducted against his, even former, client, while stating the core of provided legal services to the disadvantage of such client, breaches in a gross manner the Act on the Legal Profession and one of the fundamental ethical principles governing the exercise of the legal profession.23 b

Criminal proceedings and sanctions

33. Article 180, paragraph 2, of the Criminal Code contains a separate body of an offence – unauthorised treatment of personal data – committed by a lawyer who, even due to his negligence, breaches the duty of professional secrecy by unauthorised publishing, informing or disclosing personal data acquired in connection with the exercise of the legal profession to a third person, thus causing serious detriment to the rights or justified interests of the person whose personal data are involved. For this offence, punishment of imprisonment for up to three years or prohibition from practising may be imposed on a lawyer. In more serious cases defined in Article 180, paragraphs 3 and 4, of the Criminal Code a lawyer may be sentenced to even longer imprisonment, where the upper limit reaches eight years. Serious impairment of the rights or justified interests of a person whose personal data are involved may be in the area of property (an injured person suffers loss of business activity, loss of orders, reduced income) or of nonproperty (reputation, family life, employment and so on). The specific circumstances of a case will determine whether serious detriment to rights or interests protected by law has actually been done, in particular the type of right or interest protected by law involved, the intensity of the detriment and the consequences for the injured person, especially whether it was easy or difficult to remedy or remove the consequence, or whether it was absolutely impossible to remedy it. c

Civil proceedings and damages

34. In the event that a lawyer causes damage to a client by breaching the duty of professional secrecy, the client may seek compensation before a civil court. Within these proceedings the burden of proof is on the client, who must prove that the lawyer breached the duty of professional secrecy through his own fault (intentionally or by negligence), that the client suffered damage in a specific amount and that there is causality between breach of the duty of 22 Decision no 5/2003 CDD.

116

23 Decision no 5/2003 CDD.

Czech Republic

professional secrecy and the occurrence of damage. An action for the protection of personal rights under the provisions of the Civil Code in which a client seeks an apology from a lawyer and possibly also compensation in money for other than proprietary detriment is also possible. Both mentioned proceedings are classic civil law actions admitting appeal against a decision of a court of first instance. Through extraordinary remedies, such cases may come before the Supreme Court or the Constitutional Court; this is, however, unknown to the author of this contribution.

B

Relationship between criminal sanctions and disciplinary sanctions 35. In the event that a lawyer accomplishes one of the elements of crime specified in a special part of the Criminal Code, such conduct can be subject to the criminal prosecution of the lawyer. The Act does not exclude the possibility of starting disciplinary proceedings in respect of such conduct against a lawyer. However, the Disciplinary Code for Lawyers does not enable the disciplinary tribunal to interrupt the disciplinary proceedings where the criminal proceedings were initiated in respect of the act being subject to the disciplinary action, in particular until final termination of criminal prosecution. If a lawyer is sentenced within the criminal proceedings for the same act, the disciplinary tribunal may discontinue the disciplinary proceedings, if the criminal sentence is considered sufficient also from the point of view of the disciplinary proceedings. When deciding on suspension or discontinuation of disciplinary proceedings, the disciplinary tribunal should in both cases take account of differences in the purposes of criminal and disciplinary proceedings. Whereas the disciplinary tribunal may in a specific case consider the breach of professional secrecy such a serious breach of the lawyer’s duty that it is necessary to delete him from the Register of Lawyers, from a criminal court’s point of view the same breach of the duty of professional secrecy does not have to be a reason for imposing the punishment of prohibition of activity, i.e. exercise of the legal profession.

5

Duty to provide information to the authorities

A

Money laundering and terrorism 36. When complying with obligations according to the Act on Certain Measures against Legalisation of Yields from Criminal Activity and Financing of Terrorism, no 253/2008 Coll., in the effective wording, a lawyer may not claim the duty of professional secrecy. Duties, according to this Act, apply in the event of a lawyer’s taking a client’s money, securities or other assets into custody, or in the event that the services required by the client should consist of the lawyer’s acting on the client’s behalf or on his account in the following cases: 117

Professional secrecy of lawyers in Europe

1. arranging for the purchase or sale of real estate or an enterprise or a part thereof; 2. the management of money, securities, ownership interests or other assets of the client, including acting in the client’s name or on the client’s behalf in connection with opening an account with a domestic or foreign credit institution, or a securities account, and the management of such an account; 3. the formation, management and operation of a business company, group of companies or other similar unit, regardless of whether it is or is not a legal entity, as well as the acquisition and collection of monetary means or other valuables appraisable in money for the purposes of the formation, management or control of such an entity; 4. collections, payments, transfers, deposits or withdrawals carried out through cashless or cash payment systems or any other conduct focused on the movement of money, or initiating such a movement directly. However, a lawyer has no reporting duty under this Act in the case of information on a client acquired by a lawyer from a client or in any other manner or in connection with the provision of legal advice, or subsequent verification of the client’s legal position, the client’s defence within criminal proceedings or representation of a client in another judicial proceeding. 37. In other cases, a lawyer is subject to the reporting duty under Act no 253/2008 Coll. The reporting duty under Article 18 of this Act applies to a lawyer only in the event he or she identifies a suspicious deal in connection with the performance of one of the activities stated above. In such an event, the lawyer does not report to the Ministry of Finance but to the Supervisory Board of the Bar. A relevant member of the Supervisory Board of the Bar shall review whether the report is in compliance with the Act and with professional regulation. When doing so, the member will focus on whether the lawyer, in their report, does not state any information mentioned in the preceding paragraph. Should the report fail to comply with all prerequisites, the member of the Supervisory Board shall invite the lawyer to remove defects. Should the report comply with all prerequisites, the Bar shall pass it to the Ministry of Finance.

6

Treatment of a lawyer’s documents and correspondence in the context of judicial investigations 38. Except for cases stipulated in no 39 of this contribution, Czech legal regulations do not enable the court to view, against a client’s will, documents to which the duty of professional secrecy applies. Excepted are only those proceedings

118

Czech Republic

stipulated in Article 21, paragraph 4, of the Act on the Legal Profession, as mentioned in no 7 of this contribution. These are proceedings the object of which is a dispute between a client and a lawyer and further all proceedings initiated against the Bar and specified in Article 55 and 55(b) of the Act on the Legal Profession. However, also in such cases the lawyer’s duty of professional secrecy may be broken only to the extent necessary for protection of the lawyer’s rights or lawyer’s interests protected by law. Thus a lawyer may not submit all filed correspondence concerning a relevant client to a court should the acquaintance of the court with the content of only some documents be sufficient for the protection of the lawyer’s rights within the proceedings concerned. A lawyer is not obliged, even within criminal proceedings, to surrender a document the content of which concerns circumstances to which the duty of professional secrecy applies, unless of course the lawyer is validly released from such duty.

7

Search of a lawyer’s office 39. The Criminal Procedure Code enables organs in charge of criminal proceedings (investigative, prosecuting and adjudicating organs) to carry out searches of lawyers’ offices.24 However, if documents containing facts to which the lawyer’s duty of professional secrecy applies are possibly located in these premises, the organ carrying out the search is obliged to ask for the Bar’s cooperation. For these purposes, a document shall be both a written document or a part thereof, and information in another medium. An organ carrying out the search may acquaint itself with the content of the documents containing facts covered by the duty of professional secrecy only in the presence and with the approval of a representative of the Bar appointed by the president of the Bar from among its employees or lawyers. A representative of the Bar shall be present throughout the search and has the right to acquaint himself with the lawyer’s documents and the content of information media, and based on determined facts may grant approval for acquaintance with their content, or possibly assume the position from the point of view of lawyers’ editorial duty. Should the representative of the Bar refuse to grant approval to the organ carrying out the search to acquaint itself with the content of documents, the documents shall be secured in the presence of the organ carrying out the search, the lawyer and the representative of the Bar, in such a manner that their content may not be made available, and such that they may not be destroyed or 24 Act no 141/1961 Coll., in the effective wording.

119

Professional secrecy of lawyers in Europe

damaged. Immediately afterwards, relevant documents must be handed over to the Bar. At the proposal of the organ ordering the search, the approval of a representative of the Bar may be substituted with a judicial decision. Such a proposal must be filed within fifteen days of the Bar representative’s refusal to grant approval. A judge may satisfy the motion should he arrive at the conclusion that the document concerned does not contain facts in respect of which the lawyer concerned is bound by the duty of professional secrecy. Failing that, he shall dismiss the motion and the Chamber shall return documents to the lawyer.

8

Tapping of telephone conversations with a lawyer 40. Under the conditions stipulated in Article 88 of the Criminal Procedure Code, telephone or similar communication between lawyer and client may also be tapped. In the event of criminal proceedings concerning especially serious crime (the upper limit of the custodial penalty for which amounts to at least 10 years) or another intentional crime that has to be prosecuted on the basis of a binding promulgated international treaty, an order to tap and record telecommunication may be made, if one can reasonably anticipate that facts significant to criminal proceedings will be acquired in this manner and that the purpose in view cannot be achieved in any other way or that its achievement will otherwise be significantly difficult. Tapping and recording of telecommunications is carried out for the needs of all investigative, prosecuting and adjudicative organs of the police of the Czech Republic. Only a judge is competent to order the tapping and recording of telecommunications. Investigative, prosecuting and adjudicating organs are not in such cases prevented from using as evidence the facts covered by the duty of professional secrecy and determined from the legal tapping of telephone discussions between lawyer and client. However, the fundamental exception is made in the case of a client in respect of whose criminal case tapping was permitted and the lawyer who is the client’s defence counsel in the case concerned. Should a police authority determine that the accused is communicating with his defence counsel, said police authority is obliged to destroy the record of the tap immediately and may not use information learnt in this connection.

9

The lawyer as witness 41. A lawyer is always obliged to appear in court (regardless of whether criminal, civil or administrative) when summoned to examination as a witness. However, in all types of judicial proceedings, the lawyer is obliged to refuse to testify

120

Czech Republic

about facts protected by the duty of professional secrecy.25 In such cases also a client may release a lawyer from the duty of professional secrecy. A lawyer may claim the duty of professional secrecy and not testify. However, the lawyer may not state untrue facts about circumstances protected by the duty of professional secrecy.26 Where a lawyer’s testimony should concern facts to which the duty of professional secrecy does not apply, the same legal provisions shall apply to the obligation to testify as in the case of any other witness. The right of an ordinary witness to refuse testimony within criminal proceedings applies in the case of a family relationship with the accused or the risk of the witness himor herself or a person close to them facing criminal prosecution due to such testimony. A situation to which the duty of professional secrecy does not apply is, according to the court,27 one in which a lawyer was present at the examination of a client whom he or she no longer defends at the time of giving witness testimony.

10

The lawyer and the press 42. Regarding the duty of professional secrecy, no special rules apply in the Czech Republic to statements of a lawyer to mass media. In view of the number of addressees able to acquaint themselves with such a lawyer’s statement it is especially necessary to take care of the form and content of the lawyer’s presentation.

11

Powers of the tax administration and other authorities 43. The lawyer’s duty of professional secrecy does not affect his duties as a taxable person as stipulated by special legal regulations on the administration 25 Art. 99, para. 2, of the Criminal Procedure Code, Art. 124 of the Civil Procedure Code (Act no 99/1963 Coll., in the effective wording), applicable also to proceedings according to the Administrative Judicial Procedure Code (Act no 150/2002 Coll., in the effective wording). 26 Supreme Court, 30 January 2008, 8 Tdo 1148/2007: a defence counsel, claiming the duty of professional secrecy, or using the right to refuse testimony on the grounds of mandatory professional secrecy, may not provide incorrect data to an organ in charge of criminal proceedings to which the duty of professional secrecy applies, not even in the interest of an accused person, e.g. with regard to the identity of a person inquired about. 27 High Court in Prague, 17 June 2004, 2 Tdo 49/2004: ‘In the case of change of a defence counsel of an accused person and should doubts exist whether the former defence counsel was present during his examination before the police authority, the former defence counsel may be heard as a witness during the trial with regard to such circumstances. Such hearing will not usually be prevented by the duty of professional secrecy imposed by the state.’

121

Professional secrecy of lawyers in Europe

of taxes and fees.28 However, in this case also a lawyer is obliged to comply with the duty of professional secrecy about the character of a matter in respect of which he or she provides or has provided legal services. Thus a lawyer is obliged to submit to the financial authority all accounting documents containing clients’ data that are otherwise generally protected by the duty of professional secrecy. However, without the client’s consent, a lawyer may not inform the financial authority whether he represented the client within divorce proceedings or was his defence counsel within criminal proceedings.

12

State security service 44. Neither the National Security Office, the Security Information Service, nor any other security or defence corps of the Czech Republic have any privileges vis-`a-vis lawyers from the point of view of their duty of professional secrecy. 28 Act no 280/2009 Coll., in the effective wording.

122

8 Denmark lars bo langsted Professor of Law, Aalborg University

Preliminary note 124 1 Scope of and limitations on professional secrecy 124 A Statutory basis and implications 124 B Scope 126 C Persons subject to the duty of professional secrecy 127 D Limitations and derogations 127 a Limitations 128 b Derogations 128 E Law firms 129 F Legal assistants and staff 129 G External service providers 130 2 History 130 3 Supervision 131 A The Bar and Law Society 131 B The courts 131 4 Sanctions 131 A Proceedings and sanctions 131 a Disciplinary proceedings and sanctions 131 b Criminal proceedings and sanctions 132 c Civil proceedings and damages 132 B Relationship between criminal sanctions and disciplinary sanctions 132 5 Duty to provide information to the authorities 133 A Money laundering and terrorism 133 B Tax authorities 134 C Minors 134 6 Treatment of a lawyer’s documents and correspondence in the context of judicial investigations 134 7 Tapping of telephone conversations with a lawyer 134 8 The lawyer as witness 134 9 The lawyer and the press 135 10 State security service 135

123

Professional secrecy of lawyers in Europe

Preliminary note 1. In Denmark, lawyers who are admitted to the Bar are subject to a duty of professional secrecy (also known as the attorney–client privilege). Admission to practise is granted by the Ministry of Justice and confers the right to bear the title ‘advocate’ (advokat). Only advocates are entitled to appear in court on behalf of other persons (with a few exceptions, especially in cases of minor value). Advocates are self-employed, although they can be partners or associates in a law firm. Law firms can be organised as partnerships or more commonly as limited companies. Shares in such companies must be owned by advocates. Advocates must comply with the Bar’s code of ethics. In Denmark, there is one bar association for the nation as a whole (the Danish Bar and Law Society). The Bar Society covers Denmark, as well as the Faroe Islands and Greenland. The Society is governed by a council of fifteen members. The president is elected by direct votes, whereas the remaining fourteen members are elected from eight local constituencies. Lawyers who work for a company (in-house counsel) are entitled to keep the practising certificate as advocate and must also be a member of the Bar. The companies in which such lawyers work may not, however, offer law services to the public. Lawyers who work for courts, the police or the prosecution service may not work as advocates and are not members of the Bar. Written legal advice prepared by company lawyers is not, as a rule, covered by the attorney–client privilege. Membership of the Bar also extends to any other lawyer who, as a national of a Member State of the European Union or the European Economic Area or as a national of Switzerland, practises law on a permanent basis in Denmark under his home-country professional title (EU lawyer). This chapter focuses on the duty of professional secrecy, or attorney–client privilege, of lawyers who belong to the Bar. Unless indicated otherwise, for the purposes of this chapter, the term ‘lawyer’ refers to a member of the Bar (advokat).

1

Scope of and limitations on professional secrecy

A

Statutory basis and implications 2. The attorney–client privilege in Denmark is based on several rules. Article 126 of the Administration of Justice Act (AJA) imposes a duty on advocates to act in accordance with the rules of professional conduct (god advokatskik). It is assumed that this article refers to the codes of conduct given by the bar association and hence to the articles therein concerning professional secrecy. Furthermore, Article 129 AJA refers to Article 152 of the Criminal Code (CC), which imposes a duty of professional secrecy on public servants.

124

Denmark

Violation of this duty can be sanctioned by a prison term and/or a criminal fine. Article 152(e) provides for three exceptions: 1. a holder of secrets can speak if the law expressly provides for an obligation to do so – apart from the law on money laundering (see no 30 of this chapter), no law obliges a lawyer to reveal client information; 2. if a holder of secrets speaks in order to lawfully safeguard public interests, this is not a breach of confidence; 3. neither is it a breach of confidence if the information is revealed in order to lawfully safeguard interests of the holder of secrets or other persons. While the third exemption is relevant only if the keeper of the secrets, by revealing the information, can avoid a miscarriage of justice for him- or herself or a third party,1 the second exemption is vaguer. The Supreme Court stated that a lawyer was entitled to breach client confidentiality in a situation where he thought that the client had spread misleading information to the public concerning a public limited company that the client owned.2 By giving this information to the director of the Copenhagen Stock Exchange, the lawyer accidentally started an investigation that revealed that the client was guilty of serious fraud and forgery and the client was later convicted to seven years’ imprisonment. 3. Except by consent of the interested party, clergymen of the National Church or other religious communities, medical doctors, defence counsel and other advocates cannot be questioned regarding information received in the furtherance of their professional duties (Art. 170 AJA). Whereas the ban concerning clergymen and defence counsel is absolute, the court may, when the information is of decisive importance for the case, upon weighing the conflict of interests and taking the importance of the case and the gravity of the crime alleged into consideration, order medical doctors and advocates, other than defence counsel, to divulge the relevant information. The fact that Article 170 AJA leaves it to the client to decide whether the lawyer may speak or not illustrates that the law does not regard secrecy as a privilege for the lawyer but for the client. This means that if the client consents to lift the privilege it is not up to the lawyer to decide whether to speak or not. In that case the lawyer is compelled to bear witness like all other citizens (Art. 168 AJA) – unless, of course, the lawyer would, by bearing witness, reveal other clients’ secrets. The Disciplinary Board, however, has decided that it is against the Code of Conduct to make use of an advance commitment given by the client that it was acceptable for the lawyer to reveal information. 1 In a decision of 4 February 2008 the Disciplinary Board stated that it was in accordance with the Code of Conduct for a lawyer to present the information regarding her counsel to a client in a disciplinary proceeding raised against her by the same client. 2 Ugeskrift for Retsvæsen 2002.1531 H.

125

Professional secrecy of lawyers in Europe

4. An obligation to keep information provided by the client confidential is, under normal circumstances, implied in the client’s contract with the lawyer. Disclosing information without the client’s consent may therefore constitute a breach of contract.3 5. Keeping professional secrecy is also supported by the rules of conflict of interest. Rules of the latter kind undoubtedly are born out of other considerations, but they also prevent situations where the lawyer might be tempted to use information regarding a former client when advising or otherwise assisting a new client in the same case. 6. Unlike in some other countries (see, for example, the chapter on Belgium) it is possible to use information stemming from a violation of the attorney–client privilege in criminal as well as in other cases in Denmark. This is due to the fact that the assessment of evidence is free, combined with the principle of material truth, especially in criminal cases.4

B

Scope 7. Professional secrecy (or the attorney–client privilege) covers all information, whether written or oral, provided by the client to his or her lawyer in order to prepare for litigation relating to the client’s rights and obligations or in the course of soliciting advice regarding the client’s legal rights and obligations, as well as all information which comes to the lawyer’s attention in this context, including information provided by the opposing party or a third party. Secrecy, however, is not demanded concerning information obtained not as a lawyer but in other functions. If a lawyer is, for example, a lawyer for a foundation but also its patron, information stemming from that patronage is protected neither by the Code of Conduct nor by Article 170 AJA.5 8. In general, any correspondence between a client and his or her lawyer is covered by the duty of professional secrecy and thus privileged. Furthermore, any enclosures in such correspondence, advice the lawyer prepares on the client’s rights and obligations, personal notes made by the lawyer in the case, statements of fees and disbursements, and breakdowns of services sent along with such statements are also covered by the attorney–client privilege. In sum, the attorney–client privilege covers, in general, any information the lawyer functioning as a lawyer receives from a client, as well as any information received from the opposing party, opposing counsel or any third party.

3 See Mads Bryde Andersen, Advokatretten (2005), 369. 4 For further information on Danish criminal procedure (as well as criminal law), see Lars Bo Langsted, Peter Garde and Vagn Greve, Criminal Law in Denmark (Wolters Kluwer, 2011). 5 See Supreme Court verdict in Ugeskrift for Retsvæsen 2009.2615 H.

126

Denmark

9. Professional secrecy is not limited by time (see the wording of Art. 152 CC as well as the Code of Conduct (2011), Art. 5(2)). 10. Breach of confidentiality may happen in two ways. It is, of course, a breach of confidentiality to pass information about the client on to other persons. It is also, however, a breach of professional secrecy to make use of such information stemming from a client. Should the lawyer have, for example, in his possession information on a certain kind of product, customer records or other sensitive material, it would be regarded as a breach of client confidentiality and thus a crime (Art. 152 CC) if he or she used such information to establish a product of the same kind or made use of the customer records to send out e-mails in order to acquire new clients. Likewise, the duty to keep such information confidential obliges the lawyer to guard the information against falling into the hands of others. If, for example, a lawyer leaves confidential papers in his or her car, which is then stolen, this will be regarded as a breach of the Code of Conduct.6 Since the lawyer in this case would not have passed the information on intentionally but only negligently, it would not, however, constitute a crime (Art. 152 CC).

C

Persons subject to the duty of professional secrecy 11. The lawyer’s duty of professional secrecy may be inferred from the contract with the client but is primarily a duty imposed by the Criminal Code (Art. 152). Furthermore, this duty is enshrined in the ethics code of the legal profession. Consequently, any breach of the duty of professional secrecy constitutes a violation of the Criminal Code as well as of the ethical rules and may result in the imposition of criminal or disciplinary sanctions (see nos 25–8 of this chapter). The attorney–client privilege must be respected by the court, the public prosecutor’s office and any party to the proceedings. For example, the director of a prison is not entitled to read correspondence between an inmate and their lawyer (Art. 56 Corrections Act).

D

Limitations and derogations 12. The attorney–client privilege is subject to a number of exceptions and derogations. If an exception applies, the lawyer is obliged to disclose the information that falls under the exception. In the event of derogation, the lawyer can decide whether or not to disclose the information in question. These exceptions and derogations must, of course, be interpreted narrowly, as they constitute limitations on due process and the right to a fair trial in that any information so disclosed may be used against the client in court. 6 Decision of 25 February 2003 by the Disciplinary Board.

127

Professional secrecy of lawyers in Europe

a

Limitations

13. As stated above, Article 152 e CC allows the lawyer to reveal client secrets if he does so ‘in order to lawfully safeguard interests of himself or other persons’. Furthermore, lawyers, as well as other citizens in certain cases of exceptional need, must disclose privileged information. Such cases are regulated in law. Article 141 CC, for example, states, Any person who, knowing that the committing of any of the offences against the state or against the supreme authorities of the state dealt with in sections . . . [NN] of this Act or of any offence endangering the life or welfare of human beings or substantial public assets is intended, does not make efforts, to the best of his ability, to prevent the offence or its consequences, if necessary by informing the public authorities, shall be liable, provided that the offence is committed or attempted, to a fine or to imprisonment for any term not exceeding three years.

Other higher values may also call for disclosure. Disclosure must never, however, go beyond the information required to ensure the protection of the higher value. 14. Lawyers may not hide behind the attorney–client privilege in order to cover up a crime they have committed. 15. In the event of a liability action brought by a client against his or her lawyer, the parties may disclose privileged information only for the purpose of assessing the merits of the claim. This follows from the lawyer’s right to a fair trial as well as from the wording of Article 152 e CC. Such proceedings must be kept separate from any other proceedings to which the client is a party in order to avoid the privileged information being used for purposes other than determining whether the lawyer is in breach of contract or otherwise responsible. Furthermore, the lawyer should only produce information to the extent necessary in order to defend him- or herself against the claim. The same goes for disciplinary proceedings brought against the lawyer by the client. b

Derogations

16. The client may disclose all information about himself to anyone he might see fit. Being able to do so, the client may also instruct the lawyer to disclose all information concerning the client. 17. The Criminal Code states that a lawyer is not bound by a duty of professional secrecy if he or she is either released from confidentiality by the client or is ordered to testify as a witness by the court (see no 36 of this chapter). 128

Denmark

E

Law firms 18. Lawyers who work in a law firm tend to share privileged information. It is generally accepted that no restrictions apply to this type of sharing of information. When a client engages the services of a law firm, all the lawyers of the firm are deemed engaged. The firm can ask any of its lawyers to handle the case. This follows directly from the Code of Conduct, Article 5(4), and from the wording in Article 152 CC, that only unlawfully forwarding or exploiting clients’ secrets is interpreted as not covering this situation. The attorney–client privilege applies to all information provided by the client to the lawyers of the firm, regardless of whether they are partners or associates. In all cases, they work on behalf of the firm. The situation is different when lawyers work in a cost-sharing structure. In this case, the lawyers do not practise law jointly; they only share costs and office space. The Code of Conduct, Article 5(4), as mentioned above, does, however, include such structures.7 It is doubtful, though, whether Article 152 CC would be interpreted in the same broad way. A client of one lawyer is not a client of the others, and consideration for the client might very well lead to another result concerning the Criminal Code.

F

Legal assistants and staff 19. Law firms employ secretaries, support staff and paralegals. In Denmark, these employees are not supposed to practise law. The firm cannot offer their services as lawyers, since they are not admitted to the Bar. Article 129 AJA, however, refers to Article 152 CC as applying not only to lawyers but to anyone who works with the law firm. This means that secretarial staff, cleaning staff, drivers and anybody else working there is bound by the same duty of confidentiality, and may be subject to criminal sanction if they breach this duty. 7 It is, however, very uncertain what this inclusion implies. In the UfR 1998.1105/2 H verdict, the Supreme Court stated that the Disciplinary Board had been right to sanction a lawyer for acting on behalf of three doctors in a case brought to trial by a woman who had previously been defended by another lawyer working in the same office community. The reasoning in the verdict referred to the fact that the woman might suspect that information was ‘floating’ around in the community – although this would constitute a breach of duty. Lars Økjær Jørgensen and Martin Lavesen write in their book De advokatetiske regler: kommenteret af Lars Økjær Jørgensen og Martin Lavesen (Code of Conduct with Annotations) (Advokatsamfundet, 2011) that this verdict is the reason why the rule encompasses office communities as well. They write that the rule was implemented because the Supreme Court in this verdict from 1998 presupposed that lawyers working in such a community had to pass information on to each other in order to avoid conflicts of interest. Even if that is true it does not mean that the Supreme Court would find it lawful that all kinds of information were passed on between such lawyers. In order to avoid conflicts of interest all you need is a name.

129

Professional secrecy of lawyers in Europe

G

External service providers 20. More and more law firms are outsourcing services such as secretarial work, the review of documents written in a foreign language, and even such legal work as due diligence or research. If such work is done by an outside lawyer, no difficulty should arise, and the duty of professional secrecy extends to this lawyer. When confidential documents are sent outside the firm to non-lawyers, there is a question whether the duty of professional secrecy continues to apply. It may be argued that these persons work on behalf of the firm, within the limits of their particular assignment. On these grounds it is probably not ‘unlawful’ in the meaning of Article 152 CC. The obligation for the non-lawyer not to disclose information to anyone else may be found in Article 19 of the Marketing Law, which requires a party to keep trade secrets secret.8 21. If the client agrees, a lawyer is entitled to co-operate, on a specific matter, with a professional who is not a lawyer, provided the lawyer ensures respect for professional secrecy. This does not mean that the lawyer cannot share information with the non-lawyer; information can be shared but only with the client’s consent and to the extent necessary to safeguard the client’s interests. Lawyers cannot form a professional association with non-lawyers.

2

History 22. The first rules concerning lawyers were found in a royal decree from 1638 and in Danish Law (Danske Lov) from 1683 there is a chapter concerning lawyers (Procuratores). It does not contain any provisions concerning the obligation to keep information confidential. Until the middle of the nineteenth century, lawyers were in most respects regarded as public servants. When the first law concerning lawyers (Sagførerloven) from 1868 was amended, it was assumed that the rules in the 1866 Criminal Code concerning public servants were also applicable to lawyers.9 In accordance with 1866-CC Article 139 a public servant was obliged under threat of punishment to keep secret whatever was learnt during his employment. From 1916 the rules on lawyers and the conditions for becoming a lawyer were found in the Administration of Justice Act, which came into force that year. As there is today, there was an explicit reference to the rule on the duty of secrecy for public servants (today Art. 152 CC) The Danish Bar and Law Society was founded in 1919. 8 The question is, however, whether a lawyer’s client’s information would be regarded as a ‘trade secret’ in this respect. 9 See Betænkning no 871/1979, 12.

130

Denmark

3

Supervision

A

The Bar and Law Society 23. A lawyers’ professional remit is to ‘promote justice and to counter injustice’, as stated in the Code of Conduct. The Danish Bar and Law Society is ‘composed of all Danish lawyers’ (Art. 143 AJA), and the Society registers and keeps track of all lawyers in Denmark. Furthermore, as stated in the Code of Conduct (2011) (Art. 2(2)), The General Council of the Danish Bar and Law Society supervises compliance with the rules regarding good conduct for lawyers. The Disciplinary Board, which hears complaints concerning lawyers, determines the particulars of the contents of the Administration of Justice Act’s standard of good conduct for lawyers and imposes disciplinary sanctions pursuant to Chapter 15b of the Administration of Justice Act.

The Bar and Law Society cannot direct or instruct lawyers in the handling of their cases. Their authority is limited to the imposition of disciplinary sanctions if a lawyer breaches his or her ethical duties. The attorney–client privilege is also an ethical duty, the violation of which will result in the imposition of disciplinary sanctions.

B

The courts 24. Lawyers must, of course, abide by the law. The civil courts have jurisdiction to hear any claim for professional liability brought against a lawyer by a client. The criminal courts have jurisdiction over crimes committed by lawyers in the exercise of their profession. No special rules apply in this respect to lawyers.

4

Sanctions

A

Proceedings and sanctions

a

Disciplinary proceedings and sanctions

25. The Disciplinary Board (Advokatnævnet) is part of the Danish Bar and Law Society. The Board has twenty-one members. Three judges – all appointed by the president of the Supreme Court – form the chairmanship. Nine members are lawyers and the other nine members are laymen. Any person with a legal interest in the matter may file a complaint about a lawyer directly with the Board. The Board does not investigate cases, but bases its decisions on written statements from the complainant and from the lawyer. Lawyers are obliged to give statements and to appear before the Board if so asked. The complainant is entitled to appear before the Board if he or she so wishes. 131

Professional secrecy of lawyers in Europe

The meetings are not public, but the defendant lawyer as a rule has the right to demand public presence and the Board may allow public access if it deems that the case is of public interest. If the lawyer is facing the risk of disbarment, the Board shall appoint a counsel for the defendant lawyer, and in other cases the Board may do so if it is deemed necessary. The following disciplinary sanctions can be imposed by the Disciplinary Board: (i) a warning, (ii) a fine not exceeding DKK 300,000,10 (iii) a suspension from the practice of law for a period of up to five years or ‘until further notice’, or (iv) a suspension limited to the right to conduct certain kinds of work. 26. Decisions of the Disciplinary Board cannot be appealed to any other board or authority. If, however, the lawyer is sanctioned by the Board, he or she has the right to have the case tried before an ordinary court. b

Criminal proceedings and sanctions

27. As mentioned above (see nos 2–6 of this chapter), violation of the attorney– client privilege is punishable by criminal sanctions, i.e. a prison term of up to six months or a fine (Art. 152 CC). The court’s decision can be appealed to the competent court of appeal, whose decision can in turn be appealed to the Supreme Court, although only on legal grounds and only after permission has been granted by the Appeals Permission Board. c

Civil proceedings and damages

28. Violation of the attorney–client privilege may constitute a breach of contract with the client and damages may be awarded if the breach has caused economic harm to the client. The client bears the burden of proof in this regard. The courts of first instance have jurisdiction over such proceedings, and appeal is possible to the courts of appeal and, finally, to the Supreme Court (on legal grounds only and only if the Appeals Permission Board finds the matter in question fundamental).

B

Relationship between criminal sanctions and disciplinary sanctions 29. Disciplinary and criminal sanctions are imposed independently and have no effect on each other. The imposition of both criminal and disciplinary sanctions on the basis of the same facts does not violate the general principle of ne bis in idem as the sanctions are imposed for the violation of different rules. If a lawyer, however, is first sanctioned by a criminal court, for a behaviour that also constitutes a breach of his duties in accordance with Article 126 AJA, the Disciplinary 10 Approximately €40,000.

132

Denmark

Board may decide that the sanction is repealed, because the lawyer has already been sanctioned by a court.

5

Duty to provide information to the authorities

A

Money laundering and terrorism 30. Credit institutions, financial institutions and financial intermediaries, realestate brokers, diamond traders, surveillance companies, notaries, bailiffs, auditors and accountants are obliged to inform the Money Laundering Secretariat, which is part of the office of the State Prosecutor for Serious Economic Crime, of any transaction they suspect is related to money laundering or the financing of terrorism (Act of 27 February 2006 with later amendments on the prevention of the use of the financial system for the purpose of money laundering and terrorist financing). This legislation also applies to lawyers when assisting their clients in transactions relating to the acquisition or sale of real property or companies; the management of funds, securities or other assets; the opening or management of bank accounts or securities accounts; contribution to companies; the incorporation or management of companies, trusts, fiduciary or similar legal constructions; or when acting on behalf of clients in financial transactions or transactions relating to real property, as well giving counsel on commercial matters (Art. 1 of the Act of 27 February 2006). In this case, the lawyer must identify the client seeking advice on any of the above matters before providing assistance. A lawyer who is informed of facts which he or she knows or presumes are related to money laundering or the financing of terrorism must immediately inform the Bar and Law Society. The Society will then verify whether the facts indeed seem to relate to money laundering or the financing of terrorism. If this is the case, the Bar and Law Society must immediately pass the information on to the Money Laundering Secretariat. The lawyer is not allowed to inform the client of this fact or that an investigation is under way. However, lawyers are not obliged to inform the Bar Society when they receive or obtain information from a client in the course of ascertaining the client’s legal position or providing assistance with respect to litigation, including when rendering advice on the initiation or avoidance of litigation, regardless of whether they receive such information before, during or after litigation. This exception does not apply when the lawyer takes part in the money-laundering activity or the financing of terrorism, or provides advice on money-laundering activity or the financing of terrorism, or knows that the client is seeking advice for the purposes of money laundering or the financing of terrorism (Art. 8 of the Act of 27 February 2006). 133

Professional secrecy of lawyers in Europe

B

Tax authorities 31. In order to gather all information about the taxpayer’s financial situation, the tax authorities may ask for information about the client’s account, just as the lawyer is obliged to inform the tax authorities of the interest income from the client’s account (see Art. 8(g) and 8(h) of the Act of 24 November 2005 (skattekontrolloven), with later amendments).

C

Minors 32. Additional to Article 141 CC (see no 13 of this chapter), lawyers – like everybody else – are also obliged to inform the social services if they become aware that a child is being exposed to neglect or degrading treatment from his or her parents (Art. 154 of the Act of 24 June 2005, as amended).

6

Treatment of a lawyer’s documents and correspondence in the context of judicial investigations 33. When, in the course of an investigation, the authorities come upon documents prepared by a lawyer, or letters to or from a lawyer, they should consider these documents to be privileged. Police investigators are not allowed to seize such correspondence (Art. 803 AJA). 34. The search of the office or home of a lawyer is not governed by law in any way differently to regular searches. It is, however, stated that letters or other written notes concerning the case of an accused cannot be subject to a search (Art. 795 AJA).

7

Tapping of telephone conversations with a lawyer 35. In certain cases defined in the Administration of Justice Act (Arts. 780– 91), the court may authorise the tapping of telecommunications where there are indications that the person in question has committed one of the specific, serious crimes mentioned. Tapping of telecommunications with persons who are not allowed to testify in court (such as lawyers and doctors) is forbidden according to the AJA (Art. 782). If the lawyer himself is suspected of having committed one of the crimes that may form the basis for the tap or if other persons who are suspected of such a crime are presumed to use the lawyer’s telecommunications network, the tap is allowed.

8

The lawyer as witness 36. A lawyer can be called to testify in court as a witness. A lawyer who is called to testify must raise the attorney–client privilege should the court not

134

Denmark

be aware of his status. As mentioned before, the client may release the lawyer from confidentiality and the lawyer is then bound to give evidence. If the case is of importance to society or to the parties in question and the testimony is crucial to the case, the court may order the lawyer to give evidence anyway. If the lawyer is giving testimony in a civil case, the court cannot force him to testify regarding information stemming from his advice on litigation. Disclosing confidential information in this context is not a crime, neither is it a breach of duty or a breach of contract, since everyone is obliged to give evidence and may be forced to do so under threat of imprisonment for a period of up to six months or imposition of fines.11 The above rule also applies when a lawyer becomes the lawyer of a suspect after the commission of a crime which the lawyer witnessed. In this event, the lawyer cannot refuse to testify. This is why, pursuant to the Bar’s ethical rules, a lawyer cannot accept a case if he or she witnessed, in another capacity, the facts on which the case is based.

9

The lawyer and the press 37. It is generally accepted that a lawyer can, with the client’s consent, speak to the press in order to defend the client against allegations made in the press. However, the lawyer should refrain from conducting the case in the press rather than in the courtroom. In any case, the lawyer cannot disclose privileged information to the press.

10

State security service 38. The Danish state security service, also known as Politiets Efterretningstjenste (PET), must abide by the same rules concerning investigation and investigative methods as the rest of the police force. Since the majority of people investigated by PET are suspected of or even charged with some of the gravest offences in the Criminal Code, such as arson, terrorism, (attempted) murder and so on, it is possible to use the most comprehensive investigation methods, such as tapping phones, bugging rooms, using undercover agents and so forth. This implies that the exceptions concerning the special protection of the correspondence between the lawyer and the client, the giving of advice in connection with litigation and so on are just as valid and must be respected even if the client is suspected of terrorism or espionage. 11 In February 2012 the City Court of Copenhagen handed a psychiatrist fines amounting to DKK 40,000 for not giving testimony in a criminal case concerning possible torture witnessed by Danish soldiers in Afghanistan.

135

9 Estonia katrin kose Eesti Advokatuur

Preliminary note 137 1 Scope of and limitations on professional secrecy 137 A Statutory basis and implications 137 B Scope 137 C Persons subject to the duty of professional secrecy 138 D Limitations and derogations 138 E Law firms 139 F Legal assistants and staff 140 G External service providers 140 H Multidisciplinary associations 140 2 History 140 3 Supervision 140 A The Bar Association 140 B The courts 141 4 Sanctions 141 A Proceedings and sanctions 141 a Disciplinary proceedings and sanctions 141 b Criminal proceedings and sanctions 144 c Civil proceedings and damages 144 B Relationship between criminal sanctions and disciplinary sanctions 144 5 Duty to provide information to the authorities 144 6 Treatment of a lawyer’s documents and correspondence in the context of judicial investigations 146 7 Tapping of telephone conversations with a lawyer 147 8 The lawyer as witness 147 9 The lawyer and the press 148 10 Powers of the tax administration and other authorities 148 11 State security service 148

136

Estonia

Preliminary note 1. In Estonia, members of the Bar Association are subject to a duty of professional secrecy. An attorney’s obligation to maintain secrecy is regulated in the Bar Association Act and the Code of Conduct. In the provision of legal services, an attorney should be independent and should act pursuant to the laws, legal acts and resolutions adopted by the bodies of the Bar Association; the requirements for the professional ethics of attorneys; good morals; and conscience (S. 43 Bar Association Act). Attorneys-at-law, senior assistants of the attorney-at-law and assistants of the attorney-at-law are the members of the Bar Association (hereinafter the term ‘attorney’ refers to a member of the Bar (advokaat) (S. 22 Bar Association Act)). Lawyers who work for a company (in-house counsel) or for state or public organisations are not members of the Bar Association, and the Bar Association Act and the Code of Conduct do not apply to lawyers who are not members of the Bar Association. This chapter focuses on the duty of professional secrecy, confidentiality and attorney–client privilege of members of the Bar.

1

Scope of and limitations on professional secrecy

A

Statutory basis and implications 2. The legal basis for confidentiality is both legislative and professional. The confidentiality of an attorney is provided in the Bar Association Act, which regulates the organisation of the Estonian Bar Association. It is the legal basis for the activities of attorneys, associated members of the Bar Association and attorneys of a foreign state. The right to act as an associate member of the Bar Association is granted, on the basis of an application, to a person who is a citizen of a member state of the European Union and who has the right to practise as an attorney on a permanent basis in a member state of the European Union (S. 66 Bar Association Act). An attorney of a foreign state is a person who has the right to practise as an attorney on a permanent basis in a member state of the European Union and who is not a member of the Estonian Bar Association (S. 74 Bar Association Act). The Code of Conduct applies to the professional activities of attorneys.

B

Scope 3. Section 43 of the Bar Association Act provides that information disclosed to an attorney should be confidential. Section 45 of the Bar Association Act provides that an attorney is required to keep secret any information which has become known to him or her in the provision of legal services, and also to keep secret the identity of persons who request that the attorney provide legal services and the amount of remuneration paid for legal services. 137

Professional secrecy of lawyers in Europe

Legal services mean providing legal counsel, representing or defending a person in court or in pre-trial proceedings or elsewhere, preparing a document for a person, or performing other legal acts in the interests of a person as a professional activity (S. 40 Bar Association Act). The relationship between attorney and client is founded upon trust. Therefore all information given or received in the course of rendering legal services is secret. An attorney should accordingly respect the confidentiality of all information given by the client or received about the client or others in the course of rendering services to the client. The secrecy requirement also extends to include the fact of seeking the legal assistance of the attorney, as well as to the content of such legal assistance and to the fees. An attorney ensures that no third person has access to the client’s documents, correspondence or other information, or to any documents drafted by the attorney in the course of rendering legal services to the client, which are in the attorney’s possession in connection with handling the client’s matter. An attorney may not give an account of, or testify as a witness about, facts which have become known to him in the course of rendering services to the client. An attorney may not make documents or other information relative to professional activity available to any third party, or to public offices to which the said documents or information are not addressed (S. 5 Code of Conduct). 4. The obligation to maintain secrets does not extend to the collection of costs for legal services provided by an attorney who participated in a matter. It is also provided that disclosure of information to the Board of the Bar Association in the exercise of supervision over the activities of an attorney or to the court of honour in the hearing of a matter concerning a disciplinary offence is not to be deemed a violation of professional secrecy. Disclosure of data to the minister of justice performing supervision in matters of acting as a trustee in bankruptcy is not to be considered a violation of professional secrecy (S. 45 Bar Association Act).

C

Persons subject to the duty of professional secrecy 5. Section 43 of the Bar Association Act provides that information disclosed to an attorney should be confidential and the Bar Association Act (S. 45) provides that an attorney is required to maintain the confidentiality of information which has become known to him or her in the provision of legal services. Such obligation extends to the employees of law offices and of the Bar Association and to public servants to whom an attorney’s professional secret has become known in connection with their official duties.

D

Limitations and derogations 6. The Bar Association Act and the Code of Conduct provide that the client or the legal successor of the client may, by his or her written consent, exempt

138

Estonia

an attorney from the obligation to maintain a professional secret (S. 45 Bar Association Act). An attorney is required to keep secret the identity of persons who request that the attorney provide legal services and the amount of remuneration paid for legal services. The obligation to maintain the confidentiality of persons who request that the attorney provide legal services and the amount of remuneration paid to the attorney for legal services does not apply with regard to provision of state legal aid and the fee paid therefor. Disclosure of the amount of a fee the attorney charges the client in order to permit the court to judge the payment of such legal fees is not deemed a violation of the secrecy obligation (S. 45 Bar Association Act). Disclosure of information to the Board in the exercise of supervision over the activities of an attorney or to the court of honour in the hearing of a matter concerning a disciplinary offence is not to be deemed a violation of professional secrecy. Disclosure of data to the minister of justice performing supervision in matters of acting as a trustee in bankruptcy will not be considered a violation of the professional secret (S. 45 Bar Association Act). 7. In order to prevent a criminal offence in the first degree, an attorney has the right to submit, to the chairman of an administrative court or an administrative judge of the same court appointed by the chairman, a reasoned written application for exemption from the obligation to maintain a professional secret. A judge hears the submitted application immediately and issues, or refuses to issue, written permission (S. 45 Bar Association Act). 8. The obligation of secrecy is not limited in time. The attorney complies with the secrecy obligation also after the termination of professional activities. Violation of the secrecy obligation cannot be justified by public interest or the fact that this would allow better protection of the interests of the client (S. 5 Code of Conduct). 9. If an attorney refuses to reveal a secret, despite the fact that she or he was relieved from the duty of secrecy, such refusal itself does not constitute liability in respect of an attorney. An attorney should follow the general obligation to act in the best interests of the client. In the event an attorney follows such obligation, he or she is not liable in a professional, criminal or civil manner.

E

Law firms 10. Secrecy rules apply between an attorney and other attorneys in the firm or other attorneys with whom the attorney shares an office; information shared with colleagues must remain confidential. Observance of the secrecy obligation in the law office should be ensured by the manager of the law office. The manager of the law office organises maintenance of all the confidential and other information in such a manner that 139

Professional secrecy of lawyers in Europe

third parties have no access thereto. The information obtained in the course of rendering legal services may not be made available or disclosed to third parties (S. 11 Code of Conduct).

F

Legal assistants and staff 11. Employees of the attorney are also subject to secrecy. The secrecy obligation of an attorney also extends to employees to whom an attorney’s professional secret has become known. As a consequence of a breach of secrecy by employees of an attorney/law office, the attorney/law office is liable to the client. Employees may be liable to the attorney/law office according to the employment agreement concluded between the parties.

G

External service providers 12. Disclosing confidential information to third persons is not allowed. External service providers are not subject to the attorneys’ secrecy obligation. It is the obligation of an attorney to secure the maintenance of confidential information. An attorney is liable for the maintenance of confidential information. Therefore an attorney is liable to the client for the breach of confidentiality.

H

Multidisciplinary associations 13. If the client agrees, an attorney is entitled to co-operate, on a specific matter, with a professional who is not an attorney; however, the attorney should ensure respect of professional secrecy. This does not mean that the attorney cannot share information with the non-attorney; information can be shared but only with the client’s consent and to the extent necessary to safeguard the client’s interests. It is not permitted for a law firm to join with members of non-legal professions.

2

History The Estonian Bar Association Act, which regulates, among other things, maintenance of professional secrecy, entered into force on 19 April 2001.

3

Supervision

A

The Bar Association 14. An attorney who belongs to the Bar is an independent legal professional who is free to determine how best to defend his or her clients and protect their

140

Estonia

rights and interests. In the provision of legal services, an attorney should be independent and should act pursuant to the laws, the legal acts and resolutions adopted by the bodies of the Bar Association; the requirements for the professional ethics of attorneys; good morals; and conscience (S. 43 Bar Association Act). The Bar Association is competent to exercise supervision over the professional activities of the members of the Bar and their compliance with the requirements for professional ethics. The Bar Association acts through its bodies, and one of the bodies of the Bar Association is the court of honour, which hears matters concerning disciplinary offences committed by an attorney. Court of honour proceedings are obligatory for a member of the Bar Association. Bar Association bodies, including the court of honour, cannot direct or instruct attorneys in the handling of cases; however, the Bar may impose disciplinary sanctions if an attorney breaches ethical duties. 15. The attorney–client privilege is also an ethical duty, the violation of which will result in the imposition of disciplinary sanctions.

B

The courts 16. The civil courts have jurisdiction to hear any claim for professional liability brought against an attorney by a client. The criminal courts have jurisdiction over crimes committed by lawyers in the exercise of their profession. No special rules apply in this respect to attorneys. As regards decisions of the Bar Association bodies, an interested person may file a complaint with an administrative court.

4

Sanctions

A

Proceedings and sanctions

a

Disciplinary proceedings and sanctions

17. As regards initiating the proceedings of the court of honour, any interested person has a right to ask the court of honour or the Board to initiate proceedings of the court of honour. An application to initiate proceedings of the court of honour should be submitted within six months of the date on which the complainant became or should have become aware of the circumstances on which the application is based. A court of honour initiates proceedings of the court of honour on the initiative of an interested person, its own initiative or the initiative of a body of the Bar Association if elements of a disciplinary offence become evident in the activities of an attorney. The court of honour decides on initiating proceedings of the court of honour within two months of the date on which the court of honour became aware of elements of a disciplinary offence. 141

Professional secrecy of lawyers in Europe

The minister of justice may apply for initiation of court of honour proceedings, if suspicion has arisen that the activity of an attorney may feature elements of a disciplinary offence in connection with providing state legal aid or acting as a trustee in bankruptcy. The court of honour initiates court of honour proceedings if the minister of justice has applied for it to do so, or when a court has fined the attorney or prohibited the attorney from making declarations in proceedings or has disbarred the attorney from providing state legal aid in proceedings. The court of honour must not initiate court of honour proceedings if the disciplinary offence has expired or if settlement of the case is not in the court of honour’s competence. The Chamber of Court Executors and Trustees in Bankruptcy may apply to bring court of honour proceedings, if suspicion has arisen that the attorney has, in his or her activity as a trustee in bankruptcy, violated the decision of a body of the Chamber or good professional practice has not been complied with (S. 16 Bar Association Act). 18. Court of honour proceedings are obligatory for a member of the Bar Association. The attorney has the right to study the materials of the case; to give to the court of honour explanations; to submit counterclaims, motivations and considerations regarding all issues raised in court of honour proceedings; to submit that a member of the court of honour or a minuting secretary be rejected, if the circumstances create doubt about his or her impartiality; to submit applications and evidence and to participate in the scrutiny and investigation of evidence; to submit questions to persons invited to the session; and to obtain a copy of the session of the court of honour. If the attorney fails to appear at a session of the court of honour without reason, the matter may be heard without his or her attendance. The court of honour may decide the case in written proceedings, if the interested person or an attorney has not requested that the matter be decided in oral proceedings. The court of honour is bound to find the circumstances of substantial importance in the case being proceeded with, and, in case of need, to collect evidence for that on its own initiative. Upon demand of the court of honour the attorney is obliged to present to the court of honour the materials at his or her disposal. The court of honour may seek assistance from the administrative court in collecting evidence or in securing it. The administrative court decides on the request of the court of honour in written proceedings (S. 17 Bar Association Act). A court of honour adjudicates a matter concerning a disciplinary offence and takes a decision within six months of initiation of the proceedings of the court of honour. The court of honour will make a decision also in the event the court of honour does not ascertain the disciplinary offence. For valid reasons the court of honour can prolong the time limit for considering the disciplinary offence by up to three months. The period during which the proceedings of the 142

Estonia

court of honour are handled does not include the time during which the matter concerning the disciplinary offence cannot be heard due to circumstances which depend on the attorney with regard to whom the proceedings of the court of honour were initiated. 19. Taking into consideration the matter being heard and the personal characteristics of the attorney concerned, the court of honour may suspend the professional activities of the attorney for the duration of the proceedings of the court of honour. Suspension of professional activities for the duration of proceedings of the court of honour is not deemed to be a disciplinary penalty. The procedure of the court of honour is established by the internal rules of the Bar Association. In court of honour proceedings, the stipulations specified in the Administrative Court Act are applied to the extent that the Bar Association Act and internal rules of the Bar Association do not apply (S. 17). For ignoring the requirements of legal Acts specifying the activities of a law office or an attorney, or professional ethics, the court of honour may impose on a member of the Bar Association a disciplinary penalty, if the disciplinary offence has not expired by the time court of honour proceedings are brought. Disciplinary penalties are: (i) reprimand, (ii) a fine in favour of the Bar Association of between €64.00 and €16,000.00, (iii) suspension of professional activities for up to one year, (iv) disbarment and (v) revocation of the right to act as a trustee in bankruptcy for up to five years. During the time of suspension of professional activities (by disciplinary penalty), the attorney is prohibited from providing any legal services and from mediating or organising their provision. In the event of violation of the prohibition the attorney will be disbarred. 20. When imposing the disciplinary penalty, the court of honour considers, among other things, the seriousness of the disciplinary offence, the substance of the matter proceeded with and earlier punishment history of the attorney. A disciplinary penalty cannot be imposed if the disciplinary offence has expired. A disciplinary offence will expire after three years have lapsed from its perpetration. Expiration of the disciplinary offence starts from the moment when the attorney ceased perpetration of the act. Expiration of the disciplinary offence will be suspended during the time of proceeding with the disciplinary case in the court of honour or the court, among other things during presentation of the complaint, during appeal and during cassation. The court of honour has the right to proceed with the disciplinary case regardless of the expiration of the disciplinary offence. The disciplinary penalty extinguishes after three years have lapsed from enforcement of the decision imposing the penalty. Disbarment as a disciplinary penalty will not extinguish (S. 19 Bar Association Act). 143

Professional secrecy of lawyers in Europe

21. An interested person may file a complaint with an administrative court against a decision of the court of honour. The minister of justice will file a challenge with an administrative court against a decision of the court of honour if the disciplinary offence relates to provision of state legal aid or its organisation or to acting as a trustee in bankruptcy. The minister of justice will file a challenge with an administrative court against a decision of the court of honour within thirty days of receipt of the decision of the court of honour (S. 18 Bar Association Act). b

Criminal proceedings and sanctions

22. Disclosure of information obtained in the course of professional activities and relating to the health, private life or commercial activities of another person by a person who is required by law to maintain the confidentiality of such information is punishable by a pecuniary punishment or by up to three years’ imprisonment (S. 157 of the Penal Code). The first-instance court decision can be appealed to the competent court of appeal, whose decision can in turn be appealed, although only on legal grounds, to the Supreme Court. c

Civil proceedings and damages

23. Violation of the attorney–client privilege is a breach of contract with the client and damages may be awarded if the breach caused harm to the client. The court of first instance has jurisdiction over such proceedings, and appeal is possible to the courts of appeal and, finally, to the Supreme Court.

B

Relationship between criminal sanctions and disciplinary sanctions 24. For one disciplinary offence only one disciplinary penalty can be handed down. The standing disciplinary offence will be considered as a new disciplinary offence, if the attorney does not stop violation after announcement of the decision of the court of honour. When imposing the disciplinary penalty, the misdemeanour or criminal punishments imposed for the same offence should not be taken into account, nor should a disciplinary penalty imposed by another authority or person (S. 19 Bar Association Act).

5

Duty to provide information to the authorities 25. The Money Laundering and Terrorist Financing Prevention Act (the MLTFP Act) applies to notaries, attorneys, bailiffs, trustees in bankruptcy, interim trustees in bankruptcy and providers of other legal services if they act in the name and on account of a customer in financial or real-property transactions. The Act also applies to the specified persons if they guide the planning of a transaction or perform an official act which concerns (i) the purchase or sale of immovable enterprises or companies; (ii) the management of a customer’s

144

Estonia

money, securities or other property; (iii) the opening or managing of bank or security accounts; (iv) the acquisition of funds necessary for the foundation, operation or management of companies; and (v) the foundation, operation or management of trusts, companies or other similar entities (S. 3 MLTFP Act). Using documents and data submitted by the subject person, an attorney must verify the identity of his or her client or a person involved in the transaction through information from a reliable independent source. This includes verifying the identity and right of representation of agents of the subject person. Additionally, an attorney must identify the beneficiary of a transaction, acquire information concerning the business relationship or purpose of a transaction, and regularly monitor and verify information relating to an ongoing business relationship. If necessary to avoid interruption of the normal course of professional activities and if the risk of suspicious activity is low, attorneys may verify the required identities while establishing a business relationship or entering into a transaction so long as identities are verified as soon as possible and prior to the performance of any binding acts (S. 16 MLTFP Act). 26. If the attorney knows or has reason to suspect that identified activities are for money laundering or for terrorist financing or is aware of other circumstances stipulated in the MLTFP Act, they must immediately notify the Financial Intelligence Unit (FIU) of such activity. Attorneys are not subject to the notification obligation when evaluating a client’s legal position, when defending or representing the client in court, during challenge or other such proceedings, including providing the customer with consultations regarding the initiation or avoidance of proceedings, regardless of whether the information has been received before, during or after proceedings (S. 32 MLTFP Act). Performance of the notification obligation in good faith and communication of the relevant data by an obligated person is not deemed infringement of the confidentiality requirement provided by law or contract and no liability provided by legislation or contract is imposed on the person who performed the notification obligation for the disclosure of the information. An agreement derogating from this provision is void (S. 35 MLTFP Act). 27. The Board of the Bar Association exercises supervision over fulfilment of the requirements arising from the MLTFP Act and legislation by members of the Bar Association (S. 47 MLTFP Act). The supervisory authority has the right to inspect the place or the seat of attorneys and has the right to enter the building and the room that is in the possession of an attorney in the presence of a representative of the inspected person. In the course of an on-site inspection the Bar Association has the right (i) to inspect without limitations the required documents and data media; to make extracts, transcripts and copies thereof; to receive explanations regarding the documents and data media from the 145

Professional secrecy of lawyers in Europe

attorney; and to monitor the work processes; and (ii) to receive oral and written explanations from the attorney, members of the directing body or employees of the Bar Association (S. 48 MLTFP Act).

6

Treatment of a lawyer’s documents and correspondence in the context of judicial investigations 28. In accordance with the Bar Association Act, media relating to the provision of legal services by an attorney are intact and the attorney may not be detained, searched or taken into custody in circumstances arising from his or her professional activities, except on the basis of a ruling of a county court. A law office through which an attorney provides legal services may also not be searched in connection with circumstances arising from his or her professional activities (S. 43 Bar Association Act). The Code of Criminal Procedure provides that the search of an attorney’s law office may be conducted at the request of a Prosecutor’s Office and on the basis of an order of a preliminary investigating judge or on the basis of a court ruling. The attorney’s law office may be searched in the presence of the attorney. If the attorney cannot be present at the search, the search may be conducted in the presence of another attorney providing legal services through the same law office, or, if this is not possible, any other attorney (S. 91 Code of Criminal Procedure). The search of an attorney’s home is not covered by the guarantees concerning an attorney’s activities. Therefore the home of an attorney can be searched according to general rules applicable to conduct of a search. 29. In accordance with the Imprisonment Act, it is prohibited to examine the contents of a prisoner’s letters and telephone messages with criminal defence counsel (S. 29 Imprisonment Act). 30. The Code of Civil Procedure (S. 281) stipulates that regardless of the demand of the court, a document need not be submitted by an attorney who has received the document in connection with the provision of a legal service. The attorney ensures that no third person has access to the client’s documents, correspondence or other information, or to any documents drafted by the attorney in the course of rendering legal services to the client, which are in the attorney’s possession in connection with handling the client’s matter. An attorney may not make the documents or other information relative to his professional activity available to any third party, or to public offices to which the said documents or information are not addressed. Presentation or disclosure of the said documents or information to the Board or to the court of

146

Estonia

honour discussing a disciplinary case against the attorney is not deemed to be a violation of the confidentiality obligation (S. 5 Code of Conduct).

7

Tapping of telephone conversations with a lawyer 31. Information, communicated by a person on whom the obligation to maintain a professional secret has been imposed by law, which is subject to wire tapping or covert observation may not be used as evidence if such information contains facts which have become known to the person in his or her professional activities, unless the person has already given testimony with regard to the same facts or the facts have been disclosed in any other manner (S. 118 Code of Criminal Procedure). It is prohibited to examine the contents of prisoners’ letters and telephone messages with criminal defence counsel (S. 29 Imprisonment Act).

8

The lawyer as witness 32. An attorney has an obligation to keep confidential any information of the client. An attorney or employee of the Bar Association or a law office who is being heard as a witness may not be interrogated or asked to provide explanations on matters that he or she became aware of in the course of the provision of legal services (S. 43 Bar Association Act). According to the Code of Conduct of the Bar Association, an attorney may not give an account of, or testify as a witness about, the facts which have become known to him or her in the course of rendering services to a client. 33. In criminal proceedings, the defence counsel and persons on whom the obligation to maintain a professional secret has been imposed by law have the right to refuse to give testimony as witnesses concerning circumstances which have become known to them in their professional activities. The professional support staff of the defence counsel also have the right to refuse to give testimony. Defence counsels and attorneys and their professional support staff do not have the right to refuse to give testimony if their testimony is requested by the suspect or the accused. If, on the basis of law, the court is convinced that refusal to give testimony is not related to professional activities, the court may require the person to give testimony (S. 72 Code of Criminal Procedure). The Criminal Chamber of the Supreme Court noted that the aforementioned only preclude using that information as evidence that has become known to attorneys in their professional activities. Attorneys’ conclusions from information concerning the circumstances which have become known to them from third persons are not considered as professional secrets.1 1 Criminal Chamber of the Supreme Court, 26 May 2010, no 3-1-1-22-10, 15.

147

Professional secrecy of lawyers in Europe

34. In civil proceedings, persons who, due to their professional or economic activity, have been confided with information which the persons are obliged to keep confidential pursuant to law may not be heard as witnesses without the permission of the person in whose interests the duty to maintain confidentiality is imposed. Professional support staff of attorneys may also not be heard as witnesses without the permission of the person in whose interests the duty to maintain confidentiality is imposed.2

9

The lawyer and the press 35. An attorney, in relations with the public and the media, should follow the requirements of professional ethics. If, in general, an attorney may not disclose privileged information to the press, it is generally accepted that an attorney may, with the client’s consent, speak to the press in order to defend the client against allegations made in the press.

10

Powers of the tax administration and other authorities 36. An attorney, in respect of circumstances which become known to him or her in connection with the provision of legal assistance, has the right to refuse to perform an obligation to provide information or submit evidence in accordance with the Taxation Act. Persons who assist attorneys in their professional activities also have the right to refuse to disclose information in respect of facts which become known to them in the performance of their duties.3

11

State security service 37. In general, in matters relating to Estonian state security, professional secrecy should be respected. 2 See Section 256 of Code of Civil Procedure. 3 See Section 64 of Estonian Taxation Act.

148

10 Finland petri taivalkoski Partner, Roschier Attorneys Ltd

juho vuori Associate, Roschier Attorneys Ltd

Preliminary note 150 1 Scope of and limitations on professional secrecy 150 A Statutory basis and implications 150 B Scope 152 C Persons subject to the duty of professional secrecy 155 D Limitations and derogations 155 E Law firms 156 F Legal assistants and staff 158 G External service providers 158 H Multidisciplinary associations 158 2 History 159 3 Supervision 159 A The Bar Association 159 B The courts 160 4 Sanctions 161 A Proceedings and sanctions 161 a Disciplinary and criminal sanctions 161 b Damages 162 c Criminal sanctions 162 d Disciplinary procedure 164 B Relationship between criminal sanctions and disciplinary sanctions 165 5 Duty to provide information to the authorities 165 A Money laundering and terrorism 165 B The Enforcement Code 166 C The Criminal Code 166 6 Treatment of a lawyer’s documents and correspondence in the context of judicial investigations 167 7 Search of a lawyer’s office 167 8 Tapping of telephone conversations with a lawyer 167 9 The lawyer as witness 168 10 The lawyer and the press 170 11 Powers of the tax administration and other authorities 170

149

Professional secrecy of lawyers in Europe

12 State security service 13 Future, and conclusion

171 171

Preliminary note∗ 1. An attorney’s duty of confidentiality is one of the basic notions of the Finnish legal system. Trust in the client relationship is based on confidentiality, and the duty of confidentiality protects the client’s privacy and forms one of the prerequisites for a fair trial. The duty of confidentiality is regulated both in statute and in soft law, and it is enforced by the Finnish Bar Association and the courts. .

2. The Bar Association derives its supervisory and disciplinary mandate from the Finnish Advocates Act (12.12.1958/496, as amended – the Advocates Act). Lawyers admitted to the Bar in Finland must comply with the Code of Conduct (Fin. Hyv¨aa¨ asianajotapaa koskevat ohjeet, Swe. Reglerna om god advokatsed). The Bar Association adopted the Code of Conduct in 1972, and in 2009 the Code of Conduct went through a full reform, without, however, major changes to the fundamental principles. The term ‘attorney’ (Fin. asianajaja, Swe. advokat) is used here when referring to admitted members. 3. According to the Advocates Act and the Code of Conduct, attorneys are subject to the duty of secrecy (Fin. salassapitovelvollisuus, Swe. sekretessplikt) and the duty of confidentiality (Fin. vaitiolovelvollisuus, Swe. tystnadsplikt). These cover the secrets of a natural person and family, business and trade secrets, and any information regarding the client or their circumstances that the attorney may become aware of. For clarity, the term ‘confidentiality’ is used here to designate the attorney’s confidentiality obligations in general. 4. The duty of confidentiality is said to be the right of the client and the duty of the attorney. The client is therefore ‘the master of the secrets’. The duty of confidentiality’s primary purpose is to protect the client’s trust in the attorney. However, the right and duty of confidentiality are limited by statutory and other regulatory derogations in favour of public interest.

1

Scope of and limitations on professional secrecy

A

Statutory basis and implications 5. The legal basis of the duty of confidentiality, as well as of the consequences of its breach, is established in several statutes. The duty is specifically confirmed in the applicable by-laws. ∗

150

The authors wish to thank Aini Juopperi for her invaluable work on this chapter.

Finland

6. First, Chapter 15, Section 17, of the Finnish Code of Judicial Procedure (1734/4, as amended – the Code of Judicial Procedure) imposes a duty of confidentiality of anyone acting as counsel in court. Under said provision, a counsel or his or her assistant may not without permission disclose a private or family secret entrusted to him or her by a client, nor similar confidential information received by him or her in the course of his or her duties. A breach of said duty of confidentiality is punishable under Chapter 38, Section 1 or 2, of the Criminal Code, unless the act is punishable under Chapter 40, Section 5, of the Criminal Code or unless a more severe penalty is provided elsewhere in the law.1 7. Chapter 15, Section 17(2), of the Code of Judicial Procedure provides for a statutory criminal sanction for breach of the duty of confidentiality. The criminal sanction is contained in the Finnish Criminal Code (19.12.1889/39, as amended – the Criminal Code), which encompasses both offences and (less aggravated) violations of the duty of secrecy. 8. Second, under Section 5(c) of the Advocates Act an attorney or his or her assistant shall not, without due permission, disclose the secrets of an individual or family or business or professional secrets which have come to his or her knowledge in the course of his or her professional activity.2 9. Although these statutory provisions form the legal foundation for the duty of confidentiality, the duty is further expressed in the Statutes of the Bar (2004/934, as amended – the Statutes of the Bar) and the Code of Conduct. These have both been enacted by the Bar Association. 10. The Statutes of the Bar form the regulatory basis for the Code of Conduct and have been confirmed by the Ministry of Justice.3 In essence, the Statutes of the Bar (Sections 35–7) state that attorneys must comply with the Code of Conduct, and in particular, where law or the Code of Conduct so requires, remain silent on such matters which the attorney has become aware of in the course of his or her work. 11. Section 3(4) of the Code of Conduct widens the scope of these obligations from what is stated in the Advocates Act, as it refers both to ‘the duty of secrecy’ and to ‘the duty of confidentiality’ in the following terms: An attorney shall not, without due permission, disclose the secrets of an individual or a family, nor disclose any business or professional secrets that have come to his/her

1 Unless otherwise stated, all statutory translations here are unofficial translations. 2 The next subsection further penalises breach of the duty of confidentiality in accordance with the Criminal Code, similarly to the Code of Judicial Procedure. 3 Decision of the Ministry of Justice dated 29 October 2004 (Document no 191).

151

Professional secrecy of lawyers in Europe

knowledge in the course of his/her professional activities (the duty of secrecy). Furthermore, an attorney may not, without due permission, disclose any other information about the client and the client’s circumstances that he/she has learnt in the course of his/her professional activities (the duty of confidentiality).

B

Scope 12. In determining the scope of an attorney’s duty of confidentiality, it is necessary to look at how the provisions in the various statutes and by-laws are interpreted in practice. Notably, the definition of confidential information varies in these statutes and by-laws. What also varies is the context in which the confidentiality issue must arise in order to be covered by the statute or by-law (e.g. when testifying in court, acting as counsel in court, providing general legal advice outside court or talking to the press). 13. The first criterion in identifying confidential information is the type of information in question. A definition of confidential information, applicable to any attorney or other counsel appearing before court, is found in Chapter 15, Section 17, of the Code of Judicial Procedure, which defines confidential information as a private or family secret or other such confidential matter. Chapter 15, Section 17, applies only in connection with litigation in courts and, as such, business secrets are not considered to be within its scope of application. Nevertheless, under the Finnish Criminal Code a person may commit a punishable violation of a business secret if he or she discloses the business secret in order to obtain financial benefit for himself or herself or another, or in order to injure another, or when otherwise unlawfully utilising the business secret. Committing such violation of a business secret further requires that a counsel has gained knowledge of the business secret in question while performing fiduciary assignments and services for the client. The criminalisation of violations of business secrets and the criminal sanctions are dealt with in a more detailed manner below in paragraph 54. 14. Also, Section 5(c) of the Advocates Act defines the scope of the confidentiality obligations as covering the secrets of a private person or a family. Examples could be any information concerning the finances, health, relationships or other matters of the private person or family that is not publicly known.4 At the same time, however, under Section 5(c) confidential information covers any business and trade secrets, meaning information not publicly known (the objective criterion), the keeping secret of which provides an advantage to the ‘owner’ of that secret (the subjective criterion). Keeping this information confidential must not

4 The Government Bill, HE 94/1993 rikoslains¨aa¨ d¨ann¨on kokonaisuudistuksen toisen vaiheen k¨asitt¨aviksi rikoslain ja er¨aiden muiden lakien muutoksiksi, 242–3.

152

Finland

be insignificant to the business of the company using the information.5 The subjective criterion should, however, be limited to what a reasonable person in a similar position would consider worth keeping confidential.6 It makes no difference whether the trade secret is documented evidence or simply based on knowledge.7 15. The most extensive definition of confidential information is in the Code of Conduct, which includes a third category of confidential information. Section 3(4)(2) includes as confidential information ‘any other information about the client and the client’s circumstances’. This expression extends the scope of the confidentiality obligation to include even information relating to the client which is in the public domain.8 Such information could be, for example, the fact that the attorney represents a certain client in court, that the client is a party to court proceedings, that the client has previous convictions, that the client has become insolvent, or information about the client’s position in an organisation or on the board of a company.9 The attorney cannot disclose such information to anyone, let alone to the press.10 16. The second criterion that affects confidentiality is the context in which the attorney received the confidential information. The prohibition to testify in Chapter 17, Section 23, of the Code of Judicial Procedure extends only to confidential information that the attorney has received in the pursuit of the case. The scope of this section is nonetheless somewhat unclear.11 According to case law, receiving confidential information in the context of court proceedings extends to information received for the purposes of or in anticipation of court proceedings. This has created uncertainty in interpretation and has even been raised before the European Court of Human Rights, which considered that the provision is contrary to the requirements of the European Convention on Human Rights (ECHR) (this case is explored in more detail below). 17. The Advocates Act extends the attorney’s duty of confidentiality to information received also in contexts other than for the purposes, or in anticipation, of court proceedings – for example, in the course of giving general legal advice. 5 Committee Report KM 1971 B 24, p. 26; T. Esko and J. K¨onkk¨ol¨a, ‘Asianajajan salassapito- ja vaitiolovelvollisuuden viimeaikaisesta kehityksest¨a’ (Recent Developments of an Attorney’s Duty of Secrecy and Confidentiality) in T. Esko et al., eds., N¨ak¨okulmia asianajaoikeuteen, Edita Publishing, 2004, 171, fn 5, fn 7. 6 Esko and K¨onkk¨ol¨a, ‘Asianajajan salassapito- ja vaitiolovelvollisuuden viimeaikaisesta kehityksest¨a’, 171, fn 7. 7 Committee Report KM 1971 B 24, 26; Esko and K¨onkk¨ol¨a, ‘Asianajajan salassapito- ja vaitiolovelvollisuuden viimeaikaisesta kehityksest¨a’, 171. 8 M. Fredman, ‘Asianajajan salassapito- ja vaitiolovelvollisuuksista valvontamenettelyss¨a’ (Regarding the Attorney’s Duty of Secrecy and Confidentiality in Disciplinary Proceedings), DL no 2/2009, 230. 9 Ibid., 230–1. 10 Ibid., 230. 11 Ibid., 229.

153

Professional secrecy of lawyers in Europe

According to both the Advocates Act (Section 5(c)) and the Code of Conduct (Section 3(4)), the attorney is required to keep information confidential which has come to his knowledge in the course of his professional activity. Therefore it is not necessary for the client to be actively involved in providing the information, but information that the attorney has acquired through investigations into the matter could also be considered confidential.12 18. Preparatory works of the Advocates Act also reveal that in order to be considered confidential under Section 5(c), the information must have come to the attorney’s knowledge in relation to his assignment. Information that the attorney or his assistant received outside the assignment is not covered by the duty of confidentiality.13 In general it is considered that matters concerning the opposite side or a third party are not explicitly covered by these provisions. It could nonetheless be contrary to the Code of Conduct – and as such forbidden – to reveal the secrets of, for example, the adverse party in situations other than where it is necessary for the proper administration of the case.14 19. Also, as described in paragraph 54 below, the attorney is prohibited, under threat of criminal sanctions, from both disclosing the confidential information and making use of such a secret for the gain of him-/herself or another.15 Confidential information can be either oral or written. There is no time limit on the duty of confidentiality or secrecy, and it is therefore perpetual. 20. When a document or correspondence is considered confidential under the Code of Judicial Procedure, i.e. it is entrusted by the client to the attorney for the purposes or in anticipation of court proceedings, the attorney cannot be compelled to produce it in court or testify about its contents. Thus, concerning the prohibition to produce, or testify about, confidential information, only information within the narrower definition of the Code of Judicial Procedure is covered, as explained above. 21. It is the contents of the document or letter that determine whether it is confidential. Therefore marking a letter or document ‘confidential’ or ‘without prejudice’, or even unmarking it, does not as such determine the status of the document. Similarly, letters from one attorney to another are subject to the 12 Esko and K¨onkk¨ol¨a, ‘Asianajajan salassapito- ja vaitiolovelvollisuuden viimeaikaisesta kehityksest¨a’, 174. 13 The Government Bill, HE 94/1993 rikoslains¨aa¨ d¨ann¨on kokonaisuudistuksen toisen vaiheen k¨asitt¨aviksi rikoslain ja er¨aiden muiden lakien muutoksiksi, 242; Esko and K¨onkk¨ol¨a, ‘Asianajajan salassapito- ja vaitiolovelvollisuuden viimeaikaisesta kehityksest¨a’, 175. 14 Esko and K¨onkk¨ol¨a, ‘Asianajajan salassapito- ja vaitiolovelvollisuuden viimeaikaisesta kehityksest¨a’, 175–6. 15 The Criminal Code, Ch. 38, S. 1. This criminal sanction applies to a violation of the Code of Judicial Procedure and the Advocates Act. See also Criminal Code, Ch. 30, Ss. 5 and 6, on violations and misuse of a business secret.

154

Finland

same rules, and such letters are therefore not confidential merely because they are exchanged between attorneys.

C

Persons subject to the duty of professional secrecy 22. The duty of confidentiality extends to lawyers and other employees working for an attorney. An attorney acting as an executor of a will, arbitrator, mediator, trustee, bankruptcy agent or similar should generally be subject to the duty of confidentiality.

D

Limitations and derogations 23. As the primary principle, the client has the power to relieve the attorney from the duty of confidentiality. This is consistent with the principle that the client is the master of the secrets. Exceptions where an attorney is otherwise relieved of the duty of confidentiality are listed in the Code of Conduct. Section 4(3)(2) of this code provides that an attorney may also be released from the obligation of secrecy and confidentiality to the extent that (i) an obligation exists under the law or under the by-laws of the Bar Association, (ii) it is necessary in order for the attorney to defend him-/herself against claims made against him/her or (iii) it is necessary for the collection of outstanding receivables from a client. 24. The first category of applicable limitations includes any limitation imposed by law or the Code of Conduct. One of the most extensive limitations imposed by law is contained in Chapter 17 of the Code of Judicial Procedure, which concerns the prohibition to testify. Section 23 waives confidentiality for a witness, including an attorney, where the case involves a crime for which the minimum sentence is six years or more. Thus the interests of the client must be balanced against the interests of society at large, in case of an aggravated crime.16 25. Other statutory limitations are included in the Finnish Enforcement Code (15.6.2007/705, as amended – the Enforcement Code), the Criminal Code and the Finnish Act on Preventing and Clearing Money Laundering and Terrorist Financing (18.7.2008/503, as amended – ‘the Money Laundering Act’), which are further discussed below. The Code of Conduct itself makes an exception to the duty of confidentiality concerning supervisory matters and fee disputes decided by the Bar Association. 26. The second limitation to confidentiality in the Code of Conduct referred to above is that the attorney may disclose confidential information in circumstances where it is necessary to defend him- or herself against claims made 16 Esko and K¨onkk¨ol¨a, ‘Asianajajan salassapito- ja vaitiolovelvollisuuden viimeaikaisesta kehityksest¨a’, 190.

155

Professional secrecy of lawyers in Europe

against him or her. However, any such disclosure must not exceed what is necessary in order to achieve his or her defence, and utmost discretion is also required in other respects in applying the exception. 27. In the Finnish Supreme Court case KKO 2006:61, one of two attorneys disclosed information in criminal investigations by the police, where their client was suspected of a crime. The attorney disclosed information regarding the client in order to prevent suspicions being placed on him, where the other attorney in the same firm was already under suspicion. The issue before the Supreme Court was whether the exception to the duty of confidentiality applied to the attorney who was not yet under suspicion or charged with a crime. The Court held that the attorney had not violated his duties because he had reasonable grounds to expect that he would be suspected of the crime, as the other attorney had been. Therefore disclosure was authorised even prior to the attorney giving evidence as the accused in court, as long as this was necessary in the circumstances. 28. As the third limitation on confidentiality in the Code of Conduct referred to above, an attorney can disclose confidential information where necessary to collect receivables from the client.17 Therefore the duty of loyalty does not extend as far as preventing the collection of unpaid bills (or parts of them) through public court proceedings when the client refuses to pay. 29. The duty of confidentiality continues also in case of the client’s death or mental instability, and the scope of the duty is not affected in those circumstances. However, the attorney is at all times obliged to exercise discretion on how to use confidential information and documents entrusted to him to safeguard the client’s interests.18 In principle, this might mean refraining from disclosing certain information despite the client’s permission, where such action is necessary to safeguard the client’s interests.

E

Law firms 30. The Code of Conduct regulates how attorneys’ firms19 should organise their work so as not to compromise the confidentiality obligation or the interests of the client. The confidentiality obligation and the interest of the client are also protected as far as possible through ensuring that it is the attorneys who take the decisions concerning their firm, and who ensure that all employees comply with the duty of confidentiality. 17 The Code of Conduct (15.1.2009), Ss. 4(3)(2)(2), 4(3)(2)(3). 18 Commentary on the Code of Conduct (31.1.2011), 13. 19 Since attorneys hold no monopoly in Finland, there exist law firms which have been set up by lawyers who are not members of the Bar. Such law firms are not subject to the Code of Conduct applicable to attorneys, i.e. members of the Bar.

156

Finland

31. According to the Advocates Act, the board of directors of an attorney’s firm may consist of attorneys only. Only attorneys are permitted to be shareholders in an attorney’s firm. However, based on specific grounds, the Board of the Bar Association may grant a permit to a non-attorney. Where such permit is granted, at least two-thirds of the board members of the attorney’s firm must nevertheless be attorneys. The attorneys are responsible for making sure that the non-attorney complies with the Code of Conduct. Where the non-attorney is the managing director, he must also pass the ethics section of the Bar exam. Attorneys’ firms increasingly employ persons with, for example, economics or MSc (tech) degrees as managers. For this reason, in 2010 the Ethical Committee of the Bar Association suggested that the rules for granting permits of these types be clarified. 32. The Code of Conduct sets forth stringent requirements for the purposes of avoiding conflict-of-interest situations within the attorney’s firm. Barriers such as Chinese walls are not accepted as a way of dealing with conflicts of interest. The Code of Conduct also explicitly regulates conflict situations with respect to confidentiality in Section 6(3) by stating that an attorney may not accept an assignment if facts obtained in another assignment that fall within the scope of the obligation of secrecy or confidentiality could impair the attorney’s ability to protect the client’s interests fully. 33. As such, an attorney cannot accept an assignment in which confidential information received in a previous assignment would have significance. The rationale behind this is that in these circumstances an attorney cannot fully both supervise the interests of his new client and ensure that he does not breach confidentiality obligations towards the previous client. 34. In a 2009 decision of the Bar Association’s Disciplinary Committee, an attorney had accepted an assignment from a previous employee of his client company.20 The assignment concerned an employment dispute with the company. The attorney was held to have had a conflict of interest because during his previous assignments with the company he had received confidential information that had had an impact on the issues in the present employment dispute. 35. Section 6(3) of the Code of Conduct further provides the attorney with the possibility to obtain consent from a previous client to accept an assignment from a new client, despite there being confidential information. However, that provision specifically states that consent shall not be requested for the purposes of using confidential information in a manner harmful to the previous client.

20 See the Commentary, 37–8.

157

Professional secrecy of lawyers in Europe

F

Legal assistants and staff 36. An attorney’s employees are not directly subject to the duty of confidentiality. However, Section 11(5) of the Code of Conduct provides that an attorney must diligently supervise and monitor his employees’ work, including their compliance with the Code of Conduct.21 Employees’ compliance with the Code of Conduct naturally includes strict observance of the duty of confidentiality. 37. Liability for breach of the attorney’s supervisory obligation is strict, and where an employee violates the Code of Conduct, the attorney is liable for disciplinary consequences irrespective of whether the attorney has carefully fulfilled his supervisory duties. For example, disciplinary sanctions have been imposed on an attorney in a case where the attorney’s secretary accidentally handed over documents relating to one client to another client.22 Similarly, an attorney was held liable for disciplinary sanctions where an associate lawyer had failed to exercise sufficient care in carrying out his activities.23

G

External service providers 38. External service providers are not as such subject to the duty of confidentiality. However, according to Section 11(5) of the Code of Conduct, an attorney must ensure that anyone permanently or temporarily performing tasks for the firm comply with the duty of confidentiality. In practice, external service providers must usually be requested to sign a confidentiality undertaking concerning information which may come to their attention while carrying out their service for the attorney’s firm.24

H

Multidisciplinary associations 39. As attorneys must be independent, they can form partnerships only with other members of the Bar (Section 5 of the Advocates Act). It follows that multidisciplinary partnerships (MDPs) are not allowed in Finland. The only exception is where the Board of the Bar Association grants a permit based on special reasons. 40. The Bar Association decided not to allow MDPs in line with the CCBE’s decision not to permit such partnerships. For example, if an attorney worked in partnership with multinational auditing firms, the attorney might lack the required independence, and confidentiality could be jeopardised.25 21 22 23 24 25

158

Code of Conduct, s. 11(5). Decision of the Disciplinary Committee 2005, in the Commentary, 67. Decision of the Disciplinary Committee 2009, in the Commentary, 67. The Commentary, 68. M. Yl¨ostalo and O. Tarkka, Asianajajan k¨asikirja (The Attorney’s Handbook), Werner S¨oderstr¨om, 2001, 88.

Finland

41. The particular protection provided to an attorney’s client cannot be evaded or diminished by dividing or expanding the scope of the attorney’s practice. Based on Section 11(4) of the Code of Conduct, an attorney may not undertake activities other than the practice of law (and work immediately related to it). Also, an attorney’s firm may not divide its services so that part of the services would be outside the ambit of the Bar Association’s supervision.26

2

History 42. Safeguarding an attorney’s independence towards public authorities and other private parties, and maintaining the client’s trust in the attorney’s loyalty and independence, are considered fundamental principles for the rule of law. The duty of confidentiality in Finnish law has a central role in protecting these principles. 43. Originally the Advocates Act of 1958 did not include specific provisions on professional secrecy or confidentiality. Prior to 1995, professional secrecy and confidentiality were based on the Criminal Code of 1889. This old legal regime, based on the provisions of the Criminal Code, largely reflected Central European developments concerning professional secrecy and confidentiality in that it applied not only to attorneys but also to other counsel: doctors, pharmacists, etc., and to their assistants.27 The duty of confidentiality was not differentiated for each professional sector, and in particular the same rules applied to attorneys and other counsel. The attorney’s general duty of confidentiality was separately included in the Advocates Act in 1995 as a result of the overall reformation of the Criminal Code. 44. The importance of the attorney’s duty of confidentiality has increased over time in Finland in line with developments elsewhere in Europe. The increased importance has been affected both by human rights conventions and by the reform of the Finnish Constitution in 1995 and 1999, incorporating fundamental rights at the constitutional level.

3

Supervision

A

The Bar Association 45. In accordance with Section 6(1) of the Advocates Act, the responsibility to supervise attorneys, i.e. members of the Bar, rests mainly with the Board of the Bar Association. The Board of the Bar Association shall supervise attorneys’ 26 The Commentary, 64–5. 27 Esko and K¨onkk¨ol¨a, ‘Asianajajan salassapito- ja vaitiolovelvollisuuden viimeaikaisesta kehityksest¨a’, 167–8.

159

Professional secrecy of lawyers in Europe

fulfilment of their obligations when appearing in a court of law or before another authority, as well as in their other activities. An attorney has an obligation to supply the Board with the information required for this supervision. A member of the Board and the auditor shall not without authorisation disclose any secret information learnt in the context of the supervision. 46. The disciplinary powers are vested primarily in the Board and the Disciplinary Committee. The Disciplinary Committee consists of both attorneys and lawyers who are not members of the Bar Association. The inclusion of non-members, three in number, was intended to increase public confidence in professional supervision. These non-members have been, for example, justices of the Supreme Court and academics. The Board and the Disciplinary Committee have official accountability, meaning, amongst other things, that the same criminal sanctions apply to them as to other officials under the Criminal Code. They also function under the supervision of the chancellor of justice, who ensures that the public interest is protected.28 The final say in disciplinary matters belongs to the Court of Appeal of Helsinki and the Supreme Court. 47. A complaint can be based on any violation of the Code of Conduct by the attorney or his staff. In this respect it is worth clarifying that the Code of Conduct is not limited to the express provisions approved by the Bar, but also comprises jurisprudence in disciplinary matters and practices considered appropriate among attorneys. Consequently, the Code of Conduct is not ‘a set of rules’ but rather reflects a codification of values and principles, and the fact that there is no specific provision prohibiting certain conduct does not mean that that conduct cannot be considered contrary to the Code of Conduct in disciplinary proceedings. 48. The Bar’s authority extends only to disciplinary measures. Therefore the Bar has no jurisdiction to rule on any issues of loss or damage that an attorney’s conduct may have caused to the client.

B

The courts 49. The first instance for disciplinary complaints is the Bar Association, not the courts. The courts have jurisdiction to deal with criminal charges based on statutory breaches of confidentiality, as well as damages claims, as these cannot be dealt with by the Disciplinary Committee of the Bar. The Court of Appeal of Helsinki and the Supreme Court are also the last instances of appeal in disciplinary matters, based on Section 10 of the Advocates Act. 50. According to Chapter 15, Section 10, of the Code of Judicial Procedure, a court can deny an attorney or any other lawyer the right to appear in a case 28 Yl¨ostalo and Tarkka, Asianajajan k¨asikirja, 191.

160

Finland

should he prove to be dishonest or incompetent or otherwise unsuited for the task. The court may also deny an attorney the right to serve as counsel in the court in any matter, for at most three years. Concerning attorneys – as opposed to other lawyers – the court must also notify the Board of the Bar Association of its order to that effect.

4

Sanctions

A

Proceedings and sanctions

a

Disciplinary and criminal sanctions

51. Section 7 of the Advocates Act stipulates that the Disciplinary Committee of the Bar Association may use four different types of sanction when dealing with an attorney who has breached his obligations. In ascending order of severity these are a caution, a warning, imposing a sanction payment or, in the most serious cases, dismissal from the Bar. An attorney must be disbarred where he conducts himself dishonestly or in some other way intentionally offends the right of another while carrying out his work. Usually this means gross and repeated neglect of obligations, which often involves failure to handle client funds appropriately.29 The decision to disbar can be ordered to take effect immediately, irrespective of any appeal procedures. Where mitigating factors exist, the dismissal may be replaced by a sanction payment or a warning. In 2010, there were no dismissals from the Bar. The sanction payment is at least €500 and at most €15,000. When determining the amount of the sanction payment, the Disciplinary Committee considers the reprehensibility of the attorney’s conduct, the attorney’s level of experience in an attorney’s work, and his economic circumstances. The payment is made to the Bar Association. In 2010, there were no sanction payments ordered by the Bar. Any other offences against the Code of Conduct are sanctioned by a caution or warning. A caution or warning is also given when an attorney does something that may decrease the confidence of the general public in attorneys in general. In 2010, there were altogether seventy-one cautions and twenty-eight warnings given by the Bar. As examples of situations where cautions and warnings have been granted, the Disciplinary Committee gave a caution to an attorney who disclosed information relating to a client in the course of a loud conversation in a restaurant.30 The Disciplinary Committee also gave a warning to an attorney who had, during a client conference, spoken over the phone about the affairs of another 29 Ibid., 123.

30 Decision of the Disciplinary Committee 2008, in the Commentary, 13.

161

Professional secrecy of lawyers in Europe

client, and handled related documents in such a manner that the client who was present gained knowledge of the name and the assignment of the other client.31 52. The Disciplinary Committee further has the option of referring the attorney to a certain rule of the Code of Conduct, in order to prevent the same conduct from occurring in the future. This is not an actual sanction but rather advice to the attorney in question. This option is not stated as such in the provisions of the Advocates Act, but is nonetheless regarded as a way of ensuring compliance with the Code of Conduct. The chancellor of justice may similarly ask the attorney to familiarise himself with the requirements of the Code of Conduct. The idea is that one of the tasks of professional supervision is its function in mentoring attorneys. Lastly, in 297 cases (75 per cent of all the complaints filed with the Bar Association) in 2010, the Bar Association ordered no disciplinary sanction. The Bar Association altogether decided 396 complaints that year. There was no significant difference in the number of complaints filed or sanctions ordered in comparison to the previous year.32 b

Damages

53. As a general rule, damage claims are handled by the courts, as the Disciplinary Board has no authority to award damages. Liability for damages is determined according to the Tort Liability Act (31.5.1974/412, as amended – the Tort Liability Act) and other general tort principles.33 The attorney’s liability vis-`a-vis a client may also be contractual, based on the assignment agreement. c

Criminal sanctions

54. Both the Advocates Act and the Code of Judicial Procedure refer to Chapter 38 of the Criminal Code for imposing sanctions for breach of the duty of confidentiality. Chapter 38 encompasses both offences and (less aggravated) violations of the duty of secrecy. The most severe penalty is one year’s imprisonment, whereas the lightest penalty is a fine: Section 1, Secrecy offence, provides: A person who in violation of a secrecy duty provided by an Act or Decree or specifically ordered by an authority pursuant to an Act (1) discloses information which should be kept secret and which he or she has learnt by virtue of his or her position or task or in the performance of a duty, or 31 Decision of the Disciplinary Committee 2008, in the Commentary, 13. 32 These statistics have been taken from the Annual Report of the Bar Association, 2010–11. 33 Yl¨ostalo and Tarkka, Asianajajan k¨asikirja, 98.

162

Finland

(2) makes use of such a secret for the gain of himself or herself or another shall be sentenced, unless the act is punishable under Chapter 40, Section 5, for a secrecy offence, to a fine or to imprisonment for at most one year.

Section 2, Secrecy violation, provides: (1) If the secrecy offence, in view of the significance of the act as concerns the protection of privacy or confidentiality, or the other relevant circumstances, is petty when assessed as a whole, the offender shall be sentenced, for a secrecy violation, to a fine. (2) A person who has violated a secrecy duty referred to in Section 1, if it is specifically provided that such violation is punishable as a secrecy violation, shall also be sentenced for a secrecy violation.

In addition to Chapter 38, Chapter 30, for imposing sanctions on business offences, may also be applied to an attorney or other counsel in connection with unlawful disclosure of business secrets.34 Chapter 30, Section 5, expressly criminalises violation of business secrets and subsection 3 especially may be applied to an attorney or a counsel. Section 6, on the other hand, criminalises the misuse of a business secret. Under both Sections 5 and 6 the most severe penalty is two years’ imprisonment, whereas the lightest penalty is a fine: Section 5, Violation of a business secret, provides: (1) A person who, in order to obtain financial benefit for himself or herself or another, or to injure another, unlawfully discloses the business secret of another or unlawfully utilises such a business secret, having gained knowledge of the secret (1) while in the service of another, (2) while acting as a member of the administrative board or the board of directors, the managing director, auditor or receiver of a corporation or a foundation or in comparable duties, (3) while performing a duty on behalf of another or otherwise in a fiduciary business relationship, or (4) in connection with company restructuring proceedings, shall be sentenced, unless a more severe penalty for the act is provided elsewhere in the law, for violation of a business secret, to a fine or to imprisonment for at most two years. (2) This section does not apply to an act that a person referred to in subsection 1(1) has undertaken after two years has passed since his or her period of service has ended. (3) An attempt is punishable. 34 Esko and K¨onkk¨ol¨a, ‘Asianajajan salassapito- ja vaitiolovelvollisuuden viimeaikaisesta kehityksest¨a’, in Defensor Legis, 358.

163

Professional secrecy of lawyers in Europe

Section 6, Misuse of a business secret, provides: A person who unlawfully (1) uses in business a business secret that has been obtained or revealed through an act punishable under this Code or (2) in order to obtain financial benefit for himself or herself or another reveals such a secret shall be sentenced for misuse of a business secret to a fine or to imprisonment for at most two years. d

Disciplinary procedure

55. A disciplinary complaint against an attorney can be brought by anyone who is unsatisfied with the attorney’s conduct, although usually this is a client or the opposing party. The Board of the Bar Association may also commence disciplinary proceedings on its own initiative, and the Board can be ordered to commence such proceedings by the chancellor of justice. Under Section 7(c) of the Advocates Act, the disciplinary case becomes pending when the Disciplinary Committee receives either the written complaint; the notice of the chancellor of justice; or a notice of a court on the basis of Chapter 15, Section 10, of the Code of Judicial Procedure, or when the Disciplinary Committee decides to initiate disciplinary proceedings on its own initiative. The proceedings are usually conducted in writing, but if the attorney is disbarred or a sanction payment is ordered, an oral hearing is obligatory. In all cases, the attorney has the right to submit a response before the Disciplinary Committee makes its decision. 56. In the course of the disciplinary proceedings, the attorney is required to disclose information to the Bar Association that may have relevance in the matter, including information covered by the duty of confidentiality. During the disciplinary proceedings any document containing such confidential information, which needs to be kept confidential towards the complainant, must be included in a separate document and requested by the attorney to be kept confidential by the Disciplinary Committee. 57. There is a right to appeal to the Court of Appeal of Helsinki based on Section 10 of the Advocates Act, within thirty days of service of the decision to the attorney. The appeal procedure is the same where the attorney has been disbarred by the decision of the Board of the Bar Association. However, the person who raised the complaint may not appeal the decision. In appeal proceedings, the courts’ duty to order certain types of document to be kept confidential is stipulated in the Act on the Publicity of Proceedings in General Courts (30.3.2007/370, as amended – the Publicity Act). Under Section 9 of the Publicity Act, the court should on its own initiative consider information regarding a person’s private life or health as confidential. With 164

Finland

regard to other information that may fall within the attorney’s duty of confidentiality, such information must be requested by the attorney to be ordered confidential under Section 10 of the Publicity Act.35 The request can only concern information that is defined as confidential in other legislation, e.g. the Advocates Act (e.g. business and trade secrets) and also the Act on the Openness of Government Activities (21.5.1999/621, as amended – the Openness Act). In Section 24 of the Openness Act, there is an extensive list of confidential documents, including documents containing business and trade secrets. The ultimate decision is nonetheless at the discretion of the court, and depends on whether publicising the information would cause significant loss and damage to the interest that the duty of confidentiality was originally intended to protect. Further, as the request under Section 10 of the Publicity Act must concern information classified as confidential in another statute, confidential information within the widest scope of its definition in the Code of Conduct is not covered.

B

Relationship between criminal sanctions and disciplinary sanctions 58. A disciplinary sanction under Section 7 of the Advocates Act can be ordered even where a court has already given an attorney a statutory punishment for the same offence. However, the Board of the Bar Association will take any such punishment into account. The disciplinary decision can also be rendered prior to the court decision regarding the same offence.36

5

Duty to provide information to the authorities

A

Money laundering and terrorism 59. The Money Laundering Act is intended to facilitate the discovery and investigation of these offences. The Bar Association is responsible for monitoring attorneys’ compliance with the Money Laundering Act, and it has also issued anti-money-laundering guidance for attorneys and their firms. In order to achieve its goal, the Money Laundering Act imposes on certain businesses, including attorneys and their firms, a duty to conduct due-diligence checks on their clients. This means identifying the client and the client’s business. In addition to the due-diligence obligation, attorneys must report suspicious activities or suspicion of terrorist financing to the Money Laundering Clearing House, which is part of the National Bureau of Investigation in Finland. 35 For a thorough examination of these issues, see Fredman, ‘Asianajajan salassapito- ja vaitiolovelvollisuuksista valvontamenettelyss¨a’. 36 Yl¨ostalo and Tarkka, Asianajajan k¨asikirja, 117–18.

165

Professional secrecy of lawyers in Europe

60. However, attorneys are explicitly exempt from the duty to report to the Money Laundering Clearing House where they are acting as the client’s counsel in court proceedings. The exemption extends to providing the client legal advice concerning pre-trial investigation or other pre-trial stages or concerning instituting or avoiding legal proceedings. Also, according to the Money Laundering Act’s preparatory works, the exemption is likely to apply already where the attorney conducts the initial evaluation of the legality of the client’s current or intended business transaction.37 However, the attorney becomes subject to the duty to report and is no longer covered by the exemption where, after the initial advice, the attorney continues to actually participate in planning or carrying out such a business transaction (including filing applications in court or with other authorities).38

B

The Enforcement Code 61. According to Section 66 of the Enforcement Code, a third party, including an attorney, is obliged to inform the enforcement authority/bailiff if he holds or controls any property of the debtor, i.e. the client. However, this rule does not cover the attorney’s knowledge of the client’s property or funds, but only the property and funds that the attorney actually holds or controls.39

C

The Criminal Code 62. Chapter 15, Section 10, of the Criminal Code obliges everyone, including an attorney, to inform the authorities of an ongoing aggravated criminal act. Such aggravated criminal acts include matters ranging from imminent genocide, breach of the prohibition of biological weapons, compromising the sovereignty of Finland, murder and aggravated assault to robbery and aggravated narcotics offences. An attorney is obliged to inform the authorities of such aggravated crimes even if committed by the client. Failure to inform the authorities has been penalised in the section by a fine or imprisonment of at most six months, subject to the condition, however, that the offence or punishable attempt is in fact eventually committed.

37 Government Bill, HE 25/2008 vp Eduskunnalle laiksi rahanpesun ja terrorismin rahoittamisen est¨amisest¨a ja selvitt¨amisest¨a sek¨a er¨aiksi siihen liittyviksi laeiksi. 38 Opas rahanpesun ja terrorismin rahoittamisen est¨amisest¨a (27.2.2009), Document B17 (Guide to Prevention of Money Laundering and Funding of Terrorism), available in Finnish at www.asianajajat.fi/saantely/muut saadokset ja ohjeet, 27. 39 This was also the case under the old Enforcement Code; see Esko and K¨onkk¨ol¨a, ‘Asianajajan salassapito- ja vaitiolovelvollisuuden viimeaikaisesta kehityksest¨a’, 185.

166

Finland

6

Treatment of a lawyer’s documents and correspondence in the context of judicial investigations 63. In general, police authorities are not permitted to seize documents of an attorney. However, an exception is where the officials undertake a search of an attorney’s firm or home under the Coercive Measures Act (30.4.1987/450, as amended). According to Chapter 4, Section 2, of the Coercive Measures Act, a document that includes information subject to attorney confidentiality cannot be seized or investigated. In this respect, confidential information is defined as information which the attorney is prohibited to testify about under Chapter 17, Section 23, of the Code of Judicial Procedure.

7

Search of a lawyer’s office 64. Where a seizure results from a raid on an attorney’s firm, the attorney can apply to the court for a declaration as to whether the seizure may continue. A raid on the attorney’s home cannot, however, be prevented or interrupted by any official authority, though its appropriateness can subsequently be examined by a court, or ultimately by the European Court of Human Rights.40 The European Court of Human Rights has, in fact, considered the Finnish rules protecting attorney confidentiality in seizure situations far from satisfactory, especially as the applicable definition of what is classified as confidential information is unclear under Chapter 17, Section 23, of the Code of Judicial Procedure (discussed further in section 9, the lawyer as witness).41

8

Tapping of telephone conversations with a lawyer 65. Tapping the conversation between client and attorney by the police authorities – or, more specifically, the interception of phone calls, e-mails or other electronic communication, or other interception through a technical device – is prohibited by Chapter 5(a), Section 10, of the Coercive Measures Act. Problems arise when it is not clear when the attorney relationship has commenced. It has been suggested that contacting an attorney or a public legal adviser (as opposed to other legal professional) should be considered sufficient to cease the interception immediately.42 Compelling reasons support this broad interpretation. 40 For more on this topic and case law, see M. Fredman, ‘Kotietsint¨a ja takavarikko asianajotoimistossa’ (Search and Seizure in a Law Firm), DL no 1/2002, 75. 41 Petri Sallinen and Others v. Finland, final judgment dated 27 December 2005 (Application no 50882/99). 42 P. P¨ol¨onen, ‘Salaisten pakkokeinojen ongelmakohtia’ (The Problematic Issues of Secret Coercive Measures), in R. Haavisto, ed., Matkalla pohjoiseen: Professori Jyrki Virolaisen juhlakirja

167

Professional secrecy of lawyers in Europe

66. It has also been suggested that where the attorney him- or herself is suspected of aiding or abetting the client’s crime, or of committing the crime him- or herself, an exception to the prohibition of interception could be granted under Section 44 of the Coercive Measures Act.43 However, there remains the risk of disclosure of confidential information relating to third parties – for example, the attorney’s other clients. It has been suggested that the legislation is not sufficiently clear in this respect. In particular, it would be important to include provisions in the Coercive Measures Act that would define by whose initiative and in what kind of process calls subject to the prohibition of interception could be filtered, so that confidential information relating to, for example, other clients would remain protected.44

9

The lawyer as witness 67. Chapter 17, Section 23, of the Code of Judicial Procedure contains the prohibition to testify: (1) The following may not testify: . . . 4. an attorney or counsel, in respect of what the client has entrusted to him or her for the pursuit of the case, unless the client consents to such testimony. ... (2) Notwithstanding the provisions in subsection . . . 1(4) above, a person referred to therein, except the counsel of the defendant, may be ordered to testify in the case if the public prosecutor has brought a charge for an offence punishable by imprisonment for six years or more, or for an attempt of or participation in such an offence. (3) The provisions in subsection . . . 1(4) apply even if the witness is no longer in the position in which he or she received information on the issue on which evidence is required.45

68. Accordingly, the attorney must refuse to testify about confidential information, which is defined as matters that were ‘entrusted to him for the pursuit of the case’. Exceptions are where the client consents (subsection 1(4)) or the case involves a serious crime (subsection 3). As previously noted, confidential 26.2.2003, Rovaniemi, 2003, 365–86; T. Mets¨aranta, ‘Yksil¨on oikeusturva pakkokeinolain mukaisten telekuuntelun ja teknisen kuuntelun k¨ayt¨oss¨a (The Individual’s Protection in the Use of Phone Interception and Technical Interception on the Basis of the Coercive Measures Act), Edita Publishing Oy, 2009, 58–61. 43 P¨ol¨onen, ‘Salaisten pakkokeinojen ongelmakohtia’, 375. 44 Mets¨aranta, ‘Yksil¨on oikeusturva pakkokeinolain mukaisten telekuuntelun ja teknisen kuuntelun k¨ayt¨oss¨a, 61. 45 Unofficial translation by the Ministry of Justice.

168

Finland

information that an attorney must refuse to testify on is rather poorly defined in the Code of Judicial Procedure. 69. First, what is meant by ‘entrusted to him for the pursuit of the case’ is unclear. Previously, a broad interpretation has been suggested, i.e. any information not directly related to the trial would also fall within the prohibition to testify.46 However, in case KKO 2003:119, the Supreme Court held that a stricter interpretation applied, so that only information that the attorney had received in order to carry out the trial and other official procedures was covered. The strict interpretation supports the purpose of fact-finding at trial. The broader the prohibition to testify, the more difficult the court’s fact-finding task becomes.47 Significantly, however, this decision was a three-to-two vote, where the dissenting opinion was against the stricter approach, and considered that a broader interpretation should have been adopted. It is to some extent unclear what conclusions can be drawn from the decision. The European Court of Human Rights has subsequently held, in Petri Sallinen and Others v. Finland,48 that Chapter 17, Section 23, of the Code of Judicial Procedure fails to provide the minimum degree of protection required under the rule of law in a democratic society. The applicants complained about the search and seizure of privileged material in the first applicant’s law firm, relying on Article 8, amongst others, of the ECHR, which requires that coercive measures must be based in law (i.e. in this case the Coercive Measures Act and the Code of Judicial Procedure). The court considered that the law in question must be ‘compatible with the rule of law’, meaning it must be ‘sufficiently clear in its terms to give citizens an adequate indication as to the circumstances in and conditions on which public authorities are empowered to resort to any such measures’. After evaluating the ‘quality’ of the domestic law accordingly, the court held that the relevant text of the Code of Judicial Procedure was unclear especially as to whether the notion ‘pursuit of the case’ covers only the relationship between a lawyer and his clients in a particular case, or also their relationship generally. This ambiguousness seems not to have been corrected in subsequent case law either,49 and would therefore necessitate legislative action to align the level of protection to that required by the ECHR. 70. Second, the attorney’s obligation to refuse to testify about confidential information does not cover the attorney’s duty of confidentiality within its

46 Esko and K¨onkk¨ol¨a, ‘Asianajajan salassapito- ja vaitiolovelvollisuuden viimeaikaisesta kehityksest¨a’, 178. 47 Ibid., 179. 48 Final judgment dated 27 December 2005 (Application no 50882/99). 49 For a discussion of the topic, see M. P¨ol¨onen, ‘Euroopan ihmisoikeustuomioistuimesta: Petri Sallinen and others -tapaus’ (From the European Court of Human Rights: The Case of Petri Sallinen and Others), DL no 1/2006.

169

Professional secrecy of lawyers in Europe

broadest meaning, i.e. within the meaning of the Advocates Act and the Code of Conduct. In such cases, the attorney must state that he cannot respond to the question presented to him in the course of giving evidence, on the basis of the attorney’s duty of confidentiality. From there, it is within the judge’s discretion to decide whether or not the attorney must nevertheless respond to the question presented to him. In light of the decision of the ECtHR and the interests that the attorney’s duty of confidentiality is intended to protect, it is desirable that judges in these situations respect the attorney’s duty of confidentiality. 71. Currently, a review of Chapter 17, Section 23, of the Code of Judicial Procedure is ongoing, and therefore it remains to be seen how these particular issues will be addressed during the reform.

10

The lawyer and the press 72. An attorney is not permitted to disclose to the press any information regarding the client without the client’s prior permission. According to Section 10 of the Code of Conduct, an attorney can give public statements with the client’s permission. On the other hand, even when the attorney is authorised to publicise information, that publicity must be appropriate, and the attorney must not use the publicity to benefit his or her own purposes or reputation. 73. The attorney has an obligation to keep sufficiently in contact with the client and to expediently inform the client of any court decisions concerning the client. As the press regularly monitor court cases, they are also quick to access and disseminate any information concerning cases being processed in court. This is why it is crucial that the client becomes aware of decisions and judgments concerning him or her as soon as possible prior to these being disclosed in the media. The client must have sufficient time and opportunity to prepare public statements, and to be able to anticipate the likely press coverage in advance.50

11

Powers of the tax administration and other authorities 74. According to Chapter 3 of the Taxation Procedure Act (18.12.1995/1558, as amended), the tax authorities may demand information from a third party in order to carry out taxation, unless that third party is entitled to refuse to testify based on law. Therefore the Act does not interfere with the professional confidentiality of an attorney, who has the right to refuse to testify under the Code of Judicial Procedure.51 However, it follows that the same issues that 50 The Commentary, 20. 51 The Taxation Procedure Act is discussed in Esko and K¨onkk¨ol¨a, ‘Asianajajan salassapitoja vaitiolovelvollisuuden viimeaikaisesta kehityksest¨a’, 185. See also another article with

170

Finland

have been considered in section 8 above (the lawyer as witness), concerning the scope of the prohibition to testify, arise in respect of the powers of the tax administration.

12

State security service 75. The Finnish Security Intelligence Service (SUPO, Fin. Suojelupoliisi, Swe. Skyddspolisen) functions under the auspices of the Ministry of Interior. The SUPO is subject to the same rules on coercive measures as other authorities under the Coercive Measures Act. The SUPO and its employees have a duty of confidentiality based on Section 43 of the Police Act (493/1995 as amended) and Section 23 of the Openness Act.

13

Future, and conclusion 76. The Finnish Code of Conduct was adopted in 1972 and reformed – although with no major substantive changes – as recently as 2009. Therefore it corresponds well with current developments and the opinio communis of the Finnish legal community. The regulation of attorneys in Finland also recognises the increasingly cross-border activities of attorneys, and therefore the CCBE Code of Conduct has been confirmed by the Bar Association to apply to Finnish attorneys.52 Finally, the current regulation of attorney confidentiality is not entirely satisfactory, especially due to discrepancies in the scope of the duty of confidentiality in different contexts and interpretational uncertainty. It remains to be seen whether, and to what extent, the currently ongoing reform of Chapter 17 of the Code of Judicial Procedure can clarify this situation. an identical title by these authors, T. Esko and J. K¨onkk¨ol¨a, ‘Asianajajan salassapito- ja vaitiolovelvollisuuden viimeaikaisesta kehityksest¨a’, DL no 3/2004. 52 Section 1(2) of the Commentary.

171

11 France sabine du granrut Former member of the Paris Order Council Former member of the National Bar Council

Preliminary note 173 1 Scope of and limitations on professional secrecy 173 A Statutory basis and implications 173 B Scope 173 C Persons subject to the duty of professional secrecy 174 D Limitations and derogations 174 E Law firms 175 F Legal assistants and staff 175 G External service providers 175 H Multidisciplinary associations 175 2 History 176 3 Supervision 176 A The bar associations 176 B The courts 176 4 Sanctions 177 A Proceedings and sanctions 177 a Disciplinary procedure and sanctions 177 b Criminal proceedings and sanctions 178 c Civil proceedings and damages 178 B Relationship between criminal sanctions and disciplinary sanctions 178 5 Duty to provide information to the authorities 178 A Money laundering and terrorism 178 B The tax duties of lawyers 180 6 Treatment of a lawyer’s documents and correspondence in the context of judicial investigations 180 7 Search of a lawyer’s office 180 8 Tapping of telephone conversations with a lawyer 181 9 The lawyer as witness 181 10 The lawyer and the press 181 11 Powers of the tax administration and other public authorities 182 12 State security service 182 13 Conclusion 182

172

France

Preliminary note 1. In France, lawyers are organised in Bars attached to each Tribunal de grande instance. Each Bar is managed by a Bar Council (Conseil de l’Ordre), presided over by the bˆatonnier. Lawyers admitted to practice in a Bar in France are subject to professional secrecy whether they practise alone or in a group. This is an essential element of the professional activity of lawyers. Lawyers exercise their activity as independent professionals, and at present members of the legal department of corporations are not lawyers.

1

Scope of and limitations on professional secrecy

A

Statutory basis and implications 2. Historically, the professional secrecy of lawyers is one of the three traditional major secrets. The other two are the secret of confession and the medical secret. Its sole purpose is the protection of the public interest. The basis can be found in various legal, regulatory and professional texts: Article 66-5 of the Law of 13 December 1971, Article 226-13 ff. of the Criminal Code, Article 4 of the Decree of 12 July 2005 and Article 2 of the National Regulation, called the ‘RIN’.1 Those legal texts demonstrate that professional secrecy is a general and absolute rule of public policy with no time limit. 3. Its violation is subject to civil, criminal and disciplinary sanctions.

B

Scope 4. The scope of professional secrecy is very wide. Indeed it covers all the fields of activity of the lawyer, including counsel, defence, opinions, letters, notes, interviews, documents in file, information and confidences, regardless of the support. Only letters exchanged between lawyers indicating that they are ‘official’ are excluded from the scope of professional secrecy. Nevertheless, the use of this indication is strictly limited.2 As aforementioned, revealing a secret is not only a crime but also a violation of ethical rules that is subject to disciplinary pursuit. 1 Article 2(1) of the RIN: ‘The lawyer is the confidant of the client. Professional secrecy of lawyers is a public policy rule. It is general, absolute, and unlimited in time.’ 2 Statute no 2004-130 of 11 February 2004, now the RIN, provides that the following are not covered by professional secrecy: a letter sent as a proceedings act, a letter referring to none of the previous confidential matters.

173

Professional secrecy of lawyers in Europe

C

Persons subject to the duty of professional secrecy 5. Obviously, the lawyer him- or herself is subject to professional secrecy. He or she also has a duty to make sure that it is enforced by all those who participate in his or her professional activity. This means that in addition to the members of the firm in which he or she practises and the staff for which he or she is liable,3 all professionals with whom the lawyer may work (such as experts, consultants etc.) are subject to professional secrecy. Should there be a group practice (whatever its form), secrecy applies to the entire group. Similarly, a lawyer who takes over a case after another lawyer cannot use, in a procedure, the letters between the client and the prior counsel. 6. If the lawyer is bound by professional secrecy in an absolute manner, this rule does not apply to the client for the benefit of whom such duty has been created. Indeed, the client can freely use the information contained in a document which is protected by professional secrecy (opinion, letter, draft).

D

Limitations and derogations 7. The client him- or herself cannot free his or her lawyer of professional secrecy, even in his or her own defence. The courts implemented that rule a long time ago.4 8. Professional secrecy can only be suspended to permit the lawyer to defend him- or herself against accusations or other claims. Article 2(1) of the RIN and Article 4 of the Decree of 12 July 2005 provide that secrecy can be waived to allow the lawyer to defend him- or herself in a civil or criminal procedure. The disclosure of professional secrets hence allowed is limited to what is strictly necessary, which means that the lawyer must only reveal what is indispensable to his or her defence, remaining cautious not to step over the line. 9. A serious and impending danger is in general not an excuse to disclose a professional secret. However, Article 226-14,1◦ of the Criminal Code provides 3 Article 11 of the national collective convention of lawyers’ employees (National Labour Agreement), of 20 February 1979-JONC of 9 January 1980: ‘Employees are bound by the discipline, rules and custom of the profession, as well as the inner hierarchy of the practice. They must observe absolute discretion towards cases or fees they have access to, or even their own presence in the practice. They must respect professional secrecy, and its violation is a severe misconduct.’ 4 For instance, see Court of Appeal of Paris, 8 November 1971, published in Gazette du Palais, 1972, 1, 96. Also Supreme Court, Civil Chamber, 15 December 1885, published in Dalloz 1886, 1, 347.

174

France

that one is entitled to disclose professional secrets to judicial, medical or administrative authorities concerning matters of physical or sexual abuse inflicted on minors or people who are not able to protect themselves because of their age or physical or mental disabilities. This disclosure is not subject to disciplinary pursuit.

E

Law firms 10. All lawyers who work in a group, whatever its form, are bound by professional secrecy. Even lawyers who only share offices and expenses are bound to the professional secrecy of the other lawyers in the group. Hence the rules applying to the conflict of interest, which is an extension of professional secrecy, will apply. For instance, a lawyer cannot argue a case against the client of a lawyer who practises in the same structure.

F

Legal assistants and staff 11. All staff, including secretaries, paralegals and any other employee who has not been sworn in as a lawyer, are bound by professional secrecy pursuant to Article 11 of the National Labour Agreement. It is up to the lawyer to make sure that all staff comply with professional secrecy.

G

External service providers 12. When a service provider, such as a translator, typing service or accountant, or a fellow lawyer from another firm, is employed by a lawyer, the latter must ensure professional secrecy should they not be bound by such secrecy by their own professional rules.

H

Multidisciplinary associations 13. In France, lawyers cannot create professional groups with non-lawyers. Such prohibition is precisely based on the duty of absolute professional secrecy which cannot be shared. A decree of 22 September 2009 has authorised financial holding companies to hold shares in a law firm. This possibility is limited to creating financial links between firms of different professions. It is not permitted to create a professional firm with lawyers and other professionals. However, this decree raises the question of co-operation among different professionals, which should be strictly regulated. This is especially important if legal structures in which accountants, industrial-property consultants, notaries and lawyers work together are authorised. 175

Professional secrecy of lawyers in Europe

2

History 14. The law has never expressly mentioned or defined the lawyer’s obligation of professional secrecy. Nevertheless the idea that the lawyer is bound to professional secrecy has always been accepted as being strongly tied to the rights of the defence. The Napoleonic Code of 1810 did not expressly mention the duty to comply with professional secrecy. At the time it appeared as an absolute necessity. However, with the evolution of the practice of law, whether related to the structure in which it is exercised or to the extension of its activities, it has become necessary to define its boundaries. Hence regulation has set up rules for cases in which the lawyer was no longer alone with the client and when he had to enter new fields of activity, whether judicial, economic or financial, which could result in inquiries from the administration or the court in the name of transparency and safety. Today, the main characteristic of the law is to confirm the essential nature of professional secrecy for the lawyer while creating exceptions dictated by public policy.

3

Supervision

A

The bar associations 15. Each lawyer belongs to a Bar chosen on the basis of the location where he or she practises. Within this framework, the Bar, through its president (bˆatonnier), ensures the compliance of the lawyer with its ethical duties, one of the main duties being respect for professional secrecy. The Bar Council only has jurisdiction over ethical violations. The professional liability of lawyers falls within the jurisdiction of civil courts.

B

The courts 16. Violation of professional secrecy is a criminal offence (defined by Article 226-13 and 14 of the Criminal Code) which falls within the scope of the jurisdiction of criminal courts.5 Violation of professional secrecy only occurs if the secret was made to the lawyer while he or she was acting as such. There are two elements required for an offence to take place: disclosure of information of a secret nature and revelation of said information. 5 Article 226-13 of the Criminal Code: ‘Revelation of information subject to professional secrecy, by a person bound by professional secrecy either from his profession or from a temporary mission, is punished by a year of imprisonment and a €15,000 fine.’

176

France

These two aspects are tied, since the secret nature of information has to be appreciated in reference to those who do not have to know it. The revelation of any information is not punishable: the professional secrecy only exists if the lawyer, the holder of secret information, reveals said information to someone from whom it should have been kept secret. Furthermore, it is also a breach of duty which can be sanctioned by civil courts and result in damages (see below, no 20 in this chapter).

4

Sanctions

A

Proceedings and sanctions

a

Disciplinary procedure and sanctions

17. Claims, from lawyers and third parties, related to professional secrecy are filed with the president of the Bar. The president of the Bar can also decide to open a file without any claim being filed or upon the request of the prosecutor of the court of appeal (procureur g´en´eral pr`es la cour d’appel). The president of the Bar can order an investigation, which he can carry out directly himself or entrust to one of his representatives. The investigation is carried out in an adversarial manner and in compliance with the defence right of the lawyer subject to the investigation. 18. Should no ethical breach be ascertained at the end of the investigation, the president of the Bar will close the file. Should there be a minor breach, the president of the Bar can bring a ‘fatherly admonition’ to the attention of the lawyer; this does not constitute a disciplinary sanction and will not leave a trace in the lawyer’s file. However, should the president of the Bar deem the breach to be serious, a disciplinary procedure is opened against the lawyer. After adversarial preparation of the case the lawyer appears before the disciplinary council to be judged by fellow lawyers. The sanctions can be: a warning, a reprimand, a temporary suspension from the Bar which cannot exceed three years (the sentence can be suspended) and disbarment. The disciplinary council must render a decision within eight months after the decision which opened the disciplinary procedure or be divested from the file. The decision of the disciplinary council is made public unless one of the parties asks that the decision remain secret in order to prevent an intrusion into their private life or professional secrecy. Decisions must be justified and can be appealed during the month following their service to the parties. Professional judges who comprise the court of appeal hear the case. 177

Professional secrecy of lawyers in Europe

When the case is heard by the court of appeal, the president of the Bar and the prosecutor of the court of appeal are invited to present their arguments in the procedure. The decision of the court of appeal can be deferred to the Supreme Court (Cour de cassation). b

Criminal proceedings and sanctions

19. The procedure falls within the scope of jurisdiction of the criminal court called the tribunal correctionnel upon the direct request either of the prosecutor or of the plaintiff or following a decision of the juge d’instruction. The Criminal Code provides that the party guilty of a breach of professional secrecy can be sanctioned by one year’s imprisonment and a fine of €15,000. The decision of the court can be appealed within ten days of sentencing. c

Civil proceedings and damages

20. The victim of the breach of professional secrecy has standing to ask for damages in a civil court on the basis of Article 1147 of the Civil Code, which governs contracts between lawyers and their clients. If a procedure has been initiated in a criminal court, the civil action for damages can be presented to the criminal court.

B

Relationship between criminal sanctions and disciplinary sanctions 21. The disciplinary action is independent of the criminal prosecution and the resulting sanctions do not have the same basis. Both actions can be carried out simultaneously or in succession (the disciplinary action following the final criminal decision) and res judicata does not apply.

5

Duty to provide information to the authorities

A

Money laundering and terrorism 22. Because of its importance, money laundering, which is at the heart of organised crime, has been the subject of growing international legislation, especially at European level. Currently, two European directives6 have been transposed into French law and a third is being studied. These directives require of holders of professional secrecy, among whom are lawyers, a double duty: first they must spontaneously declare any suspicion they have of money-laundering activity; second, they must reply to the information request from TRACFIN (Traitement du renseignement et action contre les 6 Directive (CE) no 91 308, and Directive (CE) no 2001 97.

178

France

circuits financiers clandestins), which is a service of the French Ministry of Finances. ´ 23. The highest French administrative Supreme Court (Conseil d’Etat), in a decision rendered upon the request of professional organisations representing lawyers, examined the provisions of the Decree of 26 June 2006 which transposes the 2001 Directive. ´ decided that professional In its decision of 10 April 2008,7 the Conseil d’Etat secrecy owed to the client by the lawyer prevails over the duty of lawyers defined by the European provisions against money laundering. ´ first decided to censor the provisions according to which The Conseil d’Etat TRACFIN could directly ask the lawyer to communicate the information without going through the filter of the head of the Bar (Article R. 562-2-2 of the Financial Markets Code). Hence it strengthened the role of the president of the Bar and protected the attorney–client privilege and secrets between client and lawyer. It also annulled the provision of the Decree of 26 June 2006 which compromised compliance with the principle of professional secrecy within the framework of legal opinions (Article R. 563-4 of the Financial Markets Code). ´ held that the EC Directive of 4 December 2001 must The Conseil d’Etat be explained as forcing the Member States to exonerate lawyers from their vigilance and declaration duties when they are giving legal advice or a legal opinion, as well as when they defend and represent their clients in court, these activities being protected by professional secrecy. ´ stressed that when lawyers participate directly However, the Conseil d’Etat or indirectly in money-laundering activities by giving legal advice or opinions, by creating corporations or by other activities, the provisions of the Directive apply without limitation. 24. Furthermore, should a lawyer have doubts about the origin of the funds used to finance an operation defined in Article 562-2-1 of the Financial Markets Code, in respect of which he advises or otherwise assists his client, he has a duty to file a statement of suspicion with the president of the Bar to which he belongs. The president of the Bar will decide whether or not to forward such information to TRACFIN. The final decision to forward such information to TRACFIN lies with the president of the Bar. ´ In any case, pursuant to a decision rendered by the Conseil d’Etat on 10 April 2008, any legal advice given by a lawyer is excluded from the duty to file a declaration of suspicion unless it has been provided to carry out money laundering.

7 Decision no 296845, published in Recueil Lebon.

179

Professional secrecy of lawyers in Europe

B

The tax duties of lawyers 25. French tax laws require lawyers who file non-commercial tax statements to keep an account allowing the identification of clients and this is, de facto, a violation of professional secrecy.

6

Treatment of a lawyer’s documents and correspondence in the context of judicial investigations 26. In a decision of 13 December 2006,8 the Supreme Court decided that when, in the course of an investigation, documents covered by professional secrecy are seized at the client’s offices or domicile, the principle of the right of the defence must apply to the seizure. In application of Article 66-5 of the Statute of 31 December 1971 on judicial professions, letters exchanged between lawyer and client cannot be seized.

7

Search of a lawyer’s office 27. The search of a lawyer’s office is only authorised under the conditions defined in Articles 56 and 57 of the Criminal Procedure Code. The search can occur in the office or at the home of the lawyer in the presence of the president of the Bar or of a person representing the president of the Bar. The magistrate who has ordered the measure must inform the president of the Bar at the beginning of the operations about the subject of the search and the nature of the violation which the investigation concerns, and specify which documents are being sought. A general search of the firm which would violate the right of the lawyer to exercise his or her activity freely may not be carried out. Only the president of the Bar and the investigating magistrate will be allowed to read the documents which can be seized. 28. The president of the Bar can oppose the seizure of a document if he or she deems that it would violate professional secrecy. The disputed document is sealed and will be subject to a special search report which is forwarded to the juge des libert´es et de la d´etention, who will render a decision on the fate of the sealed document within five days in a decision which will explain its own basis but cannot be disputed. 8 Supreme Court, Criminal Chamber, 13 December 2006, 06-87.169, published in Le Bulletin.

180

France

During the hearing, the juge des libert´es et de la d´etention can hear the prosecution and the president of the Bar as well as the concerned lawyer. Either the documents become part of the procedural file or they are returned to the lawyer and the relevant report is destroyed, depending on the decision of the juge des libert´es et de la d´etention. Case law specifies that the documents must prove that the lawyer was party to the offending actions. 29. The purpose of the search of the lawyer’s office cannot be to discover elements in relation to an offence attributed or attributable to the client. Those rules also apply to the computer and electronic database of the lawyer, such seizure being made by copying the data.

8

Tapping of telephone conversations with a lawyer 30. Wire taps are governed by Article 100 to 100-7 of the Criminal Procedure Code. A prosecutor (juge d’instruction) can decide to wire-tap a lawyer within the framework of the investigation of a crime or of a felony. Such surveillance cannot occur if the prosecutor has not first informed the president of the Bar; failing to do so prevents using the product of the wire taps.

9

The lawyer as witness 31. A lawyer summoned as a witness in relation to his professional activity cannot be compelled to speak, since disclosing any information covered by professional secrecy would constitute a crime defined by Article 226-13 and 14 of the Criminal Code, which sanctions the violation of such secrecy. Furthermore, such testimony would also be a violation of the ethical code. For anything else outside his activity, the lawyer is an ordinary citizen and can be called as a witness.

10

The lawyer and the press 32. The principle is that legal and ethical rules prohibit disclosure to the press of any information covered by professional secrecy or by the secrecy of criminal investigations. Nevertheless one can see that practice does not always follow this rule. Indeed, the lawyer may be forced to communicate with the press in the interest of the defence of the client. 181

Professional secrecy of lawyers in Europe

11

Powers of the tax administration and other public authorities 33. Tax and customs administrations, as well as the agents of the competition authorities, have been granted by law the right to search a person’s home and possibly the office of the lawyer of said person. Such measures must be authorised by an order of the relevant tribunal de grande instance. Such searches must be conducted in compliance with the conditions set out by Article 56 of the Criminal Procedure Code pertaining to professional secrecy (see no 27 of this chapter). These rules do not require the presence of the president of the Bar. The presence of a member of the Bar is possible only upon the request of the government agency that carries out the search or of its representative.

12

State security service 34. No rule compels a lawyer to reveal a professional secret, even for state security matters. Hence a lawyer can refuse to make a statement, and to reveal what he knows, when asked to communicate information to the state security service. He is considered to be the only judge of his own conscience.9

13

Conclusion 35. Professional secrecy is a basis for the proper working of justice in a democracy. It must resist attacks from the Government stemming from the desire to fight crime and money laundering. The role of the Bar and of the president of the Bar constitutes a necessary protection to ensure the protection of the lawyer’s integrity. It is out of the question to limit it to the benefit of illusory safety and transparency. It is the duty of lawyers from all Member States to defend professional secrecy and to obtain the implementation of a common and coherent European law in this field. 9 Paris Order Council, decision of 8 March 1887.

182

12 Germany christian dahns, johannes keller Bundesrechtsanwaltskammer

Preliminary note 184 1 Scope of and limitations on professional secrecy 184 A Statutory basis and implications 184 B Scope 185 C Persons subject to the duty of professional secrecy 186 D Limitations and derogations 186 a Limitations 186 b Derogations 189 E Law firms 189 F Legal assistants and staff 190 G External service providers 190 H Multidisciplinary associations 191 2 History 191 3 Supervision 192 A The bars 192 B The courts 192 4 Sanctions 193 A Proceedings and sanctions 193 a Disciplinary proceedings and sanctions 193 b Criminal proceedings and sanctions 194 c Civil proceedings and damages 195 B Relationship between criminal sanctions and disciplinary sanctions 195 5 Duty to provide information to the authorities 195 A Money laundering and terrorism 195 B Collective settlement of debts 196 6 Treatment of a lawyer’s documents and correspondence in the context of judicial investigations 197 7 Search of a lawyer’s office 198 8 Tapping of telephone conversations with a lawyer 198 9 The lawyer as witness 198 10 The lawyer and the press 199 11 Powers of the tax administration and other authorities 199 12 State security service 199

183

Professional secrecy of lawyers in Europe

Preliminary note 1. Every lawyer admitted to the German legal profession has an independent duty of professional secrecy in accordance with the profession’s rules and regulations. This duty represents an indispensable pillar of the unique relationship of mutual trust between lawyer and client. In Germany, every lawyer is admitted to the competent regional Bar. There are twenty-seven regional Bars altogether, and one Bar at the Bundesgerichtshof (Federal Supreme Court of Justice) in Karlsruhe. These twenty-eight bars are in turn members of the German Federal Bar, which has its seat in Berlin. In Germany, a lawyer may either practise in a self-employed capacity in his or her own law practice, or as an employed lawyer in a law firm. Alternatively, members of the legal profession may also work as in-house lawyers (Syndikusanw¨alte) for commercial businesses or associations. This chapter focuses on the professional secrecy of self-employed lawyers and lawyers employed by law firms, or working for a law firm on a freelance basis. First, this chapter will provide a general outline of the scope of the duty of professional secrecy and then discuss in greater detail some of the most relevant exemptions from the duty of secrecy.

1

Scope of and limitations on professional secrecy

A

Statutory basis and implications 2. The lawyer’s professional duty of secrecy is stipulated by law in Section 43(a), paragraph 2, of the Federal Lawyers’ Act (Bundesrechtsanwaltsordnung, BRAO). Section 2 of the Rules of Professional Practice (Berufsordnung, BORA) provides a more detailed definition of this general professional duty. Whereas the BRAO is a formal act of law, passed by the German parliament, the BORA is a by-law, adopted by the Satzungsversammlung, the legislative assembly of the German legal profession, i.e. the German lawyers’ parliament. Together with independence and the prohibition to represent conflicting interests, the professional duty of secrecy is one of the lawyer’s most important fundamental duties.1 The obligation to observe confidentiality protects the client’s individual interest in not having confidential information, which often relates to the client’s sphere of personal privacy, disclosed to others without his or her knowledge. Furthermore, the scope of Section 43 BRAO aims at safeguarding the common good: the common good refers to the protection of the general public’s trust in the lawyer’s discretion as an indispensable component of an administration of justice which is based on the principles of 1 Martin Henssler and Hanns Pr¨utting, Bundesrechtsanwaltsordnung: BRAO, 3rd edn, Munich: C. H. Beck, 2010, S. 43(a), marginal note 44.

184

Germany

the rule of law.2 In this context, there is no conflict with the public interest if the client is the ‘master of the secret’ and the lawyer is not permitted to disclose the information confided in him or her against the client’s will or without his or her consent. However, if the lawyer has been released from the secrecy obligation by the client, the opposite is the case. In this case, the lawyer not only has a right to speak out, but is obliged to testify if called as a witness in court. 3. The lawyer’s duty of professional secrecy is not specifically mentioned in the lawyer–client contract. This duty, as it is a statutory rule, is rather the basis of any casework and is thus considered a matter of course. Should a lawyer violate this confidentiality obligation by passing on information without the client’s consent or against his or her will and without having been released from this obligation, such behaviour will have consequences under professional law, criminal law and, possibly, civil law (see no 24 of this chapter). The violation of the lawyer’s duty of secrecy is subject to criminal sanctions (S. 203 Criminal Code).

B

Scope 4. The scope of protection provided by Section 43(a), paragraph 2, BRAO covers ‘everything that has become known to the Rechtsanwalt in professional practice’. Hence, a connection between the act of acquiring knowledge and performing professional duties must exist at all times. Even the earliest initial stage of a case is part of a lawyer’s professional practice and therefore subject to the duty of secrecy. 5. With respect to professional secrecy, it is irrelevant whether the lawyer obtained the information from the client him- or herself, from third parties or in the course of his or her own research, if this knowledge is in any way relevant to the case.3 Any knowledge obtained by coincidence may also be subject to the obligation of confidentiality, provided that it was only due to his or her professional activity that the lawyer was in a position to acquire that particular knowledge.4 However, information received from third parties which does not at least affect the client’s interests is not subject to the duty to observe secrecy under Section 43(a), paragraph 2, BRAO. A lawyer is therefore not obliged to keep third-party information secret.5 2 Federal Supreme Court ruling (Bundesgerichtshof), BGHZ 109, 261, 268 ff. = NJW 1990, 510, 511 ff. 3 Kammergericht, JW 1920, 1040. 4 Thomas Fischer, Strafgesetzbuch, 59th edn, Munich: C. H. Beck, 2011, S. 203, marginal note 9. 5 Lawyers’ Disciplinary Court (Anwaltsgericht) Rostock, BRAK-Mitt. 2007, 227; R¨upke, NJW 2002, 2835.

185

Professional secrecy of lawyers in Europe

6. Since only information obtained in the pursuit of professional activities is subject to confidentiality, the facts acquired by a lawyer because of his or her profession are in principle not subject to professional secrecy. There is no inherent connection with a case, for example, if a lawyer receives information as he or she attends a court session which does not relate to his or her own client’s case. The lawyer is therefore free to use privately acquired information at his own discretion. This also applies if the lawyer has obtained the same information earlier or receives it later, by virtue of his or her profession, but he or she should carefully examine whether the privately and professionally acquired facts are identical. If the facts are indeed identical or inseparably connected, the lawyer must remain silent.6

C

Persons subject to the duty of professional secrecy 7. In accordance with Section 2, paragraph 4, BORA, the Rechtsanwalt shall explicitly require his or her staff and anyone participating in his or her professional activity to observe the duty of confidentiality. Like the lawyer him- or herself, staff are subject to non-disclosure sanctioned under criminal law pursuant to Section 203, paragraph 3, of the German Code of Criminal Procedure, and are privileged from testifying.

D

Limitations and derogations

a

Limitations

8. German law provides for a few exceptions to the principle of strict compliance with the duty of secrecy. If special requirements are met, a lawyer may even be obliged to disclose certain information, whereas the lawyer in the event of derogation may decide whether to disclose the respective information. 9. Section 43(a), paragraph 2, BRAO provides for two exceptions to the obligation of confidentiality. No obligation exists in respect of ‘facts that are obvious’. The same applies to facts that ‘do not need to be kept secret from the point of view of their significance’. Obvious facts are facts that are generally known to anyone who is reasonably circumspect and experienced, or facts that one can easily ascertain with the help of generally accessible and reliable sources of knowledge.7 10. The obligation to observe confidentiality is no longer applicable once the client, being ‘master of the secret’, explicitly or by implication releases the 6 Higher Regional Court (OLG) Cologne, MDR 1973, 857. 7 Federal Constitutional Court, BVerfGE 10, 177 = NJW 1960, 31.

186

Germany

lawyer from this duty. This is based on the condition that the client understands and is able to recognise and to judge the situation and is aware of the consequences of the lawyer’s release from the duty of professional secrecy. If the client is a legal entity, the consent of the competent body is required.8 If a client complains about his or her lawyer to the Bar, such action always implies a release from the confidentiality obligation since it is necessary to clarify the facts. If a client discharges his or her lawyer from the duty of secrecy, this postulates an obligation to give evidence on the lawyer’s part pursuant to Section 53, paragraph 2, German Code of Criminal Procedure (StPO) and Section 385, paragraph 2, Code of Civil Procedure (ZPO); the lawyer loses his or her privilege from testifying. The client may revoke consent to discharge the lawyer from the duty of professional secrecy at any time and without having to meet particular prerequisites. 11. Apart from the client’s release from the obligation of confidentiality, there are other situations which allow or even oblige the lawyer to violate his or her professional privilege without the client’s consent or even against the latter’s express wish. 12. In accordance with Section 2, paragraph 3, BORA, the obligation of confidentiality does not apply where the law provides for exceptions. Explicit derogations from this rule are provided by the Code of Criminal Procedure. Thus a lawyer is subject to a reporting requirement pursuant to Section 138 and Section 139, paragraph 3, sentence 2, StPO, if he or she obtains knowledge of certain serious crimes planned by a client. 13. Where a lawyer acts for a client in the framework of a purchase or sale of real estate or a business, where he or she manages funds or securities, opens or manages the respective accounts or deposits, assists in procuring the means necessary to set up a business, or assists in establishing or managing a trust company, Section 11 of the German Money Laundering Act (GwG) lays down a reporting requirement for instances where facts transpire which lead to the conclusion that a particular transaction serves the purpose of money laundering in accordance with Section 261 StPO or would do so if it were carried out. In accordance with Section 11, paragraph 3, GwG, the reporting requirement is not applicable if the suspicion regarding an intended act of money laundering is based on information which the lawyer received in the framework of providing extra-judicial or judicial advice or litigation counselling. However, Section 11, paragraph 3, GwG provides for a reverse exception if the lawyer is aware that the client is consciously seeking legal assistance for 8 Federal Supreme Court (BGH), NJW 1990, 510.

187

Professional secrecy of lawyers in Europe

the purpose of money laundering. In such cases the reporting requirement remains. It is inadmissible to inform the client that a report has been submitted; pursuant to Section 17, paragraph 1, no 2 GwG, this is considered an administrative offence and may be punished with a fine of up to €50,000. 14. Cases which fall into the ‘safeguarding justified interests’ group in the meaning of Section 2, paragraph 3, BORA also constitute a derogation from the duty of professional secrecy. The enforcement of claims arising from the lawyer–client relationship may justify the disclosure of circumstances that are subject to secrecy. This applies in particular to the assertion of claims to outstanding fees. The client must not be allowed to abuse the right to informational self-determination for the purpose of evading legitimate claims to payment. If a lawyer is unable to enforce his remuneration before a court without disclosing client-related details, there is a necessity to safeguard justifiable interests. However, the lawyer may only disclose details to an extent which is reasonable and necessary. The disclosure of highly important secrets to enforce a small claim would be disproportionate. The case of defending claims from a lawyer–client relationship which may invariably justify a violation of the obligation of confidentiality arises where the client seeks recourse from the lawyer for alleged malperformance. To the extent necessary to safeguard his or her own interests, the lawyer may disclose exonerating material. In such cases the secrecy obligation vis-`avis professional liability insurance no longer applies either, since the lawyer is bound to notify the insurance company in writing immediately if a client files a claim against him or her. The same applies if the lawyer’s defence in a criminal procedure requires the disclosure of confidential information provided by the client.9 If a disciplinary action is brought against a lawyer on the basis of a client’s complaint, the lawyer may put forward whatever is necessary to defend him- or herself. However, should the proceedings be instituted ex officio or in response to a complaint by a third party, the protection of secrecy takes priority. In this respect, Section 56, paragraph 1, sentence 2, BRAO provides for the lawyer’s right to refuse to supply information, which also allows him or her to refuse the presentation of reference files. 15. In Germany, the question whether it is possible according to the legal profession’s rules and regulations for a lawyer to assign outstanding fees to another lawyer without the client’s consent was a controversial issue of discussion for a long time. The amendment of Section 49(b), paragraph 4, BRAO which came

9 Federal Constitutional Court (BVerfG), NJW 1987, 1929.

188

Germany

into effect on 18 December 2007 now makes it clear that the assignment of outstanding claims or the transfer of their collection to other lawyers or legal practices in the meaning of Section 59(a), paragraph 1, BRAO is admissible even without the client’s consent. The assignment of fees to third parties who are not Rechtsanw¨alte, however, requires the client’s written consent or a legally binding finding of such a claim. 16. The requirement to maintain secrecy gains particular practical importance when a legal practice is sold. The Federal Supreme Court found that a sales contract for a law practice in which the seller obliges him- or herself to hand over client files without the clients’ consent violates their right to informational selfdetermination and thus the professional duty of confidentiality.10 In accordance with Section 134 German Civil Code (BGB), the transfer of title to the law practice is void. The Federal Supreme Court,11 however, recognises that a violation of the duty of secrecy is ruled out if the seller’s name continues to be included on the practice’s letterhead for several months (principle of gradual transition). Such an at least temporary ‘apparent’ partnership (Außensoziet¨at) corresponds to a merger of law practices, in which case clients are generally not required to give their consent to the transfer of personal data and files. b

Derogations

17. In the event the client releases the lawyer explicitly or by implication from the duty of professional secrecy, the German Rules of Legal Practice do not give the lawyer the possibility to decide whether or not to disclose information. The client is the ‘master of the secret’ and hence a lawyer has no discretion to hold back information when the client has decided on the release of information. Therefore a lawyer even has to disclose information in court if, in his or her opinion, the disclosure is contrary to the client’s interest.

E

Law firms 18. Lawyers are subject to confidentiality not only vis-`a-vis outsiders, but also vis-`a-vis other members of their profession. Thus information may only be shared with employees and other partners of a firm with the client’s consent. As a rule, the client’s consent is implied in a brief since the client will usually engage the services of a firm as a whole and will wish to take advantage of all human resources available.12 Where lawyers do not practise jointly in a firm, but only share their office premises, confidentiality must be observed as a matter of principle since, in this case, the lawyers still practise on their own and are independent from each other, 10 NJW 1996, 2087. 11 NJW 2001, 2462. 12 Federal Supreme Court (BGH), BGHZ 148, 97 (102) = NJW 2001, 2462 (2463).

189

Professional secrecy of lawyers in Europe

and it is not the joint office as such that has been given the case. Therefore it may not be assumed that the client agrees to sensitive information being shared with other professionals of that joint office,13 unless there is reason to believe that this is the case.

F

Legal assistants and staff 19. In accordance with Section 203, paragraph 3, sentence 2, Code of Criminal Procedure, ‘professionally active assistants’ are liable to punishment if they violate private secrets. This includes all secretarial staff, receptionists and office messengers. Persons in charge of cleaning office premises or of technical maintenance are exempt from the duty of secrecy.14

G

External service providers 20. To increase efficiency and reduce costs, lawyers more and more often resort to external service providers. Within the framework of outsourcing agreements, typing pools, translation services and even the entire secretarial staff are outsourced. The issue whether and under what conditions German lawyers are allowed to assign IT and other office-related services to non-lawyer third parties continues to be controversial. The risk of criminal sanctions imposed on legal professionals entrusted with confidential information who outsource IT services without the consent of the holder of the secret still persists. Therefore the German Federal Bar has for some time now taken the view that Section 203 Criminal Code has to be amended to impose a duty of secrecy on IT service providers, similarly to assistants – a duty which is subject to legal sanctions. However, since such new rules do not confer an entitlement to disclosure on professionals entrusted with confidential information, such powers must be granted in addition; disclosing the secrets of others remains punishable, even if done vis-`a-vis persons who are subject to a secrecy obligation under penalty of law themselves. The debate continues as to whether or not providers of typing services, translation services etc. can be classified as ‘assistants’ in the meaning of Section 203 StPO. Influential voices reject this point of view, arguing that this would entail a risk of excessive inflation of the right to refuse to give evidence. This is again challenged by several court decisions, which e.g. consider a private investigator and a self-employed business consultant as legal assistants within the meaning of Section 53(a) StPO. Accordingly, it would have to suffice that a lawyer has commissioned a third party to perform tasks which are part of the set of tasks of the authorised party. In conclusion, the issue of admissibility 13 Kammergericht, NJW 1992, 2771, 2772.

190

14 Sassenberg, AnwBl 2006, 196, 197.

Germany

will have to be decided on a case-by-case basis. A distinction needs to be made between telephone services alone and tasks such as typing. As regards external typing pools, the abstract risks for breaches of confidentiality are usually significantly higher.15

H

Multidisciplinary associations 21. In Germany, lawyers may enter into multidisciplinary partnerships only with certain other professionals. Section 59(a) BRAO stipulates that Rechtsanw¨alte may only associate professionally with other Rechtsanw¨alte, patent attorneys, tax advisers, tax agents (Steuerbevollm¨achtigte), auditors and certified accountants within the framework of their own professional rights. Lawyers may, however, co-operate with members of other professions provided they are geographically separated. When retaining a multidisciplinary partnership, it has, in principle, to be assumed that the client releases the partners internally from any secrecy obligation. However, such a release solely relates to information and disclosure which is necessary for proper contract performance. If a client agrees to a sharing of information, the obligation of confidentiality is imposed on every member of the partnership on the basis of the statutory regulations governing the respective profession.

2

History 22. The lawyers’ duty of professional secrecy has a long tradition in Germany. As early as 1495 and 1555, the procedural rules of the Reichskammergericht (the German Imperial Court) contained the oath which every advocate admitted to the Imperial Court had to perform: ‘[not] to disclose to any other person matters secret or remedies disclosed to them by their own party, nor other information about their own party which they have obtained for themselves, to the detriment of their own party’.16 The duty of secrecy was not mentioned in the law on the legal profession of 1878. However, this duty was derived from the criminal sanctions for its violation by Section 300 StPO (old version).17 It is noteworthy that the duty of secrecy in Germany has always been one of the core principles of the legal profession’s code of conduct from the very beginning. Margin reference 37 of the 1929 Guidelines for Lawyers (RichtlRA) states that a lawyer’s obligation to secrecy ‘extends to anything and everything which becomes known to a lawyer on account of and during the exercise of his 15 Cf. Jahn/Palm, AnwBl 2011, 613, regarding this issue. 16 Quoted in Adolf Weißler, Geschichte der Rechtsanwaltschaft, Leipzig: Pfeffer, 1905, 127. 17 Friedlaender, S. 28 Exkurs I, marginal note 1.

191

Professional secrecy of lawyers in Europe

profession if the prevailing circumstances lead him to believe that secrecy is required in order to serve the interests of his or her clients’. In 1957, the same wording was used in Section 30 of the RichtlRA, emphasising that the duty of secrecy is ‘one of the lawyer’s most noble professional duties’. 23. The legislator did not explicitly include the duty of professional secrecy in the Federal Lawyers’ Act (BRAO) of 1959 because it took the surprising view that it was unnecessary to establish this duty, which was part of a long-standing set of rules, as a legal norm. At the time, the Bars and the courts derived the obligation of confidentiality directly from the general provision of Section 43 BRAO, which stipulates that a lawyer must exercise his profession with due diligence. The lawyer’s obligation to observe secrecy was only incorporated into the Federal Lawyers’ Act in the course of the revision of professional law in 1994 because it was deemed a determining factor of the lawyer’s professional image, and thus it finally took the place it deserves ‘as the basis of the relationship of trust between the lawyer and his or her client’.

3

Supervision

A

The bars 24. In order to be allowed to practise, lawyers have to become a member of the respective regional Bar which is competent for their admission. Being part of the self-administration of the legal profession also guarantees lawyers to be able to exercise a ‘liberal’ profession, i.e. to work independently and free of government control. The Council of the Bar supervises the compliance of its members with professional duties. The Council advises and informs Bar members on all matters pertaining to professional rules and regulations. This task does not include advisory activities concerning issues which relate to substantive law outside professional law. Furthermore, the Council, upon request, may function as a mediator in disputes arising between members of the Bar and their clients, and it is entitled to submit settlement proposals. A breach of professional duties entails sanctions under professional law, imposed – depending on the degree of guilt – by the Bar or the Lawyers’ Disciplinary Courts. A violation of the professional duty of secrecy which can be considered at least as a matter of negligence may be punished under professional law with measures imposed by the disciplinary courts.

B

The courts 25. Lawyers are not above the law and may be sued before the courts. If a client brings an action against a lawyer and claims damages under civil law on the grounds of malpractice, the case falls into the jurisdiction of the civil courts.

192

Germany

If a lawyer has committed a criminal offence, the public prosecutor may press charges before a criminal court.

4

Sanctions

A

Proceedings and sanctions

a

Disciplinary proceedings and sanctions

26. The Council of the Bar must ex officio pursue potential breaches of duty.18 Supervisory procedures are initiated on the basis of complaints submitted by other lawyers, by clients or by an opposing party, or by other parties participating in legal transactions. If action is taken in a criminal case, if a civil law claim is brought against a member of a Bar, if a default summons is issued or enforcement measures are ordered, the Council will be informed accordingly by the authorities and may initiate supervisory proceedings in accordance with professional law. Third parties, however, have no legal claim to any action, supervisory measure or correct discretionary decision taken by the Council since the supervision of the members of the Bar is not intended to serve the individual, but the general interest.19 27. Within the framework of supervisory proceedings, the Bar Council’s choice of investigative measures is rather limited. It may demand information and the submission of reference files from the lawyer concerned and summon the lawyer to a hearing. This does not apply if the lawyer invokes professional privilege or the fact that he or she could thus be exposed to criminal prosecution on the basis of an administrative offence or a violation of professional law. The lawyer has to be reminded that he or she has this right to refuse to provide information. There are no further investigative options. In any event, the lawyer must be granted the right to be heard, i.e. he or she must be given the opportunity to state his or her position before a sanction is imposed. Once the facts have been established, the Council may issue a reprimand if it reaches the conclusion that the lawyer has violated professional duties, but his or her guilt is of minor significance. The notice of reprimand has to be issued in writing and has to be reasoned. The lawyer may appeal to the Bar within one month after service of the reprimand. If the appeal is rejected, the lawyer can apply to the Lawyers’ Disciplinary Court within one month from service of the rejection, in order to obtain a decision on the lawfulness of the reprimand. 18 Gaier, Wolf and G¨ocken, Lauda, Anwaltliches Berufsrecht, 2010, S. 73 BRAO, marginal note 46. 19 Federal Administrative Court (BVerwG), NJW 1993, 2066.

193

Professional secrecy of lawyers in Europe

Should the Council be unable to clarify the facts or fail to be convinced of a violation of professional duties and no longer consider the lawyer’s guilt insignificant, the Council has a duty to propose to the public prosecutor at the Higher Regional Court that disciplinary proceedings before the Lawyers’ Disciplinary Court should be instituted. The public prosecutor, who may use any of the general investigatory measures available in criminal matters, will either close the proceedings after the investigation has been completed (if, for example, a violation of professional law cannot be sufficiently proven), or initiate disciplinary proceedings before the Lawyers’ Disciplinary Court by filing the writ of accusation. In a trial before the Court, the lawyer enjoys the same rights as an accused person in criminal proceedings. 28. The Lawyers’ Disciplinary Court’s jurisdiction is independent of any other court of justice. It is exclusively composed of lawyers who serve as honorary judges. If the Lawyers’ Disciplinary Court finds that the lawyer culpably violated one of his professional duties, it may, depending on the severity of the breach, take the following measures: (i) issue a warning; (ii) issue a caution, i.e. an order of non-eligibility for office in the Council, the Lawyers’ Disciplinary Court and the Bar’s legislative assembly for a period of five years; (iii) impose a fine of up to €25,000; (iv) impose a ban on professional practice for a period of one to five years; or (v) order exclusion from the legal profession. A caution and a fine may be imposed concurrently. 29. The Lawyers’ Disciplinary Court’s judgment may be appealed within one week after promulgation to the Higher Lawyers’ Court (Anwaltsgerichtshof). The Higher Lawyers’ Court is composed partly of professional judges and partly of lawyers. A judgment rendered by the Higher Lawyers’ Court may, under certain conditions, be appealed to the Federal Supreme Court’s Panel for matters pertaining to lawyers (Senat f¨ur Anwaltssachen am Bundesgerichtshof). b

Criminal proceedings and sanctions

30. Violation of the lawyer’s duty of secrecy is subject to sanctions and will be punished with imprisonment of up to one year or a fine (S. 203 StPO). Conviction of the lawyer is a matter of criminal jurisdiction. Judgments may be appealed to the competent higher courts within one week. Decisions at that instance may, under certain conditions, be appealed to the competent appellate courts. According to the German Code of Criminal Procedure, failing to report a serious crime that one becomes aware of is subject to punishment (S. 138 StPO). With regard to lawyers, this duty to report is limited and only applies to the most severe crimes, such as murder, genocide, abduction for the purpose of blackmail, attacks on aviation and maritime traffic by a terrorist organisation etc. (S. 139, para. 3, sentence 2, StPO). A lawyer who reports a crime pursuant 194

Germany

to Section 138 StPO, even if not obliged to do so, does not violate the duty of professional secrecy.20 c

Civil proceedings and damages

31. The duty of secrecy is also a contractual duty based upon the law of obligations. If a lawyer violates this duty, the client may claim damages before a civil court of justice (S. 280, para. 1, BGB). The onus of proof regarding the conditions of the claim and the amount of damages, however, is placed on the client.

B

Relationship between criminal sanctions and disciplinary sanctions 32. A lawyer may be held responsible before the disciplinary courts as well as any criminal court, with the latter taking absolute priority. If criminal charges are brought against a lawyer, disciplinary proceedings initiated earlier or simultaneously have to be suspended until the criminal procedure has been terminated. Findings established during the criminal procedure are generally binding for the proceedings before the disciplinary courts. Where a criminal court has imposed a sanction on a lawyer for his conduct, no disciplinary measures shall be imposed by a disciplinary court on the respective lawyer for that behaviour. Double punishment shall be avoided (ne bis in idem). Additional sanctions imposed by the disciplinary courts are only admissible where disciplinary proceedings are still warranted. A ban on professional activities or an exclusion from the legal profession does not, however, preclude a criminal conviction.

5

Duty to provide information to the authorities

A

Money laundering and terrorism 33. The Act on the Detection of Proceeds from Serious Crimes is applicable to lawyers when they assist in the planning or execution of the following transactions for their clients:21 (i) buying and selling of real property or business entities; (ii) managing of client money, securities or other assets; (iii) opening or management of bank, savings or securities accounts; (iv) procurement of funds required for the creation, operation or management of companies; (v) creation, operation or management of trusts, companies or similar structures; and (vi) acting on behalf of and for the client in any financial or real-estate transaction. 20 Henssler and Pr¨utting, Bundesrechtsanwaltsordnung, S. 43(a), marginal note 90. 21 Money Laundering Act, BGBl. Jahrg. 2008, part I, no 37, 1690.

195

Professional secrecy of lawyers in Europe

Within the scope of the Money Laundering Act, the lawyer has to meet identification requirements (S. 3 et seq. GwG) as well as reporting and recordkeeping requirements (S. 8 GwG). Furthermore, the lawyer has to report immediately – regardless of whether a suspicion exists or not – to the German Federal Bar if, irrespective of the amount of the transaction, he or she discovers facts which lead him or her to believe that money is being laundered or terrorism financed, or that an attempt to do so has been or is being made (S. 11, para. 4, GwG). The German Federal Bar may comment on the report prior to forwarding it without delay, together with its comments, to the competent law-enforcement agency, and shall send a copy to the Federal Criminal Police Office (Bundeskriminalamt). However, the lawyer is exempt from the reporting duty if the suspicion of money laundering is based on information from or about the client which was obtained within the framework of providing legal advice to that client, or representing him or her in court, unless the lawyer is aware that the client is deliberately seeking legal advice for the purpose of money laundering or financing terrorism (S. 11, para. 3, GwG). This rule shall benefit the lawyer acting in good faith, in order to protect the relationship of trust he or she entertains with the client. 34. A criminal defence lawyer who accepts fees paid in money which he positively knows to proceed from an unlawful act is liable to prosecution (S. 261 StPO). As a matter of principle, the so-called act of money laundering in fact renders anybody liable to prosecution who accepts objects or money that proceed from a crime, even if accepted in careless ignorance of the origins. In view of the freedom of professional practice guaranteed under the Constitution and the significance of criminal defence under the rule of law, the Federal Constitutional Court (Bundesverfassungsgericht), in conformity with the Constitution, has limited a criminal defence lawyer’s offence in this respect. Thus criminal proceedings may only be initiated against a criminal defence lawyer if there is concrete evidence that he or she acted in bad faith.22

B

Collective settlement of debts 35. In case of a client’s insolvency, the power over the lawyer’s right to remain silent passes on to the insolvency administrator in order to enable the latter to obtain the information that is needed for an optimal realisation of the insolvent’s assets.23 If it is not the client’s economic interests that are at stake, but the lawyer has, for example, advised the debtor in matters pertaining to criminal law, the power remains with the debtor, i.e. the client.24 22 BVerfG NJW 2004, 1305. 23 BGH NJW 1990, 510. 24 Henssler and Pr¨utting, Bundesrechtsanwaltsordnung, S. 43(a), marginal note 64.

196

Germany

Should a lawyer’s financial situation deteriorate dramatically and should he or she be forced to produce an affidavit, i.e. submit a list of his assets, he or she is also obliged to reveal details regarding outstanding fees, even if this involves disclosing the names of clients.25 Where a lawyer’s fee claims vis-`avis third parties are seized, the lawyer is under a statutory obligation to disclose information that is necessary in order for the creditor to assert the claims, even if the information provided shall be limited to the legal minimum.26 If the claims of a client vis-`a-vis his or her lawyer are seized by a third party, the lawyer is also obliged to disclose the statutorily required information to the third party.27

6

Treatment of a lawyer’s documents and correspondence in the context of judicial investigations 36. The lawyer’s right to refuse to give evidence in German criminal proceedings correlates with a prohibition of confiscation. Accordingly, any (i) written communication between an accused and his or her lawyer, (ii) notes drafted by the lawyer regarding confidential information or regarding other circumstances confided to him or her by the accused and (iii) other items, including medical records, cannot be confiscated (S. 97 StPO). However, the prohibition of confiscation only applies if the items concerned are in the custody of the lawyer or his or her assistants, such as paralegals or office employees. The defence lawyer’s correspondence is protected even if it is held by the accused or in the process of being posted (S. 148 StPO).28 The prohibition of confiscation does not apply if certain facts substantiate the suspicion that the lawyer participated in the offence or was an accessory to it after the fact, or is involved in the obstruction of justice or in the handling of stolen goods, or if the objects concerned were generated by, were used or destined to be used in, or resulted from a criminal offence. Evidence obtained by violating the prohibition of confiscation must not be used in court. 37. The situation is quite different with respect to in-house lawyers. In the opinion of the European Court of Justice (ECJ),29 communication between in-house lawyers and their non-lawyer employers is neither subject to secrecy nor exempt from confiscation. According to the ECJ, in-house lawyers, despite their admission to the legal profession and the associated duties stipulated under professional law, are not as independent of their employers as external lawyers are vis-`a-vis their clients. The in-house lawyer, according to the ECJ, is in 25 27 28 29

BGH NJW 1991, 2844. 26 BGH NJW 1999, 1544. Henssler and Pr¨utting, Bundesrechtsanwaltsordnung, S. 43(a), marginal note 98. Meyer-Goßner, Cierniak, StPO, 53rd edn, Munich: C. H. Beck, 2010, S. 97, marginal note 37. BRAK-Mitt. 2010, 259.

197

Professional secrecy of lawyers in Europe

a weaker position than an external lawyer when it comes to easing potential tensions arising between professional duties and the goals of the client. Being employed and thus economically dependent on the employer does not permit the in-house lawyer to ignore the business strategies pursued by the employer. The ability to act as an independent professional is therefore questionable.

7

Search of a lawyer’s office 38. Search warrants against lawyers who are authorised to refuse testimony, issued in an effort to produce information in respect of which a lawyer would have the right to refuse to testify, are inadmissible (S. 103, in connection with S. 160(a), StPO). The same applies to search warrants which are expected to produce objects that are subject to a prohibition of confiscation. Any information obtained in violation of this prohibition must not be used. The same applies in the event that a lawyer is incidentally affected by an action that is not directed against him or her. However, should certain facts substantiate the suspicion that the lawyer participated in the offence or was an accessory after the fact, or is involved in the obstruction of justice or in the handling of stolen goods, neither the prohibition to search nor the prohibition to use the evidence is applicable (S. 160(a), para. 4, StPO).

8

Tapping of telephone conversations with a lawyer 39. In principle, the tapping of a lawyer’s telephone is admissible.30 It is inadmissible, however, if tapping the telephone of a criminal defence lawyer contradicts the principle of unhindered written and oral communication between lawyer and client, which is a prerequisite of defence sine qua non.31 The suspicion of a defence lawyer’s involvement in an offence alone does not make a difference in this context as long as the lawyer has not been excluded from the proceedings by a court on sufficient grounds of accessoryship.

9

The lawyer as witness 40. A lawyer who is a witness is not obliged to disclose information. Regarding the examination of witnesses in criminal procedure, as well as in civil proceedings, in administrative proceedings and in other procedures as well, rights to refuse testimony in favour of the lawyer have been established which provide a legal safeguard of the duty of professional secrecy. The fact that rights to refuse testimony are granted clearly demonstrates that the lawyer’s confidentiality 30 Gaier, Wolf and G¨ocken, Zuck, Anwaltliches Berufsrecht, 2010, S. 43(a), marginal note 33. 31 BVerfG NJW 2007, 2749.

198

Germany

takes priority over the legal community’s interest in establishing the truth in civil or criminal proceedings.32 If a lawyer does not take advantage of the right to refuse testimony, he or she breaches the duty of secrecy, which, however, does not affect the utilisation of the testimony.33

10

The lawyer and the press 41. The lawyer’s obligation to maintain confidentiality applies to anybody and everybody, thus also to the press. However, the client who wants his or her secret to be kept confidential and who is also the master of the right to remain silent may release the lawyer from the duty of professional secrecy, or may agree to the lawyer disclosing information to the press.

11

Powers of the tax administration and other authorities 42. Lawyers are generally entitled to a comprehensive right to refuse to give information to the tax authority (S. 102 Fiscal Code). However, in its effort to establish the principle of equal taxation, case law based on the rulings of the Federal Fiscal Court has repeatedly restricted the lawyer’s right to remain silent.34 Lawyers may not, for example, refuse to give information regarding the reason for and the participants at meals and hospitality, by assuming implied consent and referring to their obligation of confidentiality.35

12

State security service 43. The state security service also has to respect professional secrecy. 32 33 34 35

Henssler and Pr¨utting, Bundesrechtsanwaltsordnung, S. 43(a), marginal note 43. BGH NJW 1956, 599. Henssler and Pr¨utting, Bundesrechtsanwaltsordnung, S. 43(a), marginal note 97. BGH NJW 2004, 1614.

199

13 Greece ilias tompaidis, konstantinos voulgarakis AKTIUS (Apalagaki-Kostis-Tompaidis) Law Firm Members of the Bar of Thessaloniki

Preliminary note 201 1 Scope of and limitations on professional secrecy 202 A Statutory basis and implications 202 B Scope 203 C Persons subject to the duty of professional secrecy 204 D Limitations and derogations 206 E Law firms 208 F Legal assistants and staff 208 G External service providers 208 H Multidisciplinary associations 209 2 History 209 3 Supervision 210 A The bar associations 210 B The courts 211 4 Sanctions 211 A Proceedings and sanctions 211 a Disciplinary proceedings and sanctions 211 b Criminal proceedings and sanctions 212 c Civil proceedings and damages 213 B Relationship between criminal sanctions and disciplinary sanctions 214 5 Duty to provide information to the authorities 214 6 Treatment of lawyers’ documents and correspondence in the context of judicial investigations 215 7 Search of a lawyer’s office 216 8 Tapping of telephone conversations with a lawyer 216 9 The lawyer as witness 217 10 The lawyer and the press 218 11 Powers of the tax administration and other authorities 220 12 State security service 220 13 Future, and conclusion 221

200

Greece

Preliminary note 1. In Greece, the duty to preserve professional secrecy is imposed mainly upon legal professionals who are authorised to pursue their professional activities under the professional title of ‘lawyer’ (dikhg»rov/dikigoros). All lawyers in Greece must belong to a bar association (Dikhgorik»v SÅllogov/Dikigorikos Syllogos), which sets out rules of professional ethics and discipline and a ‘Code of Ethics’ that applies to every lawyer. At the moment, there are sixty-three bar associations in Greece, one in each region where a Court of First Instance sits. Until 3 July 2011, a lawyer was permitted to practise in civil cases only in the region of his respective Bar (Art. 44 of the Code of Lawyers).1 Today, however, lawyers are allowed to practise in the region of any Bar across the country (Art. 8, para. 1, of Law 3919/2011). Despite the lawyers’ overall definition as public functionaries, their relationship with their client is governed by rules of private law. Specifically, the relationship is the so-called ‘salaried mandate relationship’ (sc”sh ”mmisqhv entolžv/shesi emmisthis entolis),2 which is regulated in Articles 713–29 of the Civil Code and in the Code of Lawyers. In such a relationship, the lawyer undertakes to conduct the affair entrusted to him by the principal (i.e. the client). Lawyers in Greece are also permitted to provide legal advice internally for a company, as long as their relationship is based on an open-ended salaried mandate contract (sÅmbash ”mmisqhv entolžv aor©stou cr»nou/symvasi emmisthis entolis aoristou chronou). The law makes no distinction between in-house lawyers and lawyers in private practice, all of whom must be members of the Bar. Since the duty of professional secrecy is imposed on all members of the Bar, Greek lawyers seem to remain unaffected (for more details see below, no 9) by the ongoing debate regarding confidentiality of advice given by in-house legal counsel.3 Furthermore, it must be underlined that attorney–client privilege also applies to legal professionals providing legal services for the state or other public entities (municipalities, social security bodies etc.). Consequently, the scope of the present chapter covers all Greek lawyers and their duty of professional secrecy.

1 Legislative Decree 3026/1954. 2 Thessaloniki Court of Appeal 1026/2006, Arm 2007, 146. 3 See the judgment of the Court of Justice of the European Union (Grand Chamber) in Case C-550/07 P, Akzo Nobel Chemicals Ltd and Akcros Chemicals Ltd v. European Commission [2010] OJ C 301/02 (hereafter Akzo Nobel), where the Court held that, under EU competition law, communications between an in-house lawyer and other members of his or her employer’s staff were not covered by attorney–client privilege.

201

Professional secrecy of lawyers in Europe

1

Scope of and limitations on professional secrecy

A

Statutory basis and implications 2. The attorney–client privilege is explicitly protected in Article 49, paragraph 1, of the Code of Lawyers4 and Article 371 of the Criminal Code.5 The former provides that a lawyer is obliged to keep inviolable the required secrecy in favour of the client, regarding any information that the client has entrusted to the lawyer. The latter imposes a duty of professional secrecy on clergymen, doctors, lawyers, nurses and other persons whom, due to their profession or their capacity, people trust with their private secrets. The attorney–client privilege is also implicitly protected in Article 50 of the Code of Lawyers;6 Article 212, paragraph 1(b), of the Code of Criminal Procedure;7 Article 400(1) of the Code of Civil Procedure;8 and Article 183 of the Code of Administrative Procedure, all of which provide that a lawyer cannot be examined as a witness in court with respect to matters that came to his or her knowledge in the framework of the exercise of his or her profession. 3. The preliminary question raised is what the above articles intend to protect. Although it is widely accepted that the general duty of professional secrecy intends to protect the client’s ‘privacy’,9 it is argued that the attorney–client privilege in particular seeks to ensure the proper functioning of the judicial 4 ‘A lawyer is obliged to keep inviolable the required secrecy in favour of his or her principal (client) regarding everything that the client has entrusted him with. Anything else which may come to his or her knowledge as a consequence of the practice of the legal profession it is left to him or her, in good conscience, to decide as to whether and to what extent he or she should depose if called as a witness.’ 5 ‘Clergymen, lawyers and all legal assistants, notaries public, doctors, midwives, nurses, pharmacists and any others, who, because of their profession or capacity, are entrusted with private matters of a confidential nature as well as their assistants, shall be punished by pecuniary penalty or imprisonment for not more than one (1) year if they disclose such matters entrusted to them or which they have learnt because of their profession or capacity.’ 6 ‘A lawyer, who confirms before a Court or Judge empowered to take evidence that his deposition would offend the professional secrecy imposed on him, shall not be obliged to give evidence.’ 7 ‘The proceedings shall be annulled if any of the following are examined (as witnesses) during the preliminary inquiry or in the main proceedings: . . . (b) defense lawyers, technical advisers and notaries public concerning what their clients confided to them; defense lawyers and technical advisers may decide according to their conscience whether and to what extent they should depose all other matters which they have learnt as a consequence of the exercise of their profession.’ 8 ‘The following persons cannot be examined, if they are summoned as witnesses: 1) clergymen, lawyers, notaries public, doctors, pharmacists, nurses, midwives, their assistants as well as the parties’ consultants, regarding the facts entrusted to them or discovered by them during the exercise of their profession, for which they have a duty of secrecy, unless such deposition is allowed by the person who entrusted them with the secret or to whom the secret refers.’ 9 E. Symeonidou-Kastanidou, ‘The Attorney–Client Privilege and Money Laundering’ (in Greek), PoinChr 2006, 290.

202

Greece

system and thus to serve the public interest.10 By guaranteeing unhindered communication between lawyer and client, it protects the latter’s right to legal assistance, which is guaranteed by Article 20, paragraph 1, of the Greek Constitution11 and Article 6 of the European Convention on Human Rights (hereinafter ECHR).12 In light of the above, it is easier to understand why Article 212, paragraph 2, of the Code of Criminal Procedure provides that the prohibition of examining a lawyer as a witness remains in force even if the lawyer has ‘been released from the obligation to observe the professional secrecy by the same party who had confided in him’. And it is also explained why Article 401 of the Code of Civil Procedure provides lawyers with a right to refuse to testify with regard to facts that came to their knowledge due to their profession, even if their client has granted them permission to do so. 4. Lastly, legal professional secrecy can also be implicitly protected by Article 233 of the Criminal Code, which penalises the so-called ‘lawyer’s perfidy’. Lawyer’s perfidy, as a criminal offence, may occur when the same lawyer represents clients with adversary interests, at the same time or successively, and, in order to assist one client, discloses information that the other has confided. 5. As mentioned above, bar associations set out rules of professional ethics and discipline and a ‘Code of Ethics’ that applies to every lawyer. Article 36, paragraph 3, of the Code of Ethics of the Athens Bar Association (hereinafter the Code of Ethics) imposes a duty of secrecy on every lawyer towards his or her clients. Moreover, Article 32, paragraph b, of the same Code provides that a lawyer cannot be examined as a witness in the framework of the exercise of his profession either before or outside the courts. Exceptionally, a lawyer may be examined as a witness when ‘important reasons’ exist and after the permission of the executive council of the Bar or, in case of urgency, of the president of the Bar. However, even in such cases, the lawyer is prohibited from disclosing information which is protected by the attorney–client privilege.13

B

Scope 6. The attorney–client privilege extends to every piece of information provided by the client to his or her lawyer, whether written or oral (Art. 36, para. 3(a), of the Code of Ethics), by reason of the conduct of the lawyer’s profession. In order to be considered protected, the information must be considered confidential, 10 K. Makridou, The Attorney–Client Privilege (in Greek), Thessaloniki: Sakkoulas, 1989, 17. 11 ‘Every person shall be entitled to receive legal protection by the courts and may plead before them his views concerning his rights or interests, as specified by law.’ 12 Ch. Chrysanthakis, ‘The Attorney–Client Privilege’ (in Greek), EDDDD 2001, 627. 13 Chrysanthakis, ‘The Attorney–Client Privilege’, 629.

203

Professional secrecy of lawyers in Europe

known only to specific people or group(s) of people, and it must be given for the purpose of receiving legal advice.14 It is irrelevant whether or not this information is provided to the lawyer in order for him or her to prepare for litigation or just to obtain some piece of legal advice. The protection of attorney–client privilege has no time limits. Neither the beginning nor the end of the ‘mandate relationship’ between lawyer and client affects the lawyer’s obligation to preserve the secrets that the party has already confided. Therefore the duty of professional secrecy also burdens the lawyer who has not been hired by the client to attend to the case, and also extends to the time when the mandate has ended, been revoked or terminated, for any reason whatsoever, including the client’s death. It is also irrelevant whether a fee for legal services has been agreed or deposited.15 Going further than all statutory provisions,16 with regard to protecting attorney–client privilege, the Code of Ethics provides that the attorney–client privilege also covers information that has already been made widespread from other sources. The scope of the duty also extends to information deriving from documents that the client entrusts to the lawyer and to any other information concerning the client that comes to the lawyer’s knowledge from his client’s witnesses or from other lawyers (Art. 36, para. 3(b–d), of the Code of Ethics). 7. Greek jurisprudence has not been strict when determining the scope of the attorney–client privilege and thus applying the relevant provisions. For example, in a case where the lawyer disclosed information regarding the mental condition of his client, the Athens Court of Appeal held that the related information ‘was neither entrusted to him by his client nor constituted facts covered by the attorney–client privilege’.17 Furthermore, the Supreme Administrative Court (SumboÅlio thv Epikrate©av/Simvoulio tis Epikratias) held that facts regarding the existence of a professional relationship per se between lawyer and client are not covered by attorney–client privilege, reasoning its judgment on the basis that attorney–client privilege does not cover facts that may well be observed or known by any person.18

C

Persons subject to the duty of professional secrecy 8. ‘Personal trust’ characterises the relationship between the lawyer and the client.19 Therefore the lawyer’s duty of secrecy derives from the very nature of this relationship.20 This does not mean, however, that the above-mentioned 14 16 17 18 19 20

204

Makridou, The Attorney–Client Privilege, 94. 15 Ibid., 69. Criminal Code, Codes of Criminal and Civil Procedure, Code of Lawyers. Athens Court of Appeal, 1719/1981, EllDni 1981, 431. Supreme Administrative Court, 2451/1984, EllDni 1984, 1640. Supreme Administrative Court, 339/1984, EllDni 1984, 429. Disciplinary Board of the Athens Bar Association, 409/2006.

Greece

duty is contractual in nature; it rather derives directly from the law and the nature of the profession. In light of the above, the attorney–client privilege not only covers the lawyer whom the client entrusts with confidential information, but also any other lawyer (partners or lawyers who work in a cost-sharing structure) who intentionally or accidentally acquires such information. Moreover, Article 371 of the Criminal Code explicitly provides that the lawyer’s assistants are bound to secrecy. Therefore associate lawyers, trainee lawyers and paralegal employees will face criminal sanctions, under the same terms and conditions as lawyers, if they violate their duty of secrecy.21 The same applies also to civil trials, where, according to Article 400 of the Code of Civil Procedure, lawyers’ assistants cannot be examined as witnesses regarding information entrusted to them by clients. 9. The legal profession in Greece is in principle considered incompatible with providing salaried employee services to any person or entity (Art. 63, para. 3, of the Code of Lawyers). However, lawyers may exceptionally provide legal advice internally for a company (‘in-house lawyers’) when remunerated on a permanent scale (Art. 63, para. 4, of the Code of Lawyers). Even in such cases, however, their relationship with the company cannot by any means be considered as an ‘employment relationship’, governed by rules of labour law, but as a ‘salaried mandate relationship’, which must be based on an openended contract.22 Accordingly, Greek in-house lawyers are not personally, functionally, structurally or hierarchically integrated within the companies for which they provide legal advice, and they enjoy, at least in principle, exactly the same level of professional independence (as well as the same obligation to uphold professional secrecy) as do external lawyers. As a consequence, it seems that the rationale of the Akzo Nobel judgment cannot affect Greek in-house lawyers, who are therefore still bound by their duty of confidentiality, in the event the European Commission Directorate General for Competition conducts inspections under Regulation (EC) 1/2003.23 The same seems to apply also under national competition law, since no special provisions regarding attorney–client privilege were included in the recently issued Competition Law (Law 3959/2011). The law merely excludes persons who cannot be examined as witnesses in criminal proceedings (e.g. lawyers, below, no 42) from the duty to provide information to the Greek Competition Commission (Epitropž AntagwnismoÅ/Epitropi Antagonismou) or to depose in front of inspectors of the Greek Directorate General for Competition (Articles 38 and 39 of Law 3959/2011 respectively). 21 I. Tentes in K. Kerameus, D. Kondylis and N. Nikas (eds.), Code of Civil Procedure: Articleby-Article Commentary (in Greek), 2000, 756. 22 Court of Cassation, 2323/2009, EPolD 2010, 607. 23 Council Regulation (EC) no 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty, OJ L 1, 04.01.2003, 1.

205

Professional secrecy of lawyers in Europe

10. A question may also be raised regarding persons who represent other people before court, although they do not have the professional title ‘lawyer’. This may occur in some limited special cases, such as labour disputes (Article 665 of the Code of Civil Procedure)24 and small-claims disputes (Article 472 of the Code of Civil Procedure),25 and before military courts (Article 226 of the Military Criminal Code).26 In the event the above-mentioned persons violate their duty of secrecy, it is clear that they do not face any disciplinary sanctions, since the Code of Lawyers applies only to registered members of the Bar (Art. 1 of the Code of Lawyers) and trainee lawyers (Art. 9 of the Code of Lawyers – see below, para. 17). However, Article 371 of the Criminal Code also applies to other persons whom people entrust with their secrets not only due to their profession, but also due to their capacity, thus making clear (although this is not verified in practice) that such people also face criminal sanctions in the event they violate their duty of secrecy. Moreover, it is further argued that the above-mentioned persons are also covered by the restrictions provided in Article 400 of the Code of Civil Procedure,27 which forbid them to depose before a Civil Court regarding information that their ‘client’ (the party they are called to represent in court) has entrusted them with. 11. Lastly, it should be noted that lawyers appointed as mediators are also covered by a duty of secrecy (Art. 10 of Law 3898/2010). In contrast, when a lawyer acts as an assignee in bankruptcy proceedings (a situation normally covered by attorney–client privilege), Greek judicial practice shows that there is no need for him or her to ask for permission from the bar association, as provided in the Code of Ethics, when called to testify before a criminal court.28

D

Limitations and derogations 12. The attorney–client privilege is subject to exceptions and derogations. The most explicit exception is provided in Article 232 of the Criminal Code, according to which a person who has reliable information regarding the commitment of a felony has the duty to announce it to the authorities. Lawyers who do not announce such information are held liable and criminally sanctioned, since Article 232, paragraph 2, of the Criminal Code provides that only persons who are related (oike©a/oikia) to the person planning the felony may be exempted 24 Which provides that the employee may be represented before court by another employee of the same type of profession, or the employer by another of his employees. 25 Providing that absent parties may be represented by their spouses or their closest relatives. 26 Which provides that in the event the lawyer appointed by the client as defence counsel is absent during the time of trial, the defendant may appoint as counsellor any army employee of his choice. 27 Makridou, The Attorney–Client Privilege, 61. 28 Ibid., 190, fn 25.

206

Greece

from the above duty. This is a case where the duty of professional secrecy is authentically (by law) outweighed by the lawyer’s duty to announce the planned commission of a criminal action, but only if such action is as serious as a felony. 13. In addition, Article 371, paragraph 4, of the Criminal Code provides that violation of the duty of professional secrecy is not an illegal act, and cannot therefore be criminally sanctioned, if aimed at the fulfilment of another duty or at the protection of legal or other justified essential interests, whether public or private, which could not be protected in another way. This, quite vague, exception from the criminal sanction of the violation of attorney–client privilege has supported the argument that paragraph 4 of Article 371 of the Criminal Code actually nullifies the lawyer’s risk to be held criminally liable.29 It seems actually that there is no reported case law in which a lawyer was convicted for violating the attorney–client privilege. 14. The most important, as well as the most common, derogation from the duty of professional secrecy is based on the client’s will, which, while irrelevant in disciplinary proceedings,30 where the lawyer may face disciplinary sanctions even if released by the client, is crucial in both criminal and civil cases. On the one hand, criminal proceedings against the lawyer may be initiated (and sanctions may be imposed on him or her) only after the client (whose attorney– client privilege has been violated) lodges an official complaint against the lawyer within a specific (three-month) term after obtaining knowledge of the violation. If the client chooses to revoke or not to file such a complaint, the crime cannot be prosecuted. On the other hand, in civil cases, if the client allows the lawyer to testify regarding information falling into the scope of professional secrecy, such testimony can no longer be annulled and it depends on the lawyer’s will to agree or refuse to testify about such information (Articles 400 and 401 of the Code of Civil Procedure). On the contrary, in criminal proceedings, Article 212, paragraph 3, provides that attorney–client privilege forbids the lawyer’s deposition, even if the client releases the lawyer from keeping professional secrecy, thus ‘protecting’ the client from false conclusions deriving from his or her possible refusal to release the lawyer from attorney–client privilege. 15. Lastly, it must be underlined that attorney–client privilege cannot be called upon to protect the lawyer who has actively and actually (through specific actions and not only through legal advice or counselling) participated in some of the clients’ criminal acts, such as when the lawyer him- or herself is prosecuted

29 K. Koutsoulelos, ‘The Lawyer’s Duty of Confidentiality’ (in Greek), NoV 2004, 1982. 30 Indeed, Articles 49 and 50 of the Code of Lawyers make no such exception, while Art. 36, para. 3, of the Code of Ethics specifically provides that lawyers must protect professional secrecy, even if the client has released them of this obligation.

207

Professional secrecy of lawyers in Europe

for harbouring a criminal or for acceptance of goods obtained by criminal acts.

E

Law firms 16. In Greece, law firms are regulated by Presidential Decree 81/2005. Article 20 of Presidential Decree 81/2005 provides that every partner of the law firm has a right to be personally informed about the legal and financial affairs of the firm. Moreover, the same article provides that an agreement to the contrary between the partners is null and void. The above-mentioned right is considered to be intuitu personae and non-transferable.31 All members of the law firm and, in this sense, the law firm itself are covered by the attorney–client privilege.32 Therefore lawyers of the firm are prohibited from disclosing confidential information to third parties who do not participate in the firm. Moreover, the attorney–client privilege is also implicitly protected in Article 27, paragraph 1, of Presidential Decree 81/2005, according to which the law firm is prohibited from representing clients with adversary interests.

F

Legal assistants and staff 17. As already mentioned, the attorney–client privilege derives directly from the law and from the very nature of the profession. In addition, Article 371 of the Criminal Code explicitly provides that the lawyer’s assistants are bound to secrecy. Therefore associate lawyers, trainee lawyers and paralegal employees will face criminal sanctions if they violate their duty of secrecy. The same persons are also exempted from testifying in civil cases (Articles 400 and 401 of the Code of Civil Procedure). Moreover, according to Article 9 of the Code of Lawyers, trainee lawyers and lawyers have the same moral and deontological ethics obligations (no doubt including protection of attorney–client privilege), which also entail the relevant disciplinary sanctions imposed on lawyers when they violate the duty of professional secrecy.

G

External service providers 18. Outsourcing of legal work is generally not very common in Greek legal practice. However, when such outsourcing involves hiring another lawyer (such as the most common form of outsourcing in practice, which is filing a petition for cassation (a©thsh anair”sewv/aitisi anaireseos) and representing the client in 31 D. Giakoumis, The New Legal Status of Law Firms (in Greek), Athens: Nomiki Vivliothiki, 2008, 49. 32 Ibid., 50.

208

Greece

front of the Court of Cassation), attorney–client privilege undoubtedly extends to the other lawyer as well. 19. On the other hand, when it comes to outsourcing services provided by non-lawyers (such as translations, secretarial work etc.), there is no special provision protecting attorney–client privilege and the lawyer should be extremely cautious to bind such persons, by specific confidentiality agreements, to protect his clients’ secrets. It is evident that if such third parties disclose any privileged information, they cannot be disciplinarily sanctioned. However, such external service providers should be considered the lawyer’s assistants, with all consequences deriving from such characterisation (see above, no 17).

H

Multidisciplinary associations 20. In Greek law, there are no special provisions regarding multidisciplinary associations between lawyers and other professionals, except for that providing that only lawyers may participate in law firms (Art. 2 of Presidential Decree 81/2005). However, nothing forbids a lawyer’s co-operating with other professionals in specific cases, if this is in the client’s interest and with his or her consent. In this case, the lawyer must ensure that professional secrecy is respected regarding all information shared with the other professionals.

2

History 21. The importance of keeping the professional secret intact was already acknowledged back in ancient Greece. According to Socrates, it is easier for someone to keep burning coal in his mouth than a secret. This natural tendency to reveal secrets – harmful as such – constitutes a social danger when it comes to confidential professions, which, due to their nature, enable those who practise them to become other people’s ‘secret keepers’. When those ‘secret keepers’, due to lack of delicacy or confidentiality, violate their duty of professional secrecy, by telling scandalous anecdotes or by fuelling the malevolence of third parties with serious disclosures, the people who entrusted them with their secrets feel despair and their families disgrace.33

Moreover, in Roman law, which has greatly influenced modern Greek law, we see how Cicero, in a lawsuit against the governor of Sicily, could not call 33 As reported in P. Iliadis, ‘The Duty of Professional Secrecy (Priests – Lawyers – Doctors)’ (in Greek), Dik 1936, 736.

209

Professional secrecy of lawyers in Europe

the latter’s advocate to witness, and that thereafter it was forbidden by law for attorneys to act as witnesses in cases in which they were advocates.34 22. Therefore it is more than reasonable that the legislators of early modern Greek history intended to protect the attorney–client privilege. Specifically, Article 447 of the Criminal Law of 1835 provided that lawyers had an obligation to maintain attorney–client secrecy and sanctioned any violation with imprisonment. Moreover, Article 44 of the Law Regarding Lawyers (N»mov per© Dikhg»rwn/Nomos peri Dikigoron) of 1926 also provided that lawyers were obliged to keep inviolable the required secrecy in favour of their clients. In addition to the above explicit protection of the attorney–client privilege, the prohibition of examining a lawyer as a witness was also evident in older legislation. Article 324 of the Civil Procedure of 1835, Article 45 of the Law Regarding Lawyers of 1926 and Article 115 of the Criminal Procedure of 1835 all provided that a lawyer could not be examined as a witness in court with respect to matters that came to his or her knowledge in the framework of the exercise of the profession.

3

Supervision

A

The bar associations 23. Bar associations in Greece have the authority to impose regulations on their members and to issue binding regulations, within the frame of their competence. If their members do not comply with such regulations or decisions, they may be held disciplinarily liable (Art. 64 of the Code of Lawyers), under the same conditions as when they violate the Code of Lawyers itself. Bar associations are obligated to conform to their Code of Ethics and to the Code of Lawyers. Regulations or decisions that are contrary to the Bar’s Code of Ethics or to the Code of Lawyers are not binding for the Bar’s members.35 Bar associations also have the authority to initiate disciplinary proceedings in case a complaint is lodged or any disciplinary offence is otherwise revealed. The disciplinary board of each bar association may exercise disciplinary powers over all of its members and may initiate proceedings on its own initiative or after a complaint, written or oral, or after an announcement by a public authority, or even after a request of the lawyer to be prosecuted (Art. 68, para. 1, of the Code of Lawyers).

34 M. Radin, ‘The Privilege of Confidential Communication between Lawyer and Client’, 16 Cal. L. Rev. 1927–8, 488. 35 Court of Cassation (Plenary Session), 13/1991, DEN 1992, 161.

210

Greece

B

The courts 24. The courts’ jurisdiction to supervise protection of attorney–client privilege lies in both civil and criminal procedures. Criminal courts are competent to impose criminal sanctions on the lawyer (or trainee, assistant etc. – see above, no 8) who violates Article 371 of the Criminal Code, regarding protection of professional secrecy. Civil courts, on the other hand, may examine the lawyer’s civil liability towards the client, deriving from legal malpractice, which could be based on violation of attorney–client privilege.

4

Sanctions

A

Proceedings and sanctions

a

Disciplinary proceedings and sanctions

25. In the event a complaint against a lawyer is filed or any disciplinary offence (either violation of professional secrecy or any other) is otherwise discovered, the president of the bar association (pr»edrov tou dikhgorikoÅ sull»gou/proedros tou dikigorikou sillogou), or his substitute, must characterise the offence and appoint a rapporteur (eishghtžv/eisigitis) from within the members of the executive council of the Bar (Art. 72, para. 1, of the Code of Lawyers). The rapporteur must investigate the case, draft a charge sheet and summon the lawyer under investigation to defend himself in writing. No sanction may be imposed before the lawyer is given an opportunity to be heard. 26. When the above proceedings are over, the rapporteur informs the president of the Bar. The latter invites the lawyer to appear before the Bar’s disciplinary board, appointed by the Bar’s executive council, at least five days before the hearing.36 The lawyer may be represented before the disciplinary board by another lawyer (Art. 73, para. 3, of the Code of Lawyers). The disciplinary board may impose the following disciplinary sanctions: (i) reprimand, (ii) monetary fine, (iii) temporary suspension from exercising the legal profession for a period from eight days to six months and (iv) permanent suspension from exercising the legal profession, under specific circumstances provided in a limitative list in Article 81 of the Code of Lawyers (e.g. in case of repeated disciplinary convictions). The sanctioned lawyer may appeal the board’s decision before the Supreme Disciplinary Board (AnÛtato Peiqarcik» SumboÅlio/Anotato Peitharchiko Simvoulio), within ten days from the decision’s service. The Supreme Disciplinary Board sits in Athens and is formed every year by the president of the Court of Cassation (&reiov P†gov/Areios Pagos) as its president, one of the 36 Supreme Administrative Court, 624/2010, NOMOS.

211

Professional secrecy of lawyers in Europe

judges of the Court of Cassation and three lawyers (Art. 242 of the Code of Lawyers). 27. According to Article 78, paragraph 3, of the Code of Lawyers, the decision of the Supreme Disciplinary Board is final and cannot be annulled by any Court. As a result, it seemed that the courts had no jurisdiction when it came to matters relating to the disciplinary powers of bar associations. The above-mentioned provision was contested before the Supreme Administrative Court as contrary to Article 20, paragraph 1, of the Greek Constitution and Article 6, paragraph 1, of the ECHR. In 2007, the Supreme Administrative Court (Plenary Session) issued its judgment,37 according to which the disciplinary boards of the country’s bar associations, despite their composition, cannot be considered ‘courts’, but rather disciplinary bodies of the administration. Therefore any provision prohibiting the contestation of an administrative action or decision before a court is deemed contrary to the Greek Constitution and the ECHR. This judgment has until today been strictly followed by jurisprudence.38 Contestation of the relevant Supreme Disciplinary Board decision creates an ‘annulment dispute’ (akurwtikž diafor†/akirotiki diafora), which must be filed before the Supreme Administrative Court. This is because such disputes are not regulated alongside disputes that arise from other disciplinary board decisions, which are under the jurisdiction of the ordinary administrative courts (Art. 1, para. 3, of Law 1406/1983) and judged as ‘substantive disputes’ (diafor”v ous©av/diafores ousias). Therefore all decisions of the Supreme Disciplinary Board may be contested before the Supreme Administrative Court.

b

Criminal proceedings and sanctions

28. The lawyer who intentionally violates the duty of professional secrecy is also subject to criminal sanctions. Specifically, Article 371 of the Criminal Code provides that violation of the attorney–client privilege is punishable by pecuniary penalty or imprisonment, which cannot exceed a period of one year. Violation of the attorney–client privilege cannot be prosecuted ex officio, since Article 371, paragraph 3, of the Criminal Code explicitly provides that the prosecution may be initiated only if the person who entrusted the lawyer with the secret, or any other person who has a legal interest, lodges a complaint (”gklhsh/egklisi) within a three-month term after obtaining knowledge of the violation.

37 Supreme Administrative Court (Plenary Session), 189/2007, NoV 2007, 464. 38 Supreme Administrative Court, 1921/2009, NOMOS; Supreme Administrative Court, 2579/2009, NOMOS; Supreme Administrative Court, 2588/2009, NOMOS.

212

Greece

c

Civil proceedings and damages

29. Lastly, lawyers who violate the attorney–client privilege may also be held liable for legal malpractice. Article 73 of the Introductory Act for the Code of Civil Procedure constitutes the foundation of the lawyer’s personal civil liability.39 According to this provision, the client can bring a legal malpractice claim (agwgž kakodik©av/agogi kakodikias), which is actually a claim for damages,40 if the lawyer intentionally or due to gross negligence violates his or her duties and causes damage to the client. The above-mentioned actions are not, however, very common in Greek judicial practice. It is quite impressive that the published case law of a whole century shows that, until 2005, only thirteen malpractice claims were filed and in only three of them did the court award compensation for damages,41 proving that even courts have not been that strict when judging legal malpractice claims. 30. Article 73 of the Introductory Act for the Code of Civil Procedure is the only legal basis for the lawyer’s civil liability. The client can bring neither claims arising from the mandate contractual relationship between him or her and his or her lawyer nor claims arising from the provisions regarding torts (adikoprax©ev/adikopraksies).42 A question raised was whether legal malpractice triggers the applicability of Article 8 of the Consumer Protection Law (Law 2251/1994, as amended by Law 3587/2007). According to Article 8(1) of Law 2251/1994, a party rendering services is liable for any damage or moral harm caused by his or her action or omission while rendering services to a consumer independently within the framework of his or her professional activity. The Court of Cassation (Plenary Session) resolved the issue by giving a negative answer.43 After taking into consideration the purposes which the Consumer Protection Law serves and the special nature of the lawyer’s profession, the Court concluded that Article 8 of the Consumer Protection Law cannot be deemed applicable in cases of legal malpractice. 31. A legal malpractice claim must be filed before the three-member district court within six months from the time when the lawyer’s act or omission occurred (Art. 73, para. 5, of the Introductory Act for the Code of Civil Procedure). The Court of Cassation (Plenary Session) held, however, that the six-month deadline, which has as its starting point the lawyer’s act or omission, disproportionately burdens the client’s rights and should therefore be 39 Court of Cassation (in council), 18/1995, NoV 1995, 869. 40 Tentes in Kerameus, Kondylis and Nikas, Code of Civil Procedure Article-by-Article Commentary (in Greek), 2000, 2102. 41 A. Georgiadis, ‘The Lawyer’s Professional Liability’ (in Greek), 32 NomChr 2005, 1. 42 Court of Cassation, 1057/2009, NOMOS; Tentes in Kerameus, Kondylis and Nikas, 2102. 43 Court of Cassation (Plenary Session), 18/1999, EllDni 1999, 1290.

213

Professional secrecy of lawyers in Europe

considered contrary to Article 20, paragraph 1, of the Greek Constitution and Article 6, paragraph 1, of the ECHR.44 Therefore, and according to more recent jurisprudence,45 the six-month deadline is interpreted to begin when the client was informed of the damage caused by the lawyer’s act or omission.

B

Relationship between criminal sanctions and disciplinary sanctions 32. The law outlines in an explicit manner the relationship between criminal and disciplinary proceedings, by specifically providing in Article 69 of the Code of Lawyers that these proceedings are independent and have no effect on each other. The disciplinary board has a right, though, to suspend the proceedings until the termination of the relevant criminal trial. The judgment of the criminal court does not constitute a res judicata for the disciplinary board; however, the latter may take into consideration the court’s judgment. The prosecutor is obliged to provide the necessary information upon the rapporteur’s request.

5

Duty to provide information to the authorities 33. In Greece, in 2005, lawyers were included for the first time (Art. 4 of Law 3424/2005, which amended Law 2331/1995) among the persons who are obliged to inform the authorities about any transaction that they suspect is related to money laundering. The above-mentioned provision was repeated by Law 3691/2008, which also added that lawyers are obliged to inform the authorities of any transaction that they suspect is related to the financing of terrorism. The new legislation applies to lawyers who (a) participate, by acting in the name and on behalf of their client, in financial and real-estate transactions, or (b) assist their client to plan or realise transactions relating to: (i) the acquisition or sale of real estate or enterprises; (ii) the management of funds, securities or other assets of their client; (iii) the opening or management of bank accounts or securities accounts; (iv) the organisation of necessary contributions for the incorporation, operation or management of companies; and (v) the incorporation, operation or management of companies, trusts or similar legal entities (Art. 5, para. 1, of Law 3691/2008). All lawyers falling into the scope of these provisions must directly inform, and provide all necessary documents and information to, the Anti-Money Laundering, Counter-Terrorist Financing and Source of Funds Investigation Authority (Art. 2 of Law 3932/2011), whenever they know or have serious indications that a crime related to money laundering or financing of terrorism has been or is about to be committed. It is specifically provided (Art. 7(B), para. 4, of 44 Court of Cassation (Plenary Session), 20/2000, ChrID 2001, 163. 45 Court of Cassation, 829/2008, NOMOS; Court of Cassation, 1744/2008, EPolD 2009, 381.

214

Greece

Law 3691/2008, as amended by Law 3932/2011) that the units of the abovementioned Authority are not, during their research and investigations, bound by any sort of banking, tax, stock market or professional duty of secrecy, with the exception of Articles 212, 261 and 262 of the Code of Criminal Procedure (see below, nos 42 and 37 respectively). 34. Article 26, paragraph 2, of Law 3691/2008 provides, however, that lawyers do not have a duty to provide information to the authorities, when such information was either provided by or related to the client and was acquired while ascertaining the client’s legal position or while defending or representing the client in court or in trial-related matters, including any advice for the pursuance or avoidance of trial; it is irrelevant whether the information was acquired before, during or after trial. In light of the above, jurists argue that legal professional privilege still covers any information related to the exercise of the lawyer’s legal duties and therefore that lawyers do not have an obligation to provide such information to the authorities.46 In contrast, lawyers have indeed an obligation to inform the authorities of matters falling outside the scope of the exercise of their legal duties,47 or matters which were from the beginning not covered by attorney– client privilege, such as information entrusted to the lawyer not due to his profession, but because of his capacity as a friend or relative.

6

Treatment of lawyers’ documents and correspondence in the context of judicial investigations 35. Any correspondence between lawyer and client is protected by the general protection conferred by Article 19, paragraph 1, of the Greek Constitution48 and Article 370 of the Criminal Code. Law 2225/1994, which implements Article 19, paragraph 1, of the Greek Constitution, provides for derogations, allowing inspection of such correspondence by the competent authorities only after permission has been granted by an independent judicial authority and only in cases where national security or serious crimes, which are provided on a limitative list, are involved. In addition, Article 53, paragraph 4, of the Greek 46 E. Symeonidou-Kastanidou, ‘Lawyers: Obligation to Communicate Information to the Authorities for the Prevention of Money Laundering and the Financing of Terrorism and Criminal Liability’ (in Greek), PoinChr 2008, 933. 47 For matters which fall within the scope of the exercise of the lawyer’s legal duties, see also the Opinion of Advocate General Poiares Maduro in Case C-305/05, Ordre des barreaux francophones et germanophones and Others v. Conseil des ministres [2007] ECR I-5305. 48 ‘Secrecy of letters and all other forms of free correspondence or communication shall be absolutely inviolable. The guaranties under which the judicial authority shall not be bound by this secrecy for reasons of national security or for the purpose of investigating especially serious crimes shall be specified by law.’

215

Professional secrecy of lawyers in Europe

Penitentiary Code (Law 2776/1999) provides that any correspondence between an inmate and his or her lawyer cannot be inspected unless this is necessary for reasons of national security or for ascertaining very serious crimes.

7

Search of a lawyer’s office 36. Although the lawyer’s office cannot be considered an asylum (†sulo/asilo),49 there are restrictions imposed regarding investigation of a lawyer’s office. Specifically, Article 49, paragraph 3, of the Code of Lawyers provides that any investigation during criminal procedure (Articles 253–9 of the Code of Criminal Procedure) in a lawyer’s office or domicile, with regard to the client represented by the lawyer in a criminal case, is absolutely prohibited. 37. The inviolability of the lawyer’s office is further on guaranteed by Articles 261 and 262 of the Code of Criminal Procedure. More specifically, if the lawyer declares in writing that a specific document, obtained by reason of his or her duties or profession, contains a professional secret protected by attorney– client privilege, he or she is released from his or her general obligation to relinquish such documents to judicial authorities in criminal cases. However, if the authorities believe this declaration to be untrue, they are entitled to seal the document or otherwise secure it, without obtaining knowledge of its content, and then request the executive council of the competent Bar to decide whether the document indeed includes some confidential information. If the decision is negative, the document is confiscated and the lawyer may be criminally prosecuted for his or her false declaration.

8

Tapping of telephone conversations with a lawyer 38. Freedom of correspondence and communications is primarily protected under Article 19, paragraph 1, of the Greek Constitution. Until 1982, however, only written correspondence was protected by relevant criminal legislation. Since the use of technological means for tapping telecommunications was increasing, Article 370A was added in the Criminal Code,50 in order to protect the privacy of telephone conversations and oral communication. The general protection of the above-mentioned legislation also covers communications between lawyers and their clients, since there is no special legislation regarding them. Article 370A, para. 1, penalises violation of the secrecy of telephone conversations, which can either occur by tapping the line or by any other interference with the telephone appliance, line or software. The tapping or interference 49 Makridou, The Attorney–Client Privilege, 143. 50 Art. 1 of Law 1291/1982, lastly modified by Art. 10 of Law 3674/2008.

216

Greece

is deemed illegal when it takes place without the other party’s consent,51 or without a relevant right provided by law. 39. Again, Law 2225/1994 (implementing Article 19, paragraph 1, of the Greek Constitution) provides in detail in which cases the tapping of a telephone line is allowed and the relevant procedure that must be followed.52 Specifically, the tapping of a telephone line is allowed only after permission of a competent judicial authority and only in cases where national security or extremely serious crimes, which are provided on a limitative list, are involved. 40. In the event the above provisions are violated, the evidence produced by such illegal means – criminal acts such as tapping the lawyer’s telephone line without following proper procedure – cannot be introduced in any criminal or civil procedure (as specifically provided in Article 19, paragraph 3, of the Greek Constitution and Article 177, paragraph 2, of the Code of Criminal Procedure, as amended by Law 3674/2008).

9

The lawyer as witness 41. As stated above, the attorney–client privilege is intended to protect not only the client’s ‘privacy’, but also the judicial system and the public interest. Both in civil and in criminal jurisdiction, it is the client’s prerogative to decide whether the examination of his or her lawyer as a witness, regarding information covered by the attorney–client privilege, will influence the proceedings. However, the importance of the client’s decision varies in criminal and civil jurisdiction. 42. In criminal jurisdiction, the client’s release of the lawyer is not important and attorney–client privilege is still binding upon the lawyer, whose deposition is still considered forbidden by law (Art. 212, para. 2, of the Code of Criminal Procedure). However, such deposition is not ipso jure null and void, nor does it necessitate the nullity of the whole proceedings; it is possible that it will entail only disciplinary sanctions.53 That is because the nullity of the main criminal proceedings is considered to be relative and only the client has a legal interest in invoking it.54 Moreover, in order for the deposition to be considered null, the lawyer who is called upon to be examined as a witness must state under oath that his examination violates the attorney–client privilege,55 undertaking the risk of being prosecuted for perjury if such declaration is proven to be untrue (Art. 212, para. 4, of the Code of Criminal Procedure). In any case, lawyers 51 52 53 54 55

Court of Cassation (Plenary Session), 1/2001, EllDni 2001, 374. The relevant procedures were further specified by Presidential Decree 47/2005. Court of Cassation, 818/2000, PoinDni 2000, 1206. Court of Cassation, 2433/2003, PoinChr 2004, 905. Court of Cassation, 980/1987, PoinChr 1987, 797.

217

Professional secrecy of lawyers in Europe

may testify in favour of their clients if they first resign from defending them, since they cannot be witnesses and defence lawyers at the same time.56 43. In civil jurisdiction, the lawyer has the right to refuse to testify with regard to facts that came to his or her knowledge due to his or her profession (Art. 401 of the Code of Civil Procedure). This right has absolutely no relevance to the client’s will (which is therefore unimportant), since it is provided in order to protect the lawyer’s personality.57 However, if the lawyer wishes to testify, it is the client who must object to the lawyer’s examination as a witness before the lawyer takes the oath (Art. 403, para. 2, of the Code of Civil Procedure).58 According to Greek case law,59 the opposing party of the lawyer’s client cannot object to the latter’s lawyer’s examination as a witness, since Article 400 of the Code of Civil Procedure intends to protect only the interests of the lawyer’s client, whose privilege is about to be violated. It seems, however, that the client’s objection to his or her lawyer’s testimony has mostly a theoretical value. This is because exceptionable witnesses (e.g. lawyers) are considered as means of evidence which do not comply with the requirements of law (mh plhroÅnta touv »rouv tou n»mou apodeiktik† m”sa/mi plirounta tous orous tou nomou apodeiktika mesa). Article 270, paragraph 2, of the Code of Civil Procedure provides, however, that, in ordinary proceedings, the court may consider, and freely evaluate, means of evidence which do not comply with the requirements of law.60 Eminent publicists argue,61 though, that when the reasons for testimony exceptions relate to confidentiality and the duty of professional secrecy, the means of evidence which do not comply with the requirements of law must not at all be taken into consideration by the court. However, such argument has not yet been accepted in practice.

10

The lawyer and the press 44. Due to the fact that a number of lawyers in Greece tend to speak to the press about their cases, the Executive Council of the Athens Bar Association62 56 57 58 59 60 61

Court of Cassation, 1333/2006, PoinDni 2007, 235. Tentes in Kerameus, Kondylis and Nikas, 760. Court of Cassation, 95/2008, EPolD 2008, 519. Court of Cassation, 847/2009, NOMOS; Court of Cassation, 1285/1992, EllDni 1994, 1336. As amended by Art. 28 of Law 3994/2011. P. Yessiou-Faltsi, ‘Compulsion of Evidence as a Result of the Right to Proof’ (in Greek), D 1987, 127; N. Paisidou, ‘Thoughts Regarding Exceptionable Witnesses and Affidavits, Which Do Not Comply with the Requirements of the Law in Ordinary and Special Proceedings’ (in Greek), EPolD 2008, 461. 62 Decision dated 28 March 1996.

218

Greece

and consequently the plenary meeting of the presidents of bar associations63 (Olom”leia Pro”drwn DikhgorikÛn Sull»gwn/Olomeleia Proedron Dikigorikon Syllogon) have issued decisions according to which Greek lawyers should refrain from conducting their cases in the press (the so-called ‘teletrials’) rather than in the courtroom. This is because such behaviour is usually considered to degrade the dignity of the legal profession and may also constitute an indirect form of advertisement, which was prohibited by Article 9 of the Code of Ethics. The advertising of legal services was, however, recently regulated by law, with the addition of Article 38A to the Code of Lawyers.64 The contentions mentioned above were also taken into consideration, since Article 38A, paragraph 4, of the Code of Lawyers strictly prohibits lawyers, whether they act individually or as members of a law firm, from giving interviews to the press in relation to a pending case. Moreover, Article 38A, paragraph 1, mentions that the publicity and promotion of lawyers’ professional activity should be consistent with the prestige and dignity of the legal profession. The attorney–client privilege must also be respected, since the promotion and publicity may not include clients’ names without their consent, with the exception of the lawyers’ catalogue and other publications concerning lawyers. 45. Relations between Greek lawyers and the press have also given rise to a ruling by the European Court of Human Rights,65 regarding freedom of expression of a Greek lawyer who was convicted by the Greek courts for the defamation of a public prosecutor during a television interview. According to the court, the special status of lawyers gives them a central position in the administration of justice as intermediaries between the public and the courts. Such a position explains the usual restrictions on the conduct of members of the Bar. However, lawyers too are entitled to freedom of expression and to comment in public on the administration of justice, provided that their criticism does not overstep certain boundaries. Account must be taken, though, of the need to strike the right balance between the various interests involved, which include the public’s right to receive information about questions arising from judicial decisions, the requirements of the proper administration of justice and the dignity of the legal profession.66 Therefore, however important this judgment may be for the right of a lawyer to talk to the press about cases, it is obvious that, in any event, the lawyer cannot disclose privileged information to the press.

63 64 65 66

Decision dated 27 April 1996. Art. 38A of the Code of Lawyers was inserted by Art. 6, para. 1, of Law 4038/2012. Judgment of 11 February 2010, Case of Alfantakis v. Greece, Application no 49330/07. Para. 27 of the Judgment.

219

Professional secrecy of lawyers in Europe

11

Powers of the tax administration and other authorities 46. Greek law has provided the supervisory bodies of the various tax authorities with a number of powers relating to the conduct of their relevant inspections. In Greece, the main tax-related authorities are the Public Fiscal Services (Dhm»siev Oikonomik”v Uphres©ev (D.O.U.)/Dimosies Oikonomikes Ypiresies (DOY)) and the Body for the Prosecution of Economic Crime (SÛma D©wxhv OikonomikoÅ Egklžmatov (S.D.O.E.)/Soma Dioksis Oikonomikou Egklimatos (SDOE)).67 The Head of the DOY may have access to any piece of information deemed necessary in order to conduct the relevant inspections. Any kind of confidentiality privilege (general or special) may be lifted by the Public Prosecutor for Economic Crime (Eisaggel”av OikonomikoÅ Egklžmatov/Eisaggeleas Oikonomikou Egklimatos), after a request by the person who is conducting the inspection and after the concurrence of the Head of the Directorate General for Tax Inspections (Art. 66, para. 1(b), of Law 2238/1994). In such cases, if the person (e.g. the lawyer) who is obliged to provide the relevant information does not comply, he or she is subject to an administrative penalty, which ranges from €1,000 to €50,000 (Art. 26, para. 3, of Law 3943/2011). The inspectors of the SDOE have even greater privileges while conducting their inspections. Specifically, Article 30, paragraph 6, of Law 3296/2004 provides that they are not bound at all by any provision regarding confidentiality privileges. The inspectors themselves, though, like all civil servants, are bound by secrecy regarding information that has come to their knowledge during their inspections (Art. 26 of Law 3528/2007).

12

State security service 47. In Greece, the National Intelligence Service (Eqnikž Uphres©a PlhroforiÛn (E.U.P.)/Ethniki Ypiresia Pliroforion (EYP)) must respect the attorney– client privilege. This contention derives a contrario from Article 6 of Law 3649/2008, which does not mention lawyers among the persons who have a duty to provide information to the EYP. In relation to the privacy of communications, the service is also bound by the provisions of law when conducting inspections. The legality of the EYP’s actions is supervised by a public prosecutor, who is assigned to the service by the Supreme Judicial Council. The tapping of a lawyer’s telephone line is permitted only when it is conducted in accordance with the general legislation regarding the privacy of communications and only after the issuance of a relevant statement by the assigned public prosecutor, which is subject to approval by the Public Prosecutor at the Court of Appeal (Art. 5 of Law 3649/2008).

67 As renamed by Art. 88, para. 1, of Law 3842/2010.

220

Greece

13

Future, and conclusion 48. In conclusion, it seems that the Greek legislator has always acknowledged the importance of protecting the ‘personal trust’ that characterises the relationship between lawyer and client, and therefore created a quite extensive web of legal rules in order to secure it. In addition, the legislator still keeps in mind the above higher value when it comes to issuing more recent legislation (e.g. Law 3898/201068 or Law 4038/201269 ). Despite the above, it seems that the attorney–client privilege does not have sufficient impact in Greek judicial practice. The reported case law shows that condemnatory decisions with regard to the violation of attorney–client privilege, either from disciplinary boards or from civil or criminal courts, are extremely rare. Beyond a shadow of a doubt, though, the legislation that secures the lawyer’s duty of professional secrecy can be considered sufficient; it simply remains to be applied, tested and specified in practice. 68 See no 11 above.

69 See no 44 above.

221

14 Hungary ´ ´ ati ´ j anos b an President of the Hungarian Bar Association

Preliminary note 223 1 Scope of and limitations on professional secrecy 223 A Statutory basis and implications 223 B Scope 223 C Persons subject to the duty of professional secrecy 224 D Limitations and derogations 224 a Release by the client 224 b Other exceptions 226 E Law firms 227 F Legal assistants and staff 227 G External service providers 227 H Multidisciplinary associations 227 2 History 228 3 Supervision 228 A The bar associations 228 B The courts 229 a Criminal law consequences 229 b Civil law consequences 229 4 Sanctions 230 A Proceedings and sanctions 230 a Disciplinary proceedings and sanctions 230 b Criminal law proceedings and sanctions 230 c Civil law proceedings and sanctions 231 B Relationship between criminal sanctions and disciplinary sanctions 231 5 Duty to provide information to the authorities 232 A Money laundering and terrorism 232 B Other cases 232 6 Treatment of lawyers’ documents and correspondence in the context of judicial investigations 233 7 Search of a lawyer’s office 233 8 Tapping of telephone conversations with a lawyer 234 9 The lawyer as witness 235 A Hearing the attorney as a witness in a criminal procedure 236 B Testimony in civil proceedings 236

222

Hungary

10 The lawyer and the press 237 11 Powers of the tax administration and other authorities 12 State security service 238

237

Preliminary note 1. The concept of legal professional privilege is recognised by Hungarian law. This means that communication between the attorney and the client is protected under Hungarian law by making it privileged from disclosure in certain legal procedures. This privilege stems from the confidential nature of the communication between the attorney and the client. This professional confidentiality is called u¨ gyv´edi titoktart´as in Hungarian (the closest English translation would be ‘secrecy of attorneys’) and it refers to the right and obligation of the attorney to keep confidential all data and information acquired in the course of his/her activity. It is regulated by Act XI of 1998 on Lawyers (the Lawyers Act). More ¨ of the Hungarian details are contained in Regulation no 8/1999 (22. III.) MUK Bar Association on the ethical rules and requirements of the attorney’s profession (the Code of Conduct). Since in-house counsel (Hungarian jogtan´acsos) are not subject to the secrecy of attorneys under the Lawyers Act, this chapter will deal with attorneys, law firms and all those who are bound by the duty of professional secrecy under the Lawyers Act only. In accordance with the Hungarian Constitutional Court’s practice, the attorney’s duty of professional secrecy is based on his/her confidential relationship with the client and is an important guarantee of the right to a defence and to a fair trial. Therefore the duty of professional secrecy enjoys constitutional protection.1

1

Scope of and limitations on professional secrecy

A

Statutory basis and implications 2. In accordance with Section 8(1) of the Lawyers Act, Unless otherwise prescribed by law, an attorney is bound by confidentiality with regard to every fact and all information about which he/she gains knowledge in the course of carrying out his/her professional duties. This obligation is independent of the existence of the mandate relationship and continues to apply after he/she has ceased to function as an attorney in the given matter.

B

Scope 3. Professional secrecy is the right and the obligation of the attorney to keep confidential all data and information acquired in the course of his/her legal 1 Decision of the Constitutional Court no 169/2010 (IX. 23.) AB.

223

Professional secrecy of lawyers in Europe

activity. Under Hungarian law, professional secrecy is the client’s right and the attorney’s right and obligation. Confidentiality extends to all of the documents prepared by the attorney and all other documents in his/her possession that contain any fact or information subject to confidentiality. An attorney may not disclose any document or fact pertaining to his/her client in the course of an official inquiry conducted at the attorney’s office, but he/she may not obstruct the proceedings of the authority (S. 8(2) Lawyers Act). Confidentiality furthermore extends to all information and documents acquired in the course of the attorney’s activity, even if they do not originate from the client. The person bound by confidentiality has to maintain it with respect to everybody (S. 4/3 Code of Conduct). This means that the attorney shall keep the secret not only with respect to courts or authorities but in all other situations as well (including e.g. during private conversations). 4. The duty of confidentiality starts when the client gives a mandate to the attorney. However, according to practice, even if the client does not give a mandate to the attorney, the information and documents provided in the course of the preliminary discussions are protected by the confidentiality obligation (S. 4/6/b Code of Conduct). The death of the client (or termination of the legal person client) does not terminate the confidentiality obligation. In cases of succession, the successor(s) will become the beneficiary of the secrecy and will be entitled to release the attorney from this obligation. Similarly, the duty of confidentiality continues to apply after the attorney has ceased his/her activity as an attorney (S. 8(3) Lawyers Act; S. 4/6/d Code of Conduct).

C

Persons subject to the duty of professional secrecy 5. By virtue of the law, the duty of confidentiality extends not only to the attorney, but also to law firms and their employees. The attorney bears the disciplinary responsibility to require that his/her employees and assistants, who are not covered by the scope of the Lawyers Act or the Rules of Conduct, observe the same obligation of professional secrecy (S. 8(3) Lawyers Act; S. 4/6/d Code of Conduct). Confidentiality applies to attorneys’ organisations (i.e. bar associations), their organs and employees (S. 8(3) Lawyers Act; S. 4/6/d Code of Conduct).

D

Limitations and derogations

a

Release by the client

6. The most important exception to the duty of professional secrecy is when the client releases the attorney from this duty. This exception is explicitly provided for by the Lawyers Act. However, if the attorney acted as a defence counsel in a criminal procedure, he/she may not be questioned as a witness about any 224

Hungary

fact or any information about which he/she gained knowledge in this capacity, even if the client has released him/her (S. 8(3) Lawyers Act). In this sense, the defence counsel’s duty of confidentiality is an absolute one. 7. In most cases, it does not cause any problem to identify who is entitled to release the attorney from his/her duty of confidentiality as the attorney (law firm) is acting on behalf of his/her (its) contractual partner, the client. In other cases, however, the ‘client’ may be different from the person with whom the attorney has a contractual relationship. For example, in criminal cases where the accused person is under arrest, the defence counsel often receives his/her mandate from the accused person’s relative. Nevertheless, it is the accused person who is entitled to release the attorney from his/her duty of confidentiality (S. 4/6/c Code of Conduct). The relative giving the mandate to the attorney may only release the attorney with respect to facts and information that he/she provided to the attorney him-/herself. 8. If more than one client gives a joint mandate to the attorney, they may release the attorney only jointly, i.e. the permission of all the clients is needed. Similarly, if an attorney represents more than one client in a matter, he/she needs permission from all the clients in order to be released from the duty of confidentiality. 9. In many cases where the attorney prepares contracts, only one of the contracting parties has an attorney. This is why it is sometimes inevitable that the attorney will give legal advice to both parties during the negotiations and the drafting of the contract, not only to his/her client. This leads to a situation where the attorney has the duty of confidentiality for the benefit of both parties, i.e. his/her own client and the other contracting party, and needs the permission of both parties to be relieved of his/her duty. On the other hand, if all the contracting parties have their own attorneys, then the attorney will only be bound by the duty of confidentiality for the benefit of his/her own client and will not owe any duty of confidentiality to the other contracting parties. 10. If the client is a legal person, its current only authorised representative (e.g. the managing director) is entitled to release the attorney from his/her duty of confidentiality. This may create delicate situations where the client is taking action against its former representative and requires the attorney to reveal confidential information which the attorney learnt from the former representative and which may be detrimental to the former representative’s interests. Nevertheless, the beneficiary of the duty of confidentiality is the legal person and not its representative. Therefore the current representative is entitled to release the attorney from his/her duty of confidentiality. 11. The right to confidentiality passes to the client’s successor. This means that the natural person’s heir or the legal person’s legal successor is entitled to 225

Professional secrecy of lawyers in Europe

release the attorney with respect to the confidential information which stemmed from the predecessor client (S. 4/6/d Code of Conduct). If there are multiple persons entitled, the release has to be given by all of them. However, in case of more than one heir, any of them is entitled to acquaint themselves with the professional secret in the subject matter of the will, or of the contract of inheritance prepared by the attorney, or of the testamentary gift (S. 4/8 Code of Conduct). The Lawyers Act does not require the client’s release to be in writing. However, if the attorney reveals confidential information, it will be for him/her to prove that the client released him/her from his/her duty of confidentiality. Irrespective of its form, the release shall be explicit and the principle of silent approval (qui tacet consentire videtur) is clearly inapplicable. b

Other exceptions

12. In a disciplinary or preliminary examination case initiated by a bar association, the attorney is not subject to his/her general obligation of confidentiality, either towards the Bar organs or in the court proceedings in the specific case in which he or she is involved (S. 4/9/a Code of Conduct). If the person entitled to dispose of the professional secret (the client) initiates proceedings against the attorney before an authority or a court, this has to be regarded as releasing the attorney to the extent necessary for the attorney’s defence. The obligation of confidentiality of the defence attorney is an exception from this rule, as such confidentiality is absolute and the attorney may not use such information even for the purposes of defending him-/herself (S. 4/9/b Code of Conduct). On the other hand, it is important to note that the attorney is not exempted from his/her duty of confidentiality if he/she initiates court proceedings against his/her client, e.g. for the payment of his/her legal fees. However, the court may order the client (defendant) to reveal the confidential information and disclose it in the course of the proceedings. If the client refuses to do so, the court may, at its own discretion, draw an adverse inference from this against the client (S. 206(2) of Act III of 1952 on Civil Proceedings). 13. When the attorney performs the legal representation or the defence of multiple clients in the same case, there is no obligation of confidentiality for him/her towards the persons represented to the extent that their allegations are the same regarding the merits of the case. If the represented persons do not give the mandate to the attorney collectively, they have to be informed about this rule (S. 4/9/c Code of Conduct). 14. In the event the client misled the attorney in respect of his/her identity when giving the mandate, he/she is not entitled to dispose of the professional secret (S. 4/9/d Code of Conduct). In this case there will be no valid contract concluded and the person misleading the attorney will not become the attorney’s client. 226

Hungary

E

Law firms 15. If the client gives a mandate to a law firm, all members of the firm are bound by professional secrecy, not only the member who is acting for the client. In this case the law firm is the client’s contractual partner and not only the members of the law firm, but also its employees, are under the duty of confidentiality.

F

Legal assistants and staff 16. As mentioned, above by virtue of the law, the duty of confidentiality extends not only to the attorney, but also to law firms and their employees (S. 8(4) Lawyers Act). Employees of the law firm include (i) assistant attorneys (alkalmazott u¨ gyv´ed), who are qualified lawyers who have already passed the Bar exam and are working on the basis of a labour contract; (ii) trainee lawyers (¨ugyv´edjel¨olt), who are lawyers with a university degree in law who are preparing for their bar exam; and (iii) other employees (paralegals, secretaries etc.). The above persons are not only obliged to keep professional secrecy but are also entitled to refer to the secrecy obligation before courts and authorities (e.g. if they appear as a witness). 17. If the attorney/law firm engages persons who are not employees, but who assist the law firm in a different legal relationship (typically under a mandate agreement), it is the attorney’s/law firm’s obligation to require these persons to undertake a confidentiality obligation (S. 4(2) Lawyers Act).

G

External service providers 18. External service providers are not employees of the attorney/law firm, therefore the confidentiality obligation in the Lawyers Act does not apply to them. Under these circumstances, it is the attorney’s/law firm’s obligation to require these external service providers to undertake a confidentiality obligation (S. 4(2) Lawyers Act).

H

Multidisciplinary associations 19. The bar associations have the right to carry out disciplinary proceedings against attorneys. In order to conduct these proceedings effectively it is necessary for them to learn confidential information. It follows that the attorney does not have the duty of confidentiality in the course of the disciplinary proceedings of the bar associations or during the related court proceedings (S. 4/9/a Code of Conduct). In order to ensure that the information provided to the bar association remains confidential, the Lawyers Act prescribes that the bar associations and their organs and employees shall have the duty of confidentiality (S. 8(4) Lawyers Act). 227

Professional secrecy of lawyers in Europe

2

History 20. All laws and regulations that regulated the activity of lawyers in Hungary prior to the entry into force of the Lawyers Act expressly provided for the duty of professional secrecy. 21. Act XXXIV of 1874 on legal professions provided that a lawyer has to keep confidential all information he/she has received in the course of representing his/her client or otherwise during his/her activity as a lawyer, the revealing of which might be detrimental to the client. A lawyer cannot be obliged to make any confessions in respect of such information; moreover – without the consent of the client – he/she cannot be called as a witness.2 Act IV of 1937 on the legal profession set out that a lawyer has to keep confidential all information which he/she received in order to represent a client, or which became known to him/her otherwise during his/her activity as a lawyer, in relation to the respective case, except if the client or the law exempts him/her from such a duty of professional secrecy.3 Pursuant to Section 8 of Law Decree no 12 of 1958 on practising in the legal profession and on the organisation of lawyers, lawyers and trainee lawyers shall be bound by the duty of professional secrecy with respect to information which they have received within the framework of their mandate, or which has become otherwise known to them during their activity as a lawyer, in relation to the respective case. The client may release the lawyer/trainee lawyer from such duty. Section 1(5) of Law Decree no 4 of 1983 on lawyers provides that the lawyer is bound by the duty of professional secrecy with respect to all information that became known to him/her during the fulfilment of his/her duties. Such duty of professional secrecy shall cover documents prepared during his/her activity as a lawyer, and documents stored by organisational bodies of lawyers, which contain information protected by the duty of professional secrecy. Trainee lawyers and other employees of the lawyer shall be bound by this duty as well. The client may release the lawyer from such duty. 22. All the laws and regulations discussed above provide for disciplinary procedures in case of breach of the professional secrecy rules.

3

Supervision

A

The bar associations 23. The duty of professional secrecy by which an attorney is bound arises from the Lawyers Act and the Code of Conduct, the violation of 2 S. 49 of Act XXXIV of 1874 on legal professions. 3 S. 77 of Act IV of 1937 on legal professions.

228

Hungary

either of which (either wilfully or negligently) qualifies as a disciplinary infraction. Pursuant to Section 37 of the Lawyers Act, ‘an attorney commits a disciplinary infraction if he/she culpably violates his/her obligations that arise from practising law or that are stipulated in legal regulation or in the Code of Conduct’. 24. The infractions are dealt with by the disciplinary committees of the bar associations. There have been a small number of cases before the Budapest Bar Association where the attorney pleading before the court revealed confidential information without the consent of the client. In all cases, the respective attorneys were either intimidated by the court or were simply unaware that they were supposed to keep the information or data secret even from the court.

B

The courts 25. Apart from the above-mentioned disciplinary proceedings, breach of professional secrecy rules may have both criminal and civil law consequences.

a

Criminal law consequences

26. Pursuant to Section 177 of Act IV of 1978 on the Criminal Code, ‘any person who reveals any private secret he/she has obtained in a professional or official capacity without due cause is guilty of a misdemeanour’. While there have been a number of disciplinary cases before the bar associations with respect to the breach of professional secrecy rules, we have no data available on any criminal law proceedings in this respect. Neither have we any information on the practice of the courts regarding the interpretation of ‘due cause’.

b

Civil law consequences

27. The civil law protection of persons is regulated by Chapter VII of Act IV of 1959 on the Civil Code. Section 81(1) of the Civil Code sets out that ‘Any person who has . . . come into the possession of a private or business secret and publishes such secret without authorization or abuses it in any other manner shall be construed as having violated an inherent right.’ Therefore the breach of the duty of professional secrecy is regarded by the civil law as a violation of the client’s inherent right. 229

Professional secrecy of lawyers in Europe

4

Sanctions

A

Proceedings and sanctions

a

Disciplinary proceedings and sanctions

28. A disciplinary infraction – such as the disclosure of confidential data or information without the consent of the client – can be penalised by censure, a fine or expulsion from the bar association (S. 37 Lawyers Act). The fine may amount to up to twice the amount of the largest fine for the misdemeanour. 29. Apart from the above sanctions, an attorney may not be elected to any position (function) at a bar association for two years if a fine is imposed, five years in the event of suspended expulsion from the bar association, or ten years in the event of expulsion from the bar association – all calculated from the time at which the disciplinary decision becomes final – and all and any existing positions (functions) held by the attorney at the bar association shall be terminated (S. 37 Lawyers Act). 30. Disciplinary proceedings against attorneys are conducted by a disciplinary tribunal formed from the competent bar association’s disciplinary committee (at first instance) and from the disciplinary committee of the Hungarian Bar Association (at second instance). As a main rule, the disciplinary tribunals (both of the first instance and of the second instance) shall consist of three members (S. 42 Lawyers Act). b

Criminal law proceedings and sanctions

31. The misdemeanour of revealing a private secret is punishable with a fine or – if the crime results in a considerable injury of interest – by up to one year’s imprisonment (S. 177 Criminal Code). The misdemeanour of revealing a private secret may only be prosecuted upon private motion (S. 183 Criminal Code). In practice, this means that breach of the duty of professional secrecy by an attorney may only be sanctioned within the framework of criminal law proceedings if the offended party4 submits a private motion within the deadline set out in applicable law and it can be proven that the attorney had no due cause to reveal such a private secret. 4 Pursuant to S. 31 of the Criminal Code, the offended party shall be entitled to lodge the private motion. If the legal capacity of the offended party is diminished, the private motion may also be submitted by his/her legal representative, and if the offended party lacks legal capacity entirely, it may be submitted exclusively by his/her legal representative. A private motion may not be withdrawn.

230

Hungary

c

Civil law proceedings and sanctions

32. Section 84 of the Civil Code discusses the civil law legal consequences of the violation of an inherent right. Pursuant to such provisions, a person whose inherent rights have been violated shall have the following options – amongst others – under civil law, depending on the circumstances of the case: (i) to demand a court declaration of the occurrence of the infringement; (ii) to demand to have the infringement discontinued and the offender restrained from further infringement; (iii) to demand that the offender make restitution in a statement or by some other suitable means and, if necessary, that the offender, at his own expense, make an appropriate public disclosure for restitution; and (iv) to demand compensation for non-pecuniary damages in accordance with rules of civil law liability. 33. If the amount of non-pecuniary damages that can be imposed is insufficient to mitigate the gravity of the actionable conduct, the court shall also be entitled to penalise the offender by ordering him/her to pay a fine to be used for public purposes. Filing for damages is the most commonly claimed sanction under Hungarian civil law.

B

Relationship between criminal sanctions and disciplinary sanctions 34. As a general remark, it has to be noted that although a disciplinary procedure is closer to a criminal procedure (with the sanctioning of an illegal action being its aim), it cannot be qualified as either a criminal law or civil law procedure. Given that such a special procedure is somewhat deficient, certain criminal and civil law procedural rules are used by way of analogy. While there is no direct link between a civil/criminal law proceeding and a disciplinary proceeding (i.e. sanctioning in a disciplinary procedure may occur without initiating a civil/criminal law procedure), in case of establishing criminal law liability a disciplinary procedure is inevitable. 35. The Disciplinary Committee of the Budapest Bar Association had difficulties regarding civil liability court proceedings in which a client claimed damages from an attorney who infringed the obligation to keep information and data pertaining to the client confidential. It happened a few times that the competent court requested the Disciplinary Committee of the Budapest Bar Association to make the documentation of the disciplinary procedure available. The problem with these inquiries is that the documentation of the procedure contains confidential information regarding the client. The duty of confidentiality binds not only attorneys but also legal bodies such as bar associations (S. 8(4) Lawyers Act). The Code of Conduct specifies this obligation by stating that persons conducting proceedings in disciplinary cases are also charged by the obligation of confidentiality (S. 4/7 Code of Conduct). Consequently, 231

Professional secrecy of lawyers in Europe

the disciplinary committee has no right to hand over the documentation of the disciplinary procedure to the court, unless the respective client consents to it.

5

Duty to provide information to the authorities

A

Money laundering and terrorism 36. An exemption by law to the obligation of professional secrecy is provided for by Act CXXXVI of 2007 on the Prevention and Combating of Money Laundering and Terrorist Financing (the Anti-Money Laundering Act). Section 38(4) of the Anti-Money Laundering Act expressly states that the attorney does not breach his/her duty of confidentiality when fulfilling his/her obligations arising from the Anti-Money Laundering Act. The obligation to report to the competent authority any data or information that indicates money laundering or the financing of terrorist activity applies to attorneys who are holding any money or valuables in escrow or who are providing legal services in connection with the following transactions: buying or selling any participation (share) in a business association; buying or selling real-estate properties; or establishing, operating or dissolving a business association.5 37. It has to be noted, however, that the reporting obligation provided for by the Anti-Money Laundering Act does not apply to attorneys in the event that they obtain any information suggesting money laundering or terrorist financing in connection with their defence or legal representation of a client before a court other than the court of registry, during any stage of such defence or representation or at any time thereafter, or while providing legal advice relating to the opening of such proceedings.6 There are only around three cases per year in Hungary when an attorney files such a report.

B

Other cases 38. Certain other laws and regulations can also exempt the attorney from his duty of confidentiality. This rule is also provided for by Section 8(1) of the Lawyers Act. An example of such a legal exemption can be found in Section 27/B of the Lawyers Act, which allows attorneys – before countersigning a document – to consult the competent authority in order to verify the data provided by the client as proof of his/her identity and home address, or to confirm the validity of 5 S. 36(1) of the Anti-Money Laundering Act. 6 S. 36(3) of the Anti-Money Laundering Act.

232

Hungary

the identification document or residence document. The attorney may request the data by electronic means (S. 27/B Lawyers Act). Under the general legal rules, the attorney would not be allowed to send the client’s personal data to the authorities as such data would normally fall under the obligation of confidentiality and would therefore be protected. The exemption mainly aims to prevent citizens from so-called ‘real-estate mafia’ activity, in which a person with a fake identity document makes a statement on behalf of the owner of a property that results in false ownership rights being registered on the real-estate registry.

6

Treatment of lawyers’ documents and correspondence in the context of judicial investigations 39. Due to the internationalisation of terrorism and criminality, the authorities of several countries started to consider lawyers’ professional secrecy as an obstacle to their investigations and therefore, by also referring to their obligation to comply with international treaties, started to pass legislation contrary to the traditional concept of professional secrecy. Although the interests of society, national security and the efficiency of criminal investigations are acceptable subjects in need of regulation, lawyers throughout the world are struggling with these new regulations. In the sections below we will describe the main statutory provisions that may pierce lawyers’ professional secrecy in administrative and judicial proceedings due to the reasons explained above and which, in some cases, even oblige the lawyer him-/herself to actively report information.

7

Search of a lawyer’s office 40. Due to the fact that professional secrecy also covers documents in the attorney’s possession, an attorney may, without prior release from the client, not disclose any information subject to professional secrecy even during a search by an authority. The Lawyers Act also specifically provides that the attorney may not, however, obstruct the authorities’ work (S. 8(2) Lawyers Act). It is evident from the rules of Act XIX of 1998 (Criminal Procedure Code) on search and seizure that even an attorney’s office may be searched in order to reveal means of evidence or anything else that might be subject to seizure. If the search, however, aims at documents subject to professional secrecy,7 until submission of the indictment by the prosecution, the search requires a judicial search warrant and must be executed in the presence of a prosecutor. 7 S. 149(6) of the Criminal Procedure Code.

233

Professional secrecy of lawyers in Europe

However, if a delay would constitute a risk to its success (and to the statutory aims), the prosecutor may also conduct the search without a warrant. It can therefore be established that the police and/or the financial investigative authorities are never entitled to conduct a search in an attorney’s office on their own, but are required to comply with the above formal procedural requirements. If the attorney is in possession of objects or documents which could be subject to seizure, he/she may neither hide nor destroy them, as these would constitute ‘facilitation’, a crime under the Criminal Code.8 41. The attorney must also accept every lawfully ordered search conducted during a criminal procedure. During the search, the attorney must first be requested to hand over, on his/her own, the object sought.9 This request must be clear and definitive, and the attorney must be able to properly identify the object or document sought. If the request is made in accordance with these formalities and if the search itself also complies with the above formal provisions, the attorney will not commit a breach of professional secrecy by handing over the documents him-/herself. In fact, by handing over the document, he/she even prevents the authorities from conducting the search by themselves and thus from inevitably learning information on other clients, thereby violating their right to professional secrecy.

8

Tapping of telephone conversations with a lawyer 42. Evidently, and as a main rule, every written and verbal communication between an attorney and his/her client in custody (i.e. information received in a criminal case) is protected by the strongest professional privilege of confidentiality (v´ed˝oi titok, which may be translated as ‘defence secret’). However, due to the aims mentioned above, the Criminal Procedure Code also provides for an exceptional possibility of piercing the strongest professional privilege of secrecy, by allowing for communication between a defence counsel and his/her defendant to be investigated by means of covert information gathering, if suspicion arises that the attorney has also committed a crime in connection with the crime committed by the defendant.10 The same prerequisites apply to ordering the tapping of the home or office communication systems and telephone lines or to investigating the mail of the defence counsel.11 43. An important conclusion is that the Criminal Procedure Code only provides for the above restrictions in cases where attorneys act as counsel in criminal proceedings. Therefore, for covert gathering of any information other than the 8 S. 244 of the Criminal Code. 9 S. 149(4) of the Criminal Procedure Code. 10 S. 202(4) of the Criminal Procedure Code. 11 S. 202(3) of the Criminal Procedure Code.

234

Hungary

above – even for information found in the attorney’s office – merely the general rules of covert information gathering apply. This conclusion is further supported by a provision of the Criminal Procedure Code, according to which an attorney may still be subject to covert information gathering if he/she cannot be summoned as witness due to his/her status as defence counsel in a criminal proceeding.12

9

The lawyer as witness 44. The most basic tool to learn about the past is hearing a person with knowledge of it. It is obvious that justice – which always aims at discovering past actions – cannot abandon its main tool for gathering information. It therefore generally expects citizens to testify, be it in criminal, civil or other administrative proceedings. This obligation is enforced by the sanctioning of false testimony and the unlawful refusal to testify. There are, however, circumstances when the state – for the protection of other aims acknowledged by the state – refrains from enforcing this obligation. Such cases could involve the prohibition of testifying about state secrets without prior release, or the possibility of relatives to refuse to testify in order not to intervene with family ties. It follows from the above that the members of some professions not only have a statutory obligation to keep the secrets they have learnt through the exercise of their profession, but also have the right to refuse to testify if they have not been relieved of their duty of secrecy. In exceptional cases, this possibility is even formulated in a way that prohibits the authorities from accepting or considering testimony. 45. The Hungarian statutory provisions differentiate between privileged information depending on the subject matter of the mandate. Information received in the course of criminal defence enjoys a higher level of protection in order to ensure the possibility of properly exercising the right of defence. Other client– attorney communication has only a lower level of protection. The higher level of defence secret is not generally connected to representation in a criminal case, but exclusively to defence activity. This means that if an attorney acts as the representative of a victim, the substitute suitor13 or the witness, only the general, but not the special, rules on secrecy apply. This view is further supported by a ruling of the Hungarian Supreme Court, in which it established that the court has to take obstacles to testifying into account ex officio, i.e. regardless of whether the defence counsel refuses to 12 S. 202(5) of the Criminal Procedure Code. 13 If the State Prosecution decides not to raise charges against a person, the injured party may – in certain cases – act as substitute suitor and raise the charges him-/herself.

235

Professional secrecy of lawyers in Europe

testify or not or if a defendant has relieved the attorney of the duty of secrecy.14 The Supreme Court has also pointed out that it is immaterial whether the defendant is an attorney, a trainee lawyer or an appointed attorney and it is also irrelevant whether the attorney acted only in certain stages of the procedure or during the entire procedure because the prohibition to testify adheres to the function of being a defence counsel. It therefore follows from this absolute protection that the presumption of the client’s consent to disclose the confidential information does not apply in cases where the client initiates a procedure against a defence counsel.15

A

Hearing the attorney as a witness in a criminal procedure 46. Within the framework of the differentiation described above, no attorney acting as defence counsel in a criminal case may be heard as witness in connection with information that he/she received from or gave to the defendant in his/her capacity as such counsel.16 Naturally, this obligation also remains after the proceedings have been finished. The prohibition is connected to the attorney’s position at the time of receiving or handing over the information, irrespective of the fact that the attorney was mandated directly by the client or appointed by an authority. It may also occur that the authorities have simply no knowledge of the fact that the attorney has previously been acting as a defence counsel. In such cases, the attorney must refuse to testify, inform the authorities that he/she was acting as defence counsel and justify this information when necessary. 47. The Criminal Procedure Code also provides that a witness may refuse to testify if he/she is bound by the duty of professional secrecy and if revealing the information would be a breach of this duty.17 This means that the fact that information was received as an attorney, but not as a defence counsel, is only a relative obstacle to testimony. A typical scenario of this is when the attorney, who has drafted a civil law agreement of interest in the criminal proceedings, is questioned by the authorities. In such a case, the authorities are obliged to inform him/her of the possibility of refusing to testify, but if he/she does testify after being informed – even without prior release from the duty of confidentiality – the authorities will be authorised to use the testimony as evidence.

B

Testimony in civil proceedings 48. The rules on the testimony of attorneys in civil proceedings differ in two essential points from the rules on criminal procedures. Act III of 1952 (Civil Procedure Code) does not differentiate between an attorney and a defence 14 Case no BH1992.86. 15 S. 4/9/b of the Code of Conduct. 16 S. 82(1) of the Criminal Procedure Code. 17 S. 82(1) c) of the Criminal Procedure Code.

236

Hungary

counsel; it simply provides that a lawyer may refuse to testify if the testimony would infringe his/her duty of confidentiality and if he/she was not relieved thereof.18 This provision was subject to huge controversy as it could be interpreted in such a way that even a defence counsel would be obliged to testify on information received in this quality if he/she was relieved of the related duty of confidentiality. This controversy was solved by the Hungarian Constitutional Court. In one of its decisions it established the only constitutional and therefore applicable interpretation of these provisions.19 It established that the secrecy of information given to a defence counsel is of higher public interest than the right to use all means of proof in a civil procedure. A lawyer may therefore not be relieved of the duty of professional secrecy in connection with information received as a defence counsel. Consequently, it is also not possible to testify about such information. The Constitutional Court considered that the risks such testimony poses to already closed criminal cases is generally too high, since reopening criminal cases is, under certain circumstances, possible in Hungary.

10

The lawyer and the press 49. It is generally accepted that a lawyer speaks on behalf of his/her client in the press. The Code of Conduct does, however, provide that the public appearance of the attorney should be worthy of the prestige of the legal profession. The attorney may only make objective declarations on individual court matters, on judgments or on cases negotiated by him-/herself. These declarations must, furthermore, be on the basis of provable facts, in a tone worthy of the legal profession, and during such appearances he should abstain from pushing himself into the spotlight (S. 15/9 Code of Conduct). In no case, however, is he/she allowed to disclose privileged information.

11

Powers of the tax administration and other authorities 50. Generally, authorities do not have any special rights to pierce the secrecy of privileged client–attorney communication. Act CXL of 2004 (Administrative Proceedings Act) provides that a person may not be heard as a witness on facts qualifying as protected data, if the witness to be heard has not received prior release from the duty of confidentiality. This provision applies to all administrative proceedings, including proceedings of the tax authority.

18 S. 170(1) c) of the Civil Procedure Code. 19 Decision no 169/2010 (IX. 23.) of the Constitutional Court.

237

Professional secrecy of lawyers in Europe

51. The only exception from the above general rule for administrative proceedings is in procedures of the Hungarian Competition Authority, where a wider application of professional privilege may apply. Under Act no LVII of 1996 (Competition Act), attorney–client communication concerning the client’s right of defence in competition proceedings is subject to professional privilege. Therefore any document, created in the interest or in the process of the client exercising his/her fundamental right to a defence, during or for the purpose of communications between the client and his/her defence attorney, or any document which is a record of the contents of such communications – provided in all cases that the nature of these documents is readily apparent from the document itself – will not be admissible as evidence in competition control proceedings and may not be examined or seized, and the holder of such a document may generally not be compelled to produce it for the purpose of inspection. The client may, however, waive this prohibition. 52. If the investigator makes an attempt to compel the client or the client’s attorney to present a document protected by professional privilege, or if the investigator wishes to inspect, take possession or make copies of such a document in the course of a dawn raid, the client or the client’s attorney may refuse it. In such a case, the investigator is entitled to inspect the document to ascertain whether relying upon protection is manifestly unfounded or not. If, contrary to the assertion of the person concerned, the investigator is of the opinion that the document in question is not covered by professional privilege, the document must be placed in a sealed container/envelope and forwarded to the Metropolitan Court, which will decide if the document is indeed covered by professional privilege.

12

State security service 53. Hungarian state security services are also bound to respect the above rules on professional secrecy. As a general rule, the security services qualify as administrative investigative authorities and must comply with the same legal requirements as any other investigative authority, e.g. the police. This means that they also require a judicial warrant in order to perform any activities that qualify as covert information gathering.20 20 SS. 200 ff. of the Criminal Procedure Code.

238

15 Iceland ´ ¨ ´ olafur arinbj orn sigur ð sson, sindri gu ð j onsson Logos

Preliminary note 240 1 Scope of and limitations on professional secrecy 240 A Statutory basis and implications 240 B Scope 242 C Persons subject to the duty of professional secrecy 243 D Limitations and derogations 244 a Limitations 244 b Derogations 246 E Law firms, legal assistants, staff and external service providers 246 F Multidisciplinary associations 247 2 History 247 3 Supervision 248 A The Bar Association 248 B The courts 248 4 Sanctions 249 A Proceedings and sanctions 249 a Disciplinary proceedings and sanctions 249 b Criminal proceedings and sanctions 250 c Civil proceedings and damages 251 B Relationship between criminal sanctions and disciplinary sanctions 251 5 Duty to provide information to the authorities 251 A Money laundering and terrorism 251 6 Treatment of a lawyer’s documents and correspondence in the context of judicial investigations 252 7 Search of a lawyer’s office 253 8 Tapping of telephone conversations with a lawyer 253 9 The lawyer as witness 254 10 The lawyer and the press 257 11 Powers of the tax administration and other authorities 258

239

Professional secrecy of lawyers in Europe

Preliminary note 1. Members of the Icelandic Bar Association are lawyers licensed to be representatives in litigation before the Supreme Court and/or the district courts in Iceland. They are subject to the Act on Lawyers no 77/1998. In this report, the duty of professional secrecy (also known as the attorney–client privilege) of such lawyers is examined. The members of the Icelandic Bar Association are required, in accordance with Article 12 of the Act on Lawyers, to maintain an office open to the public, a separate trust account in an accredited banking institution for monies belonging to clients, and a valid professional liability insurance. In principle, the members of the Icelandic Bar Association are self-employed lawyers, but certain lawyers who are not self-employed may apply for membership in the Icelandic Bar Association according to the second paragraph of Article 12 of the Act on Lawyers on the basis of an exemption from these requirements. These are lawyers holding a permanent position with a public or private institution, provided that they do not render legal services to any other party; lawyers who remain in the employment of another lawyer; or lawyers holding a permanent position with an association, provided that they do not render legal services to any other party than the association itself or its members, and that the legal services rendered fall within the sphere of the association’s activities.

1

Scope of and limitations on professional secrecy

A

Statutory basis and implications 2. In Iceland the attorney–client privilege is based on various statutory provisions. At the outset the fundamental legislative provisions will be very briefly introduced. 3. It is appropriate to start with the supreme law of the country, the Constitution of the Republic of Iceland no 33/1944 (the Constitution). The Constitution provides for the right to a fair trial in Article 70 and for freedom from interference with privacy in Article 71. As demonstrated in the next paragraph, the Constitution is interpreted in accordance with the European Convention on Human Rights (ECHR) (formerly the Convention for the Protection of Human Rights and Fundamental Freedoms), and the case law of the European Court of Human Rights. The confidentiality of the attorney–client relationship has been firmly recognised in the case law of the European Court of Human Rights on the basis of the right to a fair trial and the right to privacy. Therefore Articles 70 and 71 of the Constitution, interpreted in accordance with the ECHR, are highly important with respect to the lawyer’s duty of professional secrecy. The ECHR was incorporated in Iceland in its entirety by the adoption of Act no 62/1994, and the provisions of the ECHR may therefore be invoked

240

Iceland

in court as domestic legislation. The ECHR has a higher status than general legislation and its provisions complement the human rights provisions of the Constitution. Legislative provisions that would contradict the ECHR would be deemed unconstitutional.1 There are no specific provisions in the ECHR pertaining directly to the attorney–client privilege, but the confidentiality of the attorney–client relationship has been firmly recognised in the case law of the European Court of Human Rights. Most of the cases relate to Article 6 (the right to a fair trial) and Article 8 (the right to respect for private and family life).2 4. In Iceland there are several statutory provisions in force pertaining directly to the lawyers’ duty of professional secrecy. All members of the Icelandic Bar Association are subject to Act on Lawyers no 77/1998. Article 22 lays a duty upon lawyers to maintain secrecy with respect to matters confided to them in the course of their functions and a similar duty is laid upon their employees with respect to such confidential matters as they may become aware of in their work. Pursuant to the second paragraph of Article 5 of the Act, the Icelandic Bar Association shall issue a Code of Ethics for lawyers. The Code contains many provisions that are directly relevant to lawyers’ duty of professional secrecy, which will be discussed later herein. In the third paragraph of Article 35 of Act no 88/2008 on Criminal Procedure a specific duty of confidentiality and non-disclosure is imposed on the defence counsel, and in Article 45 a somewhat similar duty is imposed on the legal representative of a victim. Both in Act no 91/1991 on Civil Procedure (Article 53) and the Act on Criminal Procedure (Article 119), lawyers are prohibited from answering questions as witnesses with respect to matters relating to the private circumstances of persons confided to them in the course of their functions. In addition, the Act on Civil Procedure forbids lawyers to testify on any other matter of which they have gained knowledge by other means in the course of their functions. There are exceptions to these prohibitions (see nos 36 and 39 of this chapter). In the third paragraph of Article 9 of Act no 87/1998 on Official Supervision of Financial Activities, it is stated that natural and legal persons must, during supervision pursuant to special laws, furnish the Financial Supervisory Authority with any information or data that the Financial Supervisory Authority deems necessary. The only information excluded is information provided to lawyers in the course of investigating the legal position of the lawyers’ client in connection with a legal action, including when lawyers provide their client with advice on whether to instigate legal action or avoid legal action, and 1 S. L´ındal, Um l¨og og l¨ogfræði, Reykjavik, 2002, 8. 2 D. Bj¨orgvinsson, Lawyer–Client Confidentiality Case Law of the ECHR, Madrid: FBE, 2011, 2.

241

Professional secrecy of lawyers in Europe

information obtained by the lawyer before, during or after legal proceedings if the information is directly related to the case.3

B

Scope 5. According to Article 22 of the Act on Lawyers, lawyers have a duty to maintain secrecy with respect to any matter confided to them in the course of their functions. Article 22 obviously does not contain a detailed description of the scope of lawyers’ duty of professional secrecy, but is nevertheless very important. 6. The Code of Ethics adopted by the Icelandic Bar Association, pursuant to Article 5 of the Act on Lawyers, does, however, contain more detailed provisions with respect to the attorney–client privilege. The first paragraph of Article 6 of the Code of Ethics states that information which a lawyer obtains professionally shall be kept away from unconcerned parties, even though no legally prescribed confidentiality applies to the information. The first paragraph of Article 6 therefore lays a more extensive duty of professional secrecy on lawyers than Article 22 of the Act on Lawyers, which only prescribes a duty to maintain secrecy with respect to matters confided to the lawyer in the course of his or her functions, but the first paragraph of Article 6 of the Code of Ethics refers to any information that the lawyer obtains professionally (confided to him or her or not). The lawyer must also maintain secrecy with regard to information not subject to a legally prescribed duty of confidentiality according to Article 6 of the Code of Ethics. Furthermore, a lawyer may not, according to the second paragraph of Article 6, make use of information received in confidence in the course of his or her professional activities for the benefit of an opposing party. Of particular interest is Article 17 of the Code of Ethics, where it is stated that a lawyer may never, unless decided by the final ruling of a court of law directed at him- or herself or expressly provided for by statute, provide unconcerned parties with data and information concerning a client, or a former client, which the lawyer has received in the course of his or her work. This duty remains after a task has been completed (cf. Art. 17, para. 4). 3 It is also possible to mention an article in Act no 87/1998 on Official Supervision of Financial Activities which would only concern lawyers working for the Financial Supervisory Authority, including lawyers who may work for the Authority while being members of the Icelandic Bar Association. It stipulates in Article 13 that lawyers working for the Financial Supervisory Authority may not, upon penalty of sanctions under the General Penal Code regarding civil servants, divulge to unauthorised parties information, which they may acquire in the course of their work and which should remain secret, on activities of the Financial Supervisory Authority or on the business and operations of regulated entities, related parties or others, unless a judge rules that they are obliged to provide information to a court of law or the police, or that such information must be disclosed in accordance with the law.

242

Iceland

7. Lawyers’ duty of professional secrecy requires secure safekeeping of documents and information entrusted to the lawyer.4 This duty is reflected in the second, third and fourth paragraphs of Article 40 of the Code of Ethics of the Icelandic Bar Association. The second paragraph stipulates that a lawyer shall ensure that the keeping of his or her office’s accounts and the safekeeping of valuables, documents and other relevant data conform to the law and to established practice in that respect. According to the third paragraph, the lawyer shall not allow unauthorised persons access to documents or other data of the office which may concern clients. Pursuant to the fourth paragraph, the lawyer shall take special care that information which shall be kept secret on account of a client’s interests will not be conveyed to other classes of business, e.g. on account of the use of equipment, in case the lawyer is operating a law office in premises with other classes of business having different confidentiality obligations. 8. The duty of professional secrecy covers all information that the lawyer obtains professionally. No distinction is made between oral, written and digital information, and the lawyer may not, unless decided by the final ruling of a court of law directed at himself or expressly provided for by statute, disclose privileged information by any means. Furthermore, he or she may not make use of information received in confidence in the course of professional activities for the benefit of an opposing party. There is no provision that distinguishes between different types of legal service offered by lawyers. Therefore it must be assumed that information obtained professionally by lawyers, while providing legal services, is subject to the duty of professional secrecy, whether the information was obtained while representing a client in a legal action, providing assistance with the drafting of contracts, or in the course of any other legal services provided.

C

Persons subject to the duty of professional secrecy 9. Pursuant to the second sentence of Article 22 of the Act on Lawyers, lawyers’ employees are under a duty to maintain secrecy with respect to confidential matters they may become aware of in their work. Furthermore, according to the second sentence of Article 6 of the Code of Ethics, lawyers shall emphasise to their staff that information that they obtain professionally shall be kept away from unconcerned parties. In the first paragraph of Article 40 of the Code of Ethics, it is stipulated that lawyers shall operate their offices properly, be observant of the work performed by their staff and ensure that associate lawyers observe the principles of good legal practice. In the third and fourth paragraphs it is stated that the lawyer must prevent unauthorised persons from accessing 4 E. T´omasson, Mikilvægi þess að gætt s´e tr´unaðar ´ı skiptum l¨ogmanna og skj´olstæðinga þeirra, Reykjavik, 2011, 218.

243

Professional secrecy of lawyers in Europe

privileged information, and the same rule applies to the staff of the lawyer. It must therefore be concluded that all the staff working for a lawyer are subject to the duty of professional secrecy, albeit under the responsibility of lawyers who are members of the Bar Association. Partners working with the lawyer are also subject to the duty of professional secrecy with respect to the information that the lawyer might share with them.

D

Limitations and derogations 10. There are exceptions where the lawyer is under a duty to disclose information that otherwise would be considered privileged, as well as derogations where the lawyer needs to exercise discretion.

a

Limitations

11. Disclosure of information may be required in order to avert intended, imminent or commenced criminal offences. If a lawyer, including a criminal defence lawyer, obtains knowledge of an intended, imminent or commenced criminal offence in the course of his work, he may have a duty to notify the authorities. Article 126 of the General Penal Code no 19/1940 stipulates that if a person has obtained knowledge to the effect that high treason, offences against the Constitution of the State and its Supreme Administration, or another offence which endangers human life or welfare or important public values is being contemplated or has been commenced and he does not make his best endeavours to prevent the offence or its consequences, including, if necessary, by notifying the authorities of his knowledge, then he shall, if the offence is committed or attempted thereafter, be subject to imprisonment for up to three years or fines in the event extensive mitigating circumstances are at hand.5 In spite of lawyers’ duty of confidentiality, they would still be subject to this article in the General Penal Code.6 In the event a lawyer obtains knowledge of other sufficiently significant criminal offences, such as duress, fraud or exploitation, being contemplated or commenced, the lawyer might have a duty to disclose information, perhaps to the intended victim or the authorities, even though there is no similar statutory reporting requirement or a duty to take action to that provided for in Article 126 of the General Penal Code, provided that the lawyer cannot avert the 5 One might refer to Article 169 of the General Penal Code as well in this context: ‘A person omitting to do all in his/her power to give a warning of or prevent a fire, explosion, spreading of noxious gases, flood, shipwreck, other traffic accidents or such disaster which endangers humans or great values shall be subject to fines or imprisonment for up to one year, provided he/she would have been able to do so without endangering his/her essential interests or those of others.’ 6 J. Þ´omundsson, Hlutverk og r´ettarstaða verjanda, Reykjavik, 1985, 241.

244

Iceland

offence by other means, such as by persuading the potential offender not to commit the criminal offence. It must be noted that no obligation of disclosure applies with respect to criminal offences that have already been committed. Finally, lawyers should disclose information pertaining to the accusation of, or judgment against, an innocent party in a criminal case.7 12. Lawyers may not, without the approval of their clients, or a former client, protected by the duty of professional secrecy, testify on matters relating to the private circumstances of persons confided to them in the course of their functions in civil and criminal proceedings, and in civil proceedings lawyers should not testify on other matters of which they have gained knowledge by other means in the course of their functions (see Art. 53, para. 2(b), of the Act on Civil Procedure, and Art. 119, para. 2(b), of the Act on Criminal Procedure). If certain requirements are met, the judge may lift the prohibition and require lawyers to answer questions about such matters. However, according to Article 17 of the Code of Ethics of the Icelandic Bar Association, a lawyer may not answer such questions in court, or otherwise provide unconcerned parties with data and information concerning a client, or a former client, unless decided by the final ruling of a court of law directed at him- or herself. It is important to note that the ruling must be directed at the lawyer (see no 37 of this chapter). In the event of such a final ruling, the lawyer would be under a duty to disclose the information. No such ruling may be directed at the defence counsel in a criminal case (see no 39 of this chapter). 13. A lawyer may also be under a duty to disclose information according to express provisions in statutes. In Article 17 of the Code of Ethics, lawyers are forbidden to provide data and information concerning a client or a former client, unless decided by the final ruling of a court or expressly provided for by statute. Among such express statutory provisions are provisions in Act no 64/2006 on Measures against Money Laundering and Terrorist Financing (see no 30 of this chapter), Act no 90/2003 on Income Tax (see no 45 of this chapter) and Act no 77/2009 on the Protection of Privacy as Regards the Processing of Personal Data. The last Act is intended to promote the practice of personal data processing in accordance with fundamental principles and rules regarding data protection and privacy. The Act establishes the Data Protection Authority for monitoring the application of the Act. According to Article 38, the Data Protection Authority may access certain information to perform its monitoring role. According to the third paragraph, the Data Protection Authority’s right to request information or access facilities and equipment will not be restricted on the grounds of rules regarding the obligation to maintain secrecy.

7 Ibid., 241.

245

Professional secrecy of lawyers in Europe

b

Derogations

14. In the third paragraph of Article 17 of the Code of Ethics of the Icelandic Bar Association, it is stated that, upon request by a client, a lawyer may deliver the data or provide information concerning a client, provided this be required by the obvious interests of a client. Thus the consent, approval or request of a client for the disclosure of privileged information is not enough to release the lawyer from the duty of professional secrecy. The paragraph lays upon the lawyer a duty to assess whether the disclosure would be required by the obvious interests of the client, and under some circumstances the lawyer should refuse to disclose privileged information in spite of the client’s consent or approval of the disclosure. This would also probably apply with respect to Article 21 of the Code of Ethics, where it is stated that lawyers may not provide a court of law with data or information incriminating a client without the approval of the client in question. 15. Clients cannot give an irrevocable approval or consent to disclosure of information for an indefinite period. This can be derived from, inter alia, Supreme Court Appeal Case no 5/1940(a).8 16. As noted above, lawyers may not testify, without the approval of their client, or a former client, protected by the duty of professional secrecy, on matters relating to the private circumstances of persons confided to them in the course of their functions in civil or criminal proceedings. Furthermore, lawyers should not testify in civil proceedings on other matters of which they have gained knowledge by other means in the course of their functions without the approval of their client, or a former client. In the case of the approval of the client in question, the lawyer would have to assess whether it would be in the interest of the client to disclose the information in accordance with Article 17 of the Code of Ethics.

E

Law firms, legal assistants, staff and external service providers 17. Participation in a company operating a law office, or ownership of such a company, is prohibited for others than lawyers, according to the fourth paragraph of Article 19 of the Act on Lawyers. The rationale behind this provision is to hinder the co-operation of professionals with different confidentiality obligations. Consequently, it is implied that the sharing of privileged information may take place between partners in a law firm. In addition, the second paragraph of Article 17 of the Code of Ethics of the Icelandic Bar Association states that a lawyer’s partners, associates and ´ Tryggvason, Þagnarskylda m´alflutningsmanna og lækna fyrir d´omi um einkam´al manna, 8 A. Reykjavik, 1952, 57.

246

Iceland

other staff may not provide unconcerned parties with data and information concerning a client or a former client which the lawyer has received in the course of his or her work. The entire staff of a law firm are subject to the duty of professional secrecy (see no 9 of this chapter). The Act on Lawyers and the Code of Ethics therefore imply that lawyers who work together in a law firm will obtain privileged information from each other and share it with other staff members of the firm. Nevertheless, excessive and unnecessary sharing of privileged information should be avoided. Such sharing of information may increase the risk of unconcerned parties obtaining the information. Similar principles would apply to the sharing of information with external service providers. If services are needed from external service providers, they would not be deemed ‘unconcerned’ parties and information could be shared with them, and the external service providers would be under a duty of confidentiality in a similar manner to staff members of law firms.

F

Multidisciplinary associations 18. Due to the role of lawyers in a society based on the rule of law, the protection of the legal professional privilege has often been considered more urgent than protecting the professional secrecy of other professions.9 Article 19 of the Act on Lawyers prohibits participation in a company operating a law office, or ownership of such a company, for others than lawyers. The provision therefore prohibits multidisciplinary associations, as the co-operation of lawyers with other professionals with different confidentiality obligations is not deemed suitable.10

2

History 19. From 1262 Iceland was under the rule of various Scandinavian kings. Iceland became a sovereign state in 1918, but shared a king with Denmark until the Republic of Iceland was founded in 1944. On 19 July 1793 the Danish king issued the Decree Respecting the Testimony of Attorneys. This was the first statutory legislation on lawyers’ duty of professional secrecy in Iceland. The decree was binding legislation in Iceland for nearly two centuries and was not repealed until 1991 by the adoption of the Act on Civil Procedure no 91/1991. The Decree was issued in response to an incident that occurred in Denmark. A man, considered to have collected excessive interest, was on trial. His lawyer was asked to testify on matters confided to him by the accused. 9 T´omasson, Mikilvægi þess að gætt s´e tr´unaðar ´ı skiptum l¨ogmanna og skj´olstæðinga þeirra, 218. 10 J. R. M¨oller, Peningaþvætti, þagnarskylda l¨ogmanna og samstarf við aðrar st´ettir, Reykjavik, 1998, 4.

247

Professional secrecy of lawyers in Europe

The lawyer refused to answer the questions, but the lower court ordered the lawyer to testify nevertheless. The Supreme Court did not uphold that decision and the lawyer was not ordered to answer the questions.11 Subsequently the Decree Respecting the Testimony of Attorneys was issued. It provided, inter alia, that lawyers representing a party to a case, or lawyers who had been asked to provide advice to a party with respect to legal proceedings, might not answer questions as witnesses about that which the party had confided to the lawyer. Professional secrecy is one of the cornerstones of any society based on the rule of law, and provisions about professional secrecy are adopted in the interest of the entire society.12 Such provisions have been in force in Iceland for a considerable time. Apart from the Decree of 1793 it might be noted that the provisions found in Article 53 of the Act on Civil Procedure and in Article 119 of the Act on Criminal Procedure can be traced back to Act no 85/1936 on Civil Procedures, and similar provisions were contained in Act no 27/1951 on Criminal Procedures. The first Act on Lawyers was the Act on Attorneys no 61/1942 and it contained provisions on professional secrecy.13

3

Supervision

A

The Bar Association 20. Lawyers’ duty of professional secrecy is laid down in the Code of Ethics of the Icelandic Bar Association. The Board of the Icelandic Bar Association shall ensure that the principles set out in the Code of Ethics be observed – see Article 43 of the Code of Ethics. The Lawyers’ Disciplinary Committee will render decisions on disputes concerning interpretation of the Code of Ethics (see no 22 of this chapter).

B

The courts 21. The civil courts have jurisdiction to hear any claim for professional liability brought against a lawyer by a client, and the Board of the Icelandic Bar Association shall consult the courts and administrative authorities as appropriate in the context of its supervisions of observance of the principles set out in the Code of Ethics of the Icelandic Bar Association. 11 A. Pedersen, Indlending til Sagforergerningen I, Copenhagen, 1953, 124–6. 12 T´omasson, Mikilvægi þess að gætt s´e tr´unaðar ´ı skiptum l¨ogmanna og skj´olstæðinga þeirra, 215. 13 Lawyers’ Disciplinary Committee Case no 14/2005.

248

Iceland

4

Sanctions

A

Proceedings and sanctions

a

Disciplinary proceedings and sanctions

22. The Lawyers’ Disciplinary Committee will render decisions on disputes concerning interpretation of the Code of Ethics of the Icelandic Bar Association. A lawyer is obliged, on request by the Board of the Icelandic Bar Association or, as the case may be, the Lawyers’ Disciplinary Committee, to provide the Board with an adequate explanation of his or her case concerning an alleged violation or a dispute relating to the interpretation of the principles set out in the Code of Ethics. In this regard a lawyer is obliged, without undue delay, to reply to the questions and heed the summons of the Board or the Disciplinary Committee – see the third and the fourth paragraphs of Article 43 of the Code of Ethics. According to Article 3(b) of the Lawyers’ Disciplinary Committee Rules Respecting the Processing of Cases, the Lawyers’ Disciplinary Committee deals with complaints against lawyers from a party on account of conduct which may constitute a violation of laws or of the Code of Ethics of the Icelandic Bar Association – see Article 27 of the Act on Lawyers. It may therefore deal with complaints from clients with respect to violations of provisions in the Code of Ethics and in laws concerning professional secrecy.14 Pursuant to Article 3(c) of the Rules, its task is also to deal with messages which the Board of the Icelandic Bar Association sends to the Committee in accordance with the third paragraph of Article 43 of the Lawyers’ Code of Ethics. 23. Pursuant to the fifth paragraph of Article 43 of the Code of Ethics, the Lawyers’ Disciplinary Committee may admonish individual members for breaching their duty of professional secrecy. In the event a lawyer becomes guilty of a violation of good lawyer’s conduct according to a decision or an opinion of the Lawyers’ Disciplinary Committee, the Committee may, pursuant to the last paragraph of Article 43 of the Code of Ethics, specify the lawyer’s name upon publication of the decision or opinion if the lawyer has repeatedly violated professional duties, if the lawyer has become guilty of serious violations of good lawyer’s practice, or if other important public interests or those of the legal profession justify this. According to the second paragraph, the Committee may censure a lawyer’s action or conduct, or issue a formal warning. In serious cases, or if the lawyer 14 Pursuant to Article 27 of the Act on Lawyers, the Committee shall dismiss such complaints if the period that has passed since it first could have been brought before the Committee exceeds one year.

249

Professional secrecy of lawyers in Europe

has repeatedly been admonished, the committee may proceed as referred to in Article 14 of the Act on Lawyers. According to Article 14 of the Act on Lawyers, the Lawyers’ Disciplinary Committee may, if it receives a complaint against a lawyer, and the Committee is assured that the lawyer has seriously or repeatedly violated the Code of Ethics of the Icelandic Bar Association, to the extent of rendering further licensed legal practice unacceptable, in a reasoned opinion sent to the minister of the interior, propose a suspension of the lawyer’s licence, or a revocation of the licence in serious cases. The minister shall take a stance with respect to the proposal within two months from receiving it.15 24. Decisions and settlements of the Lawyers’ Disciplinary Committee may be invalidated or amended by a court of law. 25. Cases before the Lawyers’ Disciplinary Committee dealing with complaints regarding violations of professional secrecy are not common. To get an idea of how the Committee might evaluate violations, and of sanctions imposed, let us consider the Lawyers’ Disciplinary Committee Case no 14/2005. The complainant had sought advice from a lawyer at a certain law firm because of private matters while he was working as the managing director of a corporation. Soon thereafter he stopped working for the corporation. Subsequently, the corporation sued the complainant for breach of contract. The corporation was represented by two lawyers working for the same law firm as the lawyer who had previously furnished the complainant with legal advice. The corporation based its case upon, amongst other things, information about private matters that the complainant had provided to the firm upon seeking the advice. The disclosure and submission of this information was considered to be in violation of Article 22 of the Act on Lawyers, and of the first paragraph of Article 6 and the second paragraph of Article 17 of the Code of Ethics of the Icelandic Bar Association. The Committee stated that since the information had been furnished by the complainant while receiving legal services at the law firm, stringent demands of secrecy should be imposed upon the lawyer. Because of mitigating circumstances, the lawyer’s actions and conduct were only censured with reference to the second paragraph of Article 27 of the Act on Lawyers. b

Criminal proceedings and sanctions

26. Lawyers are public functionaries and subject to rights and duties as such pursuant to the third paragraph of Article 1 of the Act on Lawyers. A lawyer’s breach of professional secrecy may result in sanctions according to Article 136 of the General Penal Code no 19/1940. Article 136 states that a public 15 The Committee may also propose suspension or revocation even if the lawyer has returned his or her licence to the Ministry of the Interior and the licence has been declared out of effect.

250

Iceland

functionary revealing anything which is to be treated as a secret and of which he has learnt in the course of his work or which pertains to his office or function shall be subject to imprisonment for up to one year. In the event he has done this for the purpose of obtaining unlawful gain for himself or others or if he uses such knowledge with that end in view, imprisonment for up to three years may be applied. According to the second paragraph, the same penalty shall be applied to a person having left official service who thereafter tells of or abuses in the aforementioned manner knowledge he or she has obtained in his or her position which is to be kept secret. c

Civil proceedings and damages

27. As a general principle, lawyers may become liable to pay compensation for financial and non-financial loss according to the generally applicable rules, for any damage they may cause while discharging their functions – see, for example, Supreme Court Case no 306/2001. Lawyers might incur such liability by breaching their duty of professional secrecy.

B

Relationship between criminal sanctions and disciplinary sanctions 28. Disciplinary and criminal sanctions are imposed independently.

5

Duty to provide information to the authorities 29. Lawyers may be under a duty to provide information to the Data Protection Authority (see no 13 of this chapter), tax authorities (see no 45 of this chapter) and the Competition Authority (see no 46 of this chapter), as well as to provide information during criminal proceedings not protected by Article 68 or Article 119, paragraph 2(b) or (d), of the Act on Criminal Procedure (see no 33 of this chapter).

A

Money laundering and terrorism 30. Lawyers, amongst others, are subject to Act no 64/2006 on Measures against Money Laundering and Terrorist Financing when they manage or represent clients in any form of financial or real-estate dealings and when they assist in the organisation or conduct of business for their clients with respect to the purchase and sale of real estate or enterprises; when they manage cash, securities or other assets of their clients; when they open or manage commercial bank accounts, savings bank accounts or securities accounts; when they arrange financing needed for the establishment, operation or management of enterprises; or when they establish, operate or manage custody accounts, enterprises and similar entities – see Article 2, paragraph 1(f), of the Act. The Act imposes a duty on the lawyer to report to the competent authorities any knowledge of money laundering and terrorist financing. 251

Professional secrecy of lawyers in Europe

Article 21 of the Act on Measures against Money Laundering and Terrorist Financing provides that disclosure in good faith to the police by a person under obligation to report information pursuant to this Act shall not constitute a breach of any principle of professional secrecy imposed by law or by other means. Paragraph 2 of Article 21 states that the provision of such information shall not make the natural or legal persons or their employees criminally liable or liable for civil damages.

6

Treatment of a lawyer’s documents and correspondence in the context of judicial investigations 31. Pursuant to Article 6(3)(b) and (c) of the European Convention on Human Rights, everyone charged with a criminal offence shall have adequate time and facilities for the preparation of their defence and the right to defend themselves in person or through legal assistance of their own choosing. The European Court of Human Rights has maintained that the confidentiality of communications between the accused and the defence counsel must be guaranteed in order to ensure a fair trial and effective legal assistance for the defendant in a criminal case according to these provisions. Accordingly, the first paragraph of Article 36 of the Act on Criminal Procedure states that the defence counsel may speak privately with the accused about any matter relevant to the case. Documents which contain information provided by the accused to the defence counsel and vice versa, as well as correspondence between the defence counsel and the client, are privileged. In the second sentence of the first paragraph of Article 68 of the Act on Criminal Procedure it is stated that items containing information about communications between the accused and the defence counsel may not be seized. The second paragraph of Article 99 of the Act on Criminal Procedure states that an accused person remanded in custody may send letters to his or her defence counsel without the content of the letter being examined. The same must surely apply to letters sent by the defence counsel to the accused.16 32. When it comes to documents and correspondence with a lawyer who is not, or has not been, the criminal defence lawyer of the person charged with a criminal offence, documents and correspondence concerning a person’s private circumstances, confided to a lawyer in the course of the lawyer’s function, and information on trade secrets and inventions, obtained by lawyers in the course of their functions, are privileged pursuant to the first paragraph of Article 68 16 T´omasson, Mikilvægi þess að gætt s´e tr´unaðar ´ı skiptum l¨ogmanna og skj´olstæðinga þeirra, 221.

252

Iceland

and Article 119, paragraph 2(b) or (d), of the Act on Criminal Procedure and may not be seized or examined.

7

Search of a lawyer’s office 33. In the second paragraph of Article 74 of the Act on Criminal Procedure, the requirements that must be met in order to allow the search of premises, storage areas or vehicles of other persons than the accused are set out. The police authorities must, as a general rule, obtain a court order authorising the search, or obtain the consent of the owner or the person responsible for the premises, storage areas, vehicles, etc. In order for such a search to be permitted by a court of law, there must be reasons to assume that the accused is dwelling there, or that items are located there which should be seized. Pursuant to the second sentence of the first paragraph of Article 68 of the Act on Criminal Procedure, items containing information about communications between the accused and the defence counsel, and information covered by the second paragraph of Article 119 of the Act – i.e. information relating to the private circumstances of persons, confided to lawyers in the course of their functions, and information on trade secrets and inventions, obtained by lawyers in the course of their functions – may not be seized. Therefore a court of law may not authorise the search of a lawyer’s office in order to find items containing such privileged information (either according to Article 68 or according to Article 119, paragraph 2(b) or (d), of the Act on Criminal Procedure), as they cannot be seized. It is, however, possible to seize other items which do not contain confidential information, and a search warrant may be issued accordingly. This can be seen, for example, in Supreme Court Case no 80/2009, where certain documents could be seized from a law office as they were not considered to contain confidential information within the meaning of Article 119, paragraph 2(b), of the Act on Criminal Procedure. A search may also be authorised in order to find items containing information that the lawyer obtained in relation to functions other than providing legal services, for example while serving as a board member of a company, as such information would not be privileged.17

8

Tapping of telephone conversations with a lawyer 34. Pursuant to Article 6(3)(b) and (c) of the European Convention on Human Rights, it should be assumed that the accused and the defence counsel can converse by telephone without the telephone conversation being tapped.18 17 Supreme Court, 3 July 2009, Case no 363/2009. 18 T´omasson, Mikilvægi þess að gætt s´e tr´unaðar ´ı skiptum l¨ogmanna og skj´olstæðinga þeirra, 221.

253

Professional secrecy of lawyers in Europe

9

The lawyer as witness 35. Lawyers can be called to testify in court but in general they may not answer questions that require the disclosure of information protected by the duty of professional secrecy. 36. A lawyer who has previously rendered services to a party to a case may be ordered to testify on matters that are subject to professional secrecy in civil proceedings if certain requirements are met. In paragraph 2(b) of Article 53 of the Act on Civil Procedure, lawyers are listed together with various other professionals bound by a duty of secrecy. No distinction is made between the different professionals listed. These professionals are not permitted to testify on matters relating to persons’ private circumstances confided to them in the course of their functions, or other matters of which they have gained knowledge by other means in the course of their functions, except with the approval of the party or parties in question. According to paragraph 3, the judge may require such disclosure of information protected by paragraph 2(b) if certain requirements are met, even if no approval has been obtained from the party or parties in question. The judge may only order such disclosure of information protected by paragraph 2(b) if the specific interests of having the information disclosed are deemed to outweigh the interests of not disclosing the information and if the response will not include an account of the personal circumstances of someone who is not a party to the case. If the judge is in doubt regarding whether he should avail himself of this provision, he may ask the witness to first tell him in secret the answers to the questions to be posed to the witness. In Supreme Court Case no 416/1996, the decision by a district court judge to order a lawyer to answer, as a witness, questions relating to the personal circumstances of the parties was contested. The parties to the case had entered into marriage in 1988 and had separated in 1996. The respondent had given birth to twins following artificial fertilisation using donor sperm in 1995. The appellant claimed that this had been done without his knowledge and approval. The lawyer had prepared their divorce agreement. The lawyer was asked whether he had obtained knowledge of the paternity of the children and of the standpoint of the appellant with respect to the children. The District Court of Reykjavik stated that the disclosure of information would only pertain to information on private circumstances necessary to resolve the case and deemed the interests of the defendant to outweigh the interests of not disclosing the information. An appeal was lodged against its decision to order the lawyer to answer the questions. The decision was upheld by the Supreme Court. It has been questioned whether it is suitable to list lawyers together with other professionals without making any distinction, as is the case in paragraph 2(b) of Article 53 of the Act on Civil Procedure. It has been pointed out that lawyers’ duty of confidentiality is not of the same nature as the duty of accountants or pharmacists, for instance. In the context of the different nature

254

Iceland

of the duty of confidentiality, it is worth noting the provisions of the fourth paragraph of Article 19 of the Act on Lawyers. Therein, participation in a company operating a law office, or ownership of such a company, is prohibited for others than lawyers. The rationale behind this provision is to hinder the co-operation of lawyers with other professionals having a different duty of confidentiality (multidisciplinary partnerships).19 37. According to the first paragraph of Article 17 of the Icelandic Bar Association’s Code of Ethics, a lawyer may never, unless decided by the final ruling of a court directed at him- or herself or expressly provided for by statute, provide unconcerned parties with data and information concerning a client, or a former client, which the lawyer has received in the course of his or her work. In the year 2000 the Code of Ethics was reviewed. The words ‘unless decided by the final ruling of a Court directed at him- or herself or expressly provided for by statute’ were inserted into Article 17. This was done in response to the decision of the Supreme Court in Case no 416/1996 (see no 36 of this chapter). The lawyer was allowed to answer questions pertaining to the private circumstances of the parties by a judgment of the Supreme Court in an appeal case. The appellant claimed that the lawyer should not be allowed, on the basis of professional secrecy, to answer questions relating to the private circumstances of the appellant, but the lawyer had obtained the information while providing the appellant with legal services. The Supreme Court did not rule in favour of the appellant and the lawyer subsequently answered the questions. After the revision of the Code of Ethics, the lawyer would only have been able to answer such questions after a final decision of a court directed at him- or herself, but he was not a party to the appeal case before the Supreme Court where his permission to answer the question was contested, and the decision was therefore not directed at him. 38. It may be assumed that a lawyer representing a party in the case would not be ordered to answer questions relating to matters protected by the attorney– client privilege as that would be deemed unconstitutional with regard to Article 70 of the Constitution of the Republic of Iceland and Article 6 of the European Convention on Human Rights protecting the right to a fair trial. 39. When it comes to criminal proceedings, lawyers who have previously rendered services to a party to the case may under some circumstances be ordered to testify on matters that are subject to professional secrecy (Art. 119 Act on Criminal Procedure). Paragraph 2(b) of Article 119 of the Act is quite similar to paragraph 2(b) of Article 53 in the Act on Civil Procedure discussed above. Certain professionals are listed who are not permitted to testify, except with the approval of the party or parties in question, on matters 19 M¨oller, Peningaþvætti, þagnarskylda l¨ogmanna og samstarf við aðrar st´ettir, 4.

255

Professional secrecy of lawyers in Europe

relating to persons’ private circumstances confided to them in the course of their functions. These are: accountants, social workers, lawyers, pharmacists, doctors, clergymen or representatives of religious organisations, psychologists and professionals subject to similar duties of secrecy. The second paragraph of Article 119 of the Act on Criminal Procedure was modelled after paragraph 2 of Article 53 of the Act on Civil Procedure, and the reference to ‘other matters which the professionals may have gained knowledge of by other means’ was excluded when the Act was adopted in order to make the deviation from the general duty to testify narrower in criminal proceedings.20 According to the third paragraph of Article 119, the judge may order the professionals listed in paragraph 2(b) to testify. This does not, however, apply to clergymen and representatives of religious organisations, or to defence counsel. Criminal defence lawyers cannot be ordered to testify on matters relating to private persons’ circumstances confided to them in the course of their functions. In order to allow or require the professionals to testify, the judge will have to consider the disclosure of information to be for the benefit of interests deemed to outweigh the interests of not disclosing the information, according to the third paragraph of Article 119. In the fourth paragraph, there is a similar stipulation to that in the Act on Civil Procedure, allowing the judge to ask the witness to first tell him or her in secret the answers to the questions that are to be posed to the witness, if he or she is in doubt about whether he or she should avail himor herself of the provision. Even though deviation from the general duty to testify is narrower in criminal proceedings, it must be borne in mind, with respect to defence counsel, that apart from being exempt from the possibility of being ordered to testify on matters relating to persons’ private circumstances confided to the defence counsel in the course of the defence counsel’s functions in the third paragraph of Article 119, Article 35 of the Act on Criminal Procedure imposes an obligation of confidentiality and non-disclosure on the defence counsel with respect to that which the accused has shared with the defence counsel regarding the offence in question and any other matter of which the defence counsel may have acquired knowledge in the course of the defence counsel’s duties and which are not publicly known. When deciding what would be considered publicly known, it must be borne in mind that any restriction of the attorney–client privilege should be construed narrowly. All matters of which the defence counsel gained knowledge in confidential conversations should be excluded from the category of being publicly known. In addition, for matters to be publicly known, the knowledge would have to be considerably widespread beyond the group under the non-disclosure obligation. Almost any person would have to be 20 The Criminal Procedure Bill, submitted to the Icelandic parliament (Althingi) at the 135th legislative session 2007–8.

256

Iceland

able to obtain the information, and that which is ‘publicly known’ must really be known, not merely suspected or based on rumour.21 40. If a lawyer has ceased to be the defence counsel of a person charged with a criminal offence, he or she may be called to testify in the proceedings – see Supreme Court Case no 3/2000 – but will not be compelled to answer questions regarding that which the accused has confided to the lawyer in the lawyer’s service as a defence counsel.22 41. Article 53, paragraph 2(b), of the Act on Civil Procedure and Article 119, paragraph 2(b), of the Act on Criminal Procedure both provide for a duty of confidentiality with regard to matters relating to private circumstances of persons. ‘Persons’ should be interpreted broadly in these provisions to include both natural persons and legal persons.23

10

The lawyer and the press 42. It follows from the principle of professional secrecy that lawyers cannot disclose privileged information in the press. 43. In Article 5 of the Code of Ethics, there are provisions relating to lawyers’ interaction with the press. In the first paragraph it is stated that in the course of a debate in the news media or other public forum concerning a case which a lawyer is or has been handling, he shall respect his client’s wishes to the effect that the matter not be discussed on his behalf. The second paragraph states that a lawyer shall at all times advance protests and corrections in respect of incorrect and misleading news about cases. Otherwise there are no statutory provisions of relevance. 44. Lawyers can speak to the press in order to defend their clients, for example against misleading news about cases – see Article 5 of the Code of Ethics. Lawyers should, of course, be careful when speaking to the press. In Supreme Court Case no 306/2001 a lawyer was ordered to pay damages because of his remarks in the press. He had been the defence counsel of a client who had been accused of a sex offence against X. His client was acquitted. Later the lawyer implied in the press that the alleged victim had accused X of the offence in spite of knowing he had not committed it. He was considered to have caused loss to the alleged victim by his statements in the press and was ordered to pay her damages. 21 Þ´omundsson, Hlutverk og r´ettarstaða verjanda, 240–1. 22 E. T´omasson, R´ettarstaða sakbornings og verjanda, Reykjavik, 2010, 49. 23 T´omasson, Mikilvægi þess að gætt s´e tr´unaðar ´ı skiptum l¨ogmanna og skj´olstæðinga þeirra, 220.

257

Professional secrecy of lawyers in Europe

11

Powers of the tax administration and other authorities 45. Lawyers, amongst other professionals, are required, pursuant to the fourth paragraph of Article 94 of the Income Tax Act no 90/2003, to keep a special record of those clients to whom they give tax consultancy services or other services, regarding the control, or direct or indirect ownership, by the clients of companies, funds or institutions that are registered out of the country, or of offshore assets. They are obliged, on request, to hand over the records in question to the tax authorities. The provisions of other Acts concerning confidentiality and secrecy take second place to the provisions of this Article, according to the fifth paragraph. As Article 17 of the Code of Ethics of the Icelandic Bar Association states that lawyers may deliver data and information concerning a client if express provisions in statutes so require, lawyers would have to hand over the records referred to in the fourth paragraph of Article 94 of the Income Tax Act. The fourth and fifth paragraphs of Article 94 of the Income Tax Act were inserted in 2009 by the adoption of Act no 46/2009. In the commentary accompanying the bill that later became Act no 46/2009, it was stated that similar amendments ought to be made to the Value Added Tax Act no 50/1988, the Act on the Withholding of Public Levies at Source no 45/1987 and the Act on Withholding of Tax on Financial Income no 94/1996. No such amendments have been made. 46. The Competition Authority may, according to the first paragraph of Act no 44/2004 on Competition, in the course of the investigation of a case, carry out inspections on the premises of an undertaking and associations of undertakings and seize documents and other evidence when there are compelling reasons to believe that the Competition Act or the decisions of the competition authorities have been violated. Pursuant to the second paragraph of Article 20 of the Competition Act, such search and seizure is subject to the provisions of the Code of Criminal Procedure. The Competition Authority may therefore not search for and seize items located in law offices containing information protected under Article 68 or Article 119, paragraph 2(b) or (d), of the Act on Criminal Procedure (see no 33 of this chapter). It may be assumed that those subject to investigation of the Competition Authority may be afforded the same legal rights as those charged with criminal offences pursuant to the Act on Criminal Procedure.24 47. According to the Customs Act no 88/2005, the Code of Criminal Procedure applies also to the Custom Authorities’ search and seizure of items. 24 Ibid., 226.

258

16 Ireland liam kennedy, sarah conroy A&L Goodbody

Preliminary note 260 1 Scope of and limitations on professional secrecy 260 A Statutory basis and implications 260 B Scope 260 C Persons subject to the duty of professional secrecy 261 D Limitations and derogations 261 E Law firms 261 F Legal assistants and staff 262 G External service providers 262 H Multidisciplinary associations 262 2 History 262 3 Supervision 262 A Solicitors 262 B Barristers 262 4 Sanctions 263 A Sanctions 263 B Proceedings and sanctions 263 a With respect to barristers 263 b With respect to solicitors 264 C Relationship between criminal sanctions and disciplinary sanctions 265 5 Duty to provide information to the authorities 265 A Money-laundering legislation 265 B Law on terrorism and related crimes 266 6 Treatment of a lawyer’s documents and correspondence in the context of judicial investigations 266 7 Search of a lawyer’s office 266 8 Tapping of telephone conversations with a lawyer 267 9 The lawyer as witness 268 10 The lawyer and the press 268 11 Powers of the tax administration and other authorities 268 12 State security service 269 13 Future, and conclusion 269

259

Professional secrecy of lawyers in Europe

Preliminary note 1. Lawyers in the Republic of Ireland (whether solicitors or barristers) are subject to duties of lawyer–client confidentiality. Private entities such as banks or limited companies who employ inhouse counsel are entitled to claim privilege over advice that they receive from them in limited circumstances. However, the recent ECJ decision in the Akzo Nobel case indicates that advice obtained from in-house counsel in these circumstances is not covered by legal privilege in EU competition investigations. This decision has not yet been considered by the Irish courts.

1

Scope of and limitations on professional secrecy

A

Statutory basis and implications 2. Lawyer–client privilege is a long-established legal principle in Ireland, primarily enshrined in common law but also reflected in various statutory provisions such as those outlined in this chapter. In general, a client is entitled to refuse to disclose (and to prevent his or her lawyer from disclosing) confidential lawyer–client communications connected with the giving of legal advice. In addition to lawyer–client privilege, disclosure may also be refused on the basis of litigation privilege, which is also discussed below. In general, the court has no discretion to override the privilege on the basis of some countervening public interest. However, there are limited exceptions to this. Privilege can be waived by the client. 3. Five conditions must be satisfied in order to establish legal advice privilege. There must be (i) a communication, (ii) given in confidence, (iii) between a lawyer and a client, (iv) during a professional legal relationship, (v) for the purpose of receiving or giving legal advice. Litigation privilege attaches to documentation or confidential communications created for the dominant purpose of enabling a party to defend actual or threatened proceedings (including communications between a client and a third party).

B

Scope 4. The communications protected by legal advice privilege may relate to litigation but need not do so as long as the communications were exchanged in the context of the professional legal relationship. Privilege is not subject to any time limit. For example, it can survive the death of the client and/or the lawyer.

260

Ireland

C

Persons subject to the duty of professional secrecy 5. Legal advice privilege entitles a client to refuse to disclose and to require the lawyer to refuse to disclose confidential communications between them connected with the giving of legal advice. Communications exchanged with an agent of the lawyer such as a legal partner or an associate are generally protected but communications with an agent of the client are only protected if the client has given the agent the necessary authority to receive legal advice on the client’s behalf. 6. A controversial 2003 decision of the UK Court of Appeal held that legal advice privilege extends only to communications between solicitor and client, and does not extend to preparatory materials drawn up by employees of the client even if they were prepared at the solicitor’s request and for the purpose of being shown to the solicitor. This decision has not yet been considered in the Republic of Ireland and it remains to be seen whether the Irish courts will follow the approach of the UK courts in this regard.

D

Limitations and derogations 7. The Criminal Justice (Surveillance) Act 2009 permits surveillance for certain law enforcement, revenue and security purposes and provides for admissibility of evidence obtained. The Act (Section 5(4)) provides that a judge shall not authorise surveillance if he or she is satisfied that the surveillance being sought to be authorised is likely to relate primarily to communications protected by privilege. Although the legislation does not address this explicitly, it appears that where any privileged communications were in fact intercepted, there would be good arguments to contend that such privileged material could not be used in evidence save in exceptional circumstances. 8. Privilege may be lost if used to conceal a crime or fraud or conduct injurious to the administration of justice. 9. Proceedings relating to children do not constitute a blanket exemption to legal professional privilege and must be addressed on a case-by-case basis. 10. In some cases where there are disputes over testamentary dispositions, privilege may be waived. The reasons for this are: (i) interest in seeing that intentions of testators are carried out, and (ii) that probate proceedings are more inquisitorial than adversarial in nature.

E

Law firms 11. Communications with a legal partner or associate of the firm are generally protected by legal professional privilege. Legal professional privilege is divided into two types: legal advice privilege and litigation privilege. 261

Professional secrecy of lawyers in Europe

F

Legal assistants and staff 12. Information shared with employees of law firms (including non-lawyers such as secretaries, support staff and paralegals) is covered by the lawyer– client privilege.

G

External service providers 13. If law firms in Ireland use external service providers (such as translators, for example) the privilege and duty of professional secrecy also applies to them.

H

Multidisciplinary associations 14. A solicitor can co-operate with fellow professionals (architects, accountants, engineers, actuaries, doctors) on specific matters where a client has given permission to do so. Any information may be shared with fellow professionals with the client’s consent. The partners in a law firm must be practising solicitors but the Irish government has proposed legislation (the Legal Services Regulation Bill) which would permit multidisciplinary practices in which lawyers can participate. This proposed legislation provides, inter alia, for barristers to be eligible to become partners in law firms and for both barristers and solicitors to provide legal services as partners or employees of a firm providing legal services.

2

History 15. A duty of professional secrecy or legal professional privilege in Ireland is a long-established doctrine established over many decades of legal precedent in Ireland and other common law jurisdictions.

3

Supervision

A

Solicitors 16. The Law Society, which regulates the conduct of solicitors, has produced a Guide to the Professional Conduct of Solicitors in Ireland (2002 edition) which contains provisions dealing with privilege and confidentiality between solicitor and client. At the time of writing (January 2013), there is a draft Code under review which includes enhanced provisions in relation to privilege and client confidentiality.

B

Barristers 17. The Code of Conduct for the Bar of Ireland (which applies to Irish barristers) provides (S. 3) that

262

Ireland

Barristers are under a duty not to communicate any third party information entrusted to them by or on behalf of their clients and not to use such information to their clients’ detriment or their own or another client’s advantage. The duty continues at all times after the relation of barrister and client has ceased and after the death of the client and unless the client consents to the making of such communication or it is necessary to make such a communication when answering accusations by the client.

There are exceptions – for example, if a barrister has to notify or inform their professional indemnifier.

4

Sanctions

A

Sanctions 18. The professional bodies governing barristers and solicitors respectively can impose sanctions on their members for breach of their respective codes of conduct. The new Legal Services Regulation Bill proposes the establishment of a Legal Practitioners’ Disciplinary Tribunal to replace the disciplinary tribunals currently in place. The bill was published in October 2011; it is not known if it will be enacted. 19. A solicitor breaching the duty of confidentiality may be liable to various sanctions as set out below. 20. Complaints about barristers are, in the first instance, dealt with by the Barristers’ Professional Conduct Tribunal (‘the tribunal’), which, in the case of incapacity, may refer cases to the Disciplinary Committee of the Benchers of the Honourable Society of Kings Inn. There are rights of appeal from the Tribunal (to an Appeals Board) and its decision may in limited circumstances also be reviewed on legal grounds by the High Court. If the High Court sets aside a Tribunal decision it will remit the case to the Appeals Board. The sanctions which may be imposed on a barrister breaching the duty of confidentiality include the imposition of a fine and, in the case of incapacity, suspension.

B

Proceedings and sanctions

a

With respect to barristers

21. The Disciplinary Code for the Bar of Ireland gives the Tribunal the power to impose disciplinary measures against any barrister where allegations of misconduct have been made by any person or body (S. A4, Disciplinary Code for the Bar of Ireland, adopted 5 July 2010). Such complaints are heard by the Barristers’ Professional Conduct Tribunal (on appeal, the Barristers’ Professional Conduct Appeals Board). The Tribunal consists of nine members, including four practising barristers and five non-lawyers. 263

Professional secrecy of lawyers in Europe

While making the complaint, the complainant must state whether an oral hearing is sought, and, if so, why. A barrister against whom any complaint is made is given fourteen days to reply. The barrister can also seek an oral hearing. The Tribunal also has that option and there is no appeal from its determination as to whether an oral hearing shall be held. The Tribunal is entitled to seek further information and, failing the receipt of such information, it can make a decision on the complaint. The other party is entitled to see information received (S. B5 of the Code). The Tribunal is entitled to determine the procedure to be adopted in investigating and adjudicating upon any complaint. Such procedures are designed to ensure a fair hearing of the complaint and are in accordance with the rules of constitutional and natural justice. 22. Either party may be legally represented (at their own expense). The Tribunal does not have the power to award costs. All proceedings before the Tribunal are heard in private. The Tribunal can request the attendance of any person to give evidence or to make available any documents or other evidence. A barrister is professionally obliged to attend any hearing to give any evidence and to make available any document subject to any obligation of confidentiality to any client. Any Tribunal decision shall contain its reasons and whether the barrister is guilty of a breach of the Code of Conduct or a breach of proper professional standards. The decision of the Tribunal is published by the Tribunal on the Bar Council website. b

With respect to solicitors

23. The Law Society of Ireland Guide to Professional Conduct of Solicitors provides guidance to all solicitors. As of January 2013, this code is under review by the Society. 24. An individual can complain about the conduct of a solicitor to the Law Society’s Complaints and Client Relations section, which will assign the complaint to an investigating solicitor. If it is not possible to resolve the complaint, the latter may ask the Complaints and Client Relations Committee to look at the complaint. The Committee can uphold or reject the complaint. If the complaint is upheld it can direct the solicitor to take certain steps, including (i) to require the solicitor to waive or refund fees, (ii) to impose a reprimand, (iii) to refer the solicitor to the Disciplinary Tribunal or (iv) to direct the solicitor to pay compensation not exceeding €3,000. 25. A complaint of misconduct can also be brought directly to the Disciplinary Tribunal. The Disciplinary Tribunal is an independent statutory tribunal appointed by the president of the High Court to investigate allegations of misconduct against solicitors. It consists of a three-person panel, including a non-lawyer. A successful application to the Tribunal could result in the solicitor being sanctioned, including an order of censure or an order to make a payment 264

Ireland

to the solicitors’ compensation fund, or to pay restitution of up to €15,000 and to pay the costs of the disciplinary proceedings. The Society must be notified of any complaint where the Society is not the referring party and must be served with any documents. Complaints are made on affidavit. Once served, the solicitor respondent is required to file any replying affidavit within twenty-eight days (unless extended by the Tribunal). The parties can file further affidavits in response to each other’s testimony, if necessary. Once the exchange of affidavits is completed, the Tribunal will decide on the basis of the affidavit(s) whether there is a prima facie case for an inquiry. If the Tribunal decides there is a prima facie case for an inquiry, such an inquiry is held, and upon its completion the Tribunal will consider each complaint, make a finding in respect of each complaint and report to the High Court. If the Tribunal concludes that misconduct is established, it must report accordingly to the High Court and must also report on the fitness or otherwise of the respondent solicitor to remain in practice and on the Tribunal’s recommendations as to what, if any, sanctions should be imposed. The High Court may, but is not bound to, accept the Tribunal’s recommendations, and any decision to strike off a solicitor is ultimately at the High Court’s discretion.

C

Relationship between criminal sanctions and disciplinary sanctions 26. There is no relationship between disciplinary sanctions and any criminal sanctions. They are imposed independently and have no effect on each other.

5

Duty to provide information to the authorities

A

Money-laundering legislation 27. Section 42 of the Criminal Justice (Money Laundering and Terrorist Financing) Act 2010 requires designated bodies (including solicitors and barristers engaging in certain types of work) to report, where they have knowledge/suspicions or reasonable grounds to suspect, that an offence of financing terrorism or money laundering has been or may be committed. Section 24(1) imposes this obligation when the lawyer is carrying out any of the following services: 1. Providing assistance in the planning or execution of transactions for clients concerning any of the following: r buying or selling land or business entities; r managing the money, securities or assets of clients; r opening or managing bank, savings or securities accounts; r organising contributions necessary for the creation, operation or management of companies; 265

Professional secrecy of lawyers in Europe

r

creating, operating or managing trusts, companies or similar structures or arrangements. 2. Acting for or on behalf of clients in financial transactions or transactions relating to land. A lawyer who knows or suspects or has reasonable grounds to suspect that an offence of financing terrorism or money laundering is being committed in relation to the business of a client shall report that suspicion to the Garda S´ıoch´ana (the Irish Police) and the Revenue Commissioners (S. 42(1) of the Act). Nothing in the Act requires the disclosure of information that is subject to legal privilege (S. 46). In such circumstances, the Law Society recommends that the solicitor should consider whether to continue to act. Section 46(2) provides an exception in respect of solicitors or barristers in terms of reporting where the solicitor or barrister is ascertaining the legal position of the client. This exception is removed where the information received from or obtained in relation to a client is obtained with the intention of furthering a criminal purpose (Section 46(3)). Section 49 creates the offence of tipping off for money-laundering reports. There are defences available to lawyers, in particular where it involves a decision to cease acting for the client.

B

Law on terrorism and related crimes 28. The Criminal Justice (Money Laundering and Terrorist Financing) Act 2010 deals with this.

6

Treatment of a lawyer’s documents and correspondence in the context of judicial investigations 29. A solicitor may be served with a court order or warrant requiring the production of documentation relating to a particular client.The solicitor has a duty to check the documents in the order and to withhold from disclosure any material which is subject to privilege.

7

Search of a lawyer’s office 30. If the Garda S´ıoch´ana wish to search a lawyer’s premises, they generally need to obtain a warrant from a judge. Any items that are covered by privilege should be retained by the lawyer during the search and not released to the police. (In the event of issues arising, the parties may agree to secure and seal such materials so as to allow either side to apply to the Court for directions in relation to the matter.)

266

Ireland

8

Tapping of telephone conversations with a lawyer 31. The Postal & Telecommunications Services Act 1983 (S. 98) provides generally that any person who intercepts any telecommunications messages shall be guilty of an offence. There are certain exceptions – for example, if such interception is for the purposes of a Garda investigation of a suspected offence or in pursuance of a direction issued by the minister under Section 110 of the Act, or under other lawful authority. The Interception of Postal Packets and Telecommunications Messages (Regulation) Act 1993 (S. 2) provides that the minister can give authorisation for the purpose of criminal investigation or in the interests of the security of the state. The statutory conditions are: 1. That the investigations are being carried out by the Garda S´ıoch´ana (or another public authority charged with the investigation of the relevant type of offence) and concern a (suspected) serious offence; 2. That investigations not involving interception have failed, or are likely to fail, to produce or to produce sufficiently quickly, either information to show whether the offence has been committed, or facts relating to it, and evidence for the purpose of criminal proceedings in relation to the offence; 3. That there is a reasonable prospect that the interception of telecommunications messages would be of material assistance in providing information or evidence and the importance of obtaining the information concerned has regard to all circumstances, notwithstanding the importance of preserving the privacy of telecommunications messages, sufficient to justify the interception. In the case of a serious offence that is apprehended but has not been committed, investigations are carried out for the purpose of preventing the commission of the offence or of enabling it to be detected if it is committed, by the Garda S´ıoch´ana or another public authority charged with the prevention or investigation of offences of the kind in question. Investigations are carried out if investigations not involving interception have failed or are likely to fail to produce or to produce sufficiently quickly information as to the perpetrators, the time and the place and the other circumstances of the offence that would enable the offence to be prevented or detected as the case may be and there is a reasonable prospect that the interception of internal communications and messages would be of material assistance in preventing and detecting the offence and the importance of obtaining the information or evidence concerned is sufficient to justify the interception. 4. In relation to the security of the state, that there are reasonable grounds for believing that particular activities that endanger or are likely to endanger 267

Professional secrecy of lawyers in Europe

the security of the state are being carried out or are being proposed to be carried out. 5. That the investigations are carried out by or on behalf of the person applying for the authorisation concerned in order to ascertain whether activities of the aforesaid kind are in fact being carried out or are being proposed to be carried out, and if so by whom, and their nature and extent. The provision does not expressly address whether the telephone of a lawyer can be tapped if the specified criteria are met, and certainly does not exclude the possibility, but the use or admissibility of privileged information obtained through such surveillance could still be open to challenge.

9

The lawyer as witness 32. There is no absolute bar, but the Guide to Professional Conduct of Solicitors provides that it is ‘unwise’ for a solicitor to be a witness in his or her own case or to remain in a case where a member of his or her firm is called as a witness, unless the evidence to be given is purely formal. The interests of justice should be the deciding factor.

10

The lawyer and the press 33. A lawyer should not reveal anything in relation to an ongoing matter to the media as it could prejudice the outcome. Furthermore, a lawyer’s duty of confidentiality extends to communications with the media.

11

Powers of the tax administration and other authorities 34. The Criminal Justice (Surveillance) Act 2009 gives a judge the power to issue an authorisation to An Garda S´ıoch´ana (police), the Defence Forces (army) and officers of the Revenue Commissioners (tax authorities) to carry out surveillance under the Act. However, the Act provides that a judge shall not issue an authorisation if he or she is satisfied that the surveillance being sought to be authorised is likely to relate ‘primarily to communications protected by privilege’. A superior Garda (police) officer can apply to a judge for an authorisation if there are reasonable grounds for believing, as part of a Garda operation or investigation in relation to an arrestable offence, that: 1. the surveillance is necessary to obtain information as to whether the offence is being committed or as to the circumstances relating to the commission of the offence or to obtain evidence for the purpose of prosecution;

268

Ireland

2. the surveillance is necessary for the purpose of preventing the commission of the arrestable offences; 3. the surveillance is necessary for the purpose of maintaining the security of the state. Similarly, the Defence Forces can apply to a judge for an authorisation where he/she has reasonable grounds for believing (respectively) that such surveillance is necessary for the purpose of state security. Similarly, the Revenue Commissioners can apply to a judge for an authorisation where he/she has reasonable grounds for believing (respectively) that such surveillance is necessary to obtain information as to whether an offence under investigation has been committed or as to the circumstances relating to the commission of the offence or to obtain evidence for its prosecution or to prevent the commission of revenue offences. Section 900 of the Taxes Consolidation Act 1997 (as amended) gives the tax authorities the power to compel a person (including a lawyer) to furnish information, documents or other particulars to the Revenue Commissioners. There are some exceptions to this, which include where the information sought is information with respect to which a claim to legal professional privilege could be maintained in legal proceedings or where the information relates to professional advice of a confidential nature given to a client (other than advice given as part of a dishonest, fraudulent or criminal purpose).

12

State security service 35. There is no separate state security service in this jurisdiction.

13

Future, and conclusion 36. It is clear that the concept of legal professional privilege will continue to evolve in the future. The recent decision in the Akzo Nobel case (although it refers to EU competition investigations only) may also lead to further developments in relation to the limits on legal professional privilege insofar as they extend to in-house counsel in the Republic of Ireland.

269

17 Italy antonella brambilla, alberto carpani Chiomenti Studio Legale, Milan

Preliminary note 271 1 Scope of and limitations on professional secrecy 271 A Statutory basis and implications 271 a General 271 b Ethical rules 273 c Protection of personal data 274 B Scope 277 C Persons subject to the duty of professional secrecy 278 D Limitations and derogations 279 a Exceptions 279 b Waiver 280 E Law firms 281 F Legal assistants and staff 282 G External service providers 282 H Multidisciplinary associations 282 2 History 283 3 Supervision 283 A The bar associations 283 B Courts 284 4 Sanctions 284 A Proceedings and sanctions 284 a Disciplinary proceedings and sanctions 284 b Criminal proceedings and sanctions 286 c Civil proceedings and damages 286 B Relationship between criminal proceedings and disciplinary proceedings 286 5 Duty to provide information to the authorities 286 A Money laundering and terrorism 286 6 Search of a lawyer’s office 287 7 Tapping of telephone conversations with a lawyer 288 8 The lawyer as witness 288 9 The lawyer and the press 288 10 Powers of the tax administration and other authorities 289 11 State security service 289

270

Italy

Preliminary note 1. In Italy, the duty of confidentiality is very broad and it is the lawyer’s primary duty, other than respecting the law, to keep secret all pertinent information in legal matters provided to the attorney or coming to the attorney’s knowledge in the course of providing legal advice or assistance. In Italy, unless a breach of confidential information can be justified as fitting within the limited exceptions provided in applicable laws and ethical provisions, the lawyer’s duty of confidentiality prevails. 2. The duty to preserve a professional secret is imposed upon regulated legal professionals who are authorised to pursue their professional activities under the professional title of ‘lawyer’ (avvocato)1 who are registered with the Bar Association (Consiglio dell’Ordine) where they have their domicile or practice). In Italy, there is a bar association in each judicial district (circondario di Tribunale) composed of a variable number of members, depending on the number of registered lawyers. The duty of confidentially also applies to attorney trainees (praticanti avvocati) who are juris doctors spending at least eighteen months training with a law firm and are enrolled in a special register held with the competent bar association. As the exercise of attorney–client privilege in Italy is protected by statutory provisions applicable to lawyers and trainees only, it follows that those who are not entitled to pursue their activities under this professional title do not fall within the relevant statutory provisions. 3. This report focuses on the duty of professional secrecy, or attorney–client privilege, of attorneys (here including trainees).

1

Scope of and limitations on professional secrecy

A

Statutory basis and implications

a

General

4. The duty of confidentiality imposed on lawyers is governed by statutory and ethical rules governing attorneys’ conduct. The main Italian provisions on legal professional secrecy are contained in the Criminal Code, in the Code of Criminal Procedure, in the Code of Civil 1 Law school in Italy lasts four years and confers the title of juris doctor (dottore in giurisprudenza). However, in order to practise law it is necessary to become an attorney-at-law (avvocato). Such qualification requires, save for particular cases (such as university professors in judicial matters) at least eighteen months of training in a law firm and attendance at judicial courses, at the end of which the trainee (praticante avvocato) can apply to take the bar exam. The exam comprises separate written and oral exams and only if the trainee passes such an exam can he/she register at the Bar Association as avvocato.

271

Professional secrecy of lawyers in Europe

Procedure and in Law no 234 of 31 December 2012, entered into force on 2 February 2013 (the Professional Law). Lawyers are bound to observe professional secrecy in a way even more rigorous than other professionals (such as medical doctors); confidentiality is not only a duty, but also a right for a lawyer, with respect to both judicial and extrajudicial situations. Furthermore, confidentiality also extends to former clients and confidentiality must be observed even when a mandate is not accepted. 5. Several provisions relate to confidentiality. Article 622 (‘Disclosure of professional secrets’) of the Italian Criminal Code provides that if a person reveals, without authorisation, confidential information received in connection with his or her profession, he or she may be punished by imprisonment of up to one year or by a fine. To constitute a violation of Section 622 the disclosure need not actually harm the client; a violation occurs if it is possible that the disclosure could harm the client. Accordingly, divulging a professional secret without reason (or using the information for one’s own or a third party’s profit) and thereby procuring damage is a felony. Notwithstanding the foregoing, a lawyer may disclose confidential information in the event of just cause. Article 200 (‘Professional confidentiality’) of the Code of Criminal Procedure states that, inter alia, lawyers cannot be compelled to testify about what they have come to know through exercise of their profession, except in cases where they have the obligation to refer it to the judicial authority. Article 256 of the Code of Criminal Procedure requires lawyers to hand over documents in their possession upon request by judicial authorities, unless they declare in writing that the documents are confidential and that the secret concerns the exercise of the lawyer’s profession, leaving the judge with the authority to evaluate whether this declaration is satisfactory and, if it is not, to order disclosure. Article 118 of the Code of Civil Procedure allows the judge to order inspections necessary to know the facts of the lawsuit, provided that this can be accomplished without serious harm to the party or a third party, and without forcing them to violate any secrets under Article 200 of the Code of Criminal Procedure. Article 249 of the Code of Civil Procedure confirms for civil matters the right of the lawyer to refrain from testifying. Article 6 of the Professional Law states:

1. The lawyer is obliged towards third parties, in the interest of the assisted party, to the strict observance of the professional secrecy and to be strictly confidential on facts and circumstances acknowledged in the activity of representation and legal assistance, as well as during the activities related to the legal advice and extra judicial assistance.

272

Italy

2. The provisions set forth under paragraph 1 shall also apply to employees and collaborators of the lawyer, even occasional, as well as to those who carry out their training period, in relation to facts and circumstances acknowledged in their quality or as a consequence of the activity performed. The lawyer is required to ensure that such entities observe the above mentioned duties of secrecy and confidentiality. 3. The lawyer, his collaborators and employees can not be obliged to witness in the proceedings and judgements of any kind on facts or information that has come to their acknowledge in the exercise of the profession or in the period of collaboration or by virtue of the employment relationship, except from the cases provided by law. 4. The breach of the obligations set forth under paragraph 1 represents a disciplinary offense. The breach of the obligations under paragraph 2 represents a just cause for the immediate termination of the employment or collaboration relationship.

6. Furthermore, the duty/right of confidentiality is also protected at a procedural level. Article 103 (paragraph 1) of the Code of Criminal Procedure states that inspections and searches at the office of defence counsel are permitted only when either (i) a lawyer is being prosecuted, (ii) in order to discover traces or other material evidence of the crime or (iii) in order to search for items or individuals identified specifically in advance. Pursuant to Article 103, paragraph 2, of the Code of Criminal Procedure, documents in the hands of defence counsel or technical experts may be seized only if they constitute the so-called corpus delicti. Prior to any inspection, search or seizure the judicial authority must notify the local bar association so that the president or a delegated member of the bar board may be present. Failing such notification, the evidence collected may not be used in any such proceedings. b

Ethical rules

7. The duty of confidentiality imposed on lawyers is strongly governed by ethical rules contained in the lawyers’ deontological code approved by the Italian National Bar Association Committee (Consiglio Nazionale Forense) on 17 April 1997 as amended (the Deontological Code). In particular, Article 9 (Duty of secrecy and confidentiality) of the Deontological Code expressly states the following: It is a duty, and a primary fundamental right of the lawyer, to keep the secret on the activity rendered and on all the information that has been provided to him by the assisted party or that the lawyer has known during his/her mandate.

273

Professional secrecy of lawyers in Europe

I. The lawyer is obliged by the duty of secrecy and confidentiality also towards his/her previous clients, for either judicial or extrajudicial activity. II. The secrecy must be respected also towards the person who has contacted the lawyer, even if the mandate has not been accepted. III. The lawyer is obliged to require respect for professional secrecy also of his/her collaborators and employees and of all the persons who co-operate in carrying out his/her professional activity. IV. The cases where disclosure related to the assisted party is needed are exceptions to the general rule: (a) For carrying out the activity of defence; (b) To avoid the perpetration of a particular severe crime by the assisted party; (c) To demonstrate facts in a controversy between the lawyer and the assisted party; (d) In a proceeding concerning the modalities of the defence of the assisted party’s interest. In any event the disclosure must be limited to what is strictly necessary for the protected interest.

8. The Deontological Code is a very important source for understanding and interpreting the duty of confidentiality that a lawyer should apply. It applies to all lawyers and trainees in their activities as lawyers, in their relationships and vis-`a-vis third parties (Art. 1 of the Deontological Code). Deontological rules have finally been recognised to have the same nature as juridical rules due to the fact that they are based upon the Professional Law (Article 3).2 c

Protection of personal data

9. The protection of personal data is governed by Legislative Decree 196/2003 (the Privacy Code) which, as a general principle, provides that the processing of personal data is permitted only with the consent of the interested party to whom such data pertains and for certain, specific purposes. However, the Privacy Code provides for certain specific exceptions in connection with the processing of data in the course of legal professional activity. In particular, Article 24 states that consent is not required if the processing is necessary to establish or defend a legal claim, provided that the data are processed exclusively for said purposes and for no longer than is necessary, thereby complying with the legislation in force concerning business and industrial secrecy, dissemination of the data being ruled out. 2 The juridical nature of professional rules has also been confirmed by the United Sections of the Supreme Court (pronuncia delle Sezioni Unite della Cassazione 26810/2007).

274

Italy

Article 26 states that sensitive data may also be processed without consent if the processing is necessary to establish or defend a legal claim, provided that the data are processed exclusively for said purposes and for no longer than is necessary therefor. Said claim must not be overridden by the data subject’s claim, or else must consist in a personal right or another fundamental, inviolable right or freedom, if the data relate to health and sex life. In any event, pursuant to Article 13 of the Privacy Code, the lawyer must inform the client of the aims and methods of processing data provided to the lawyer by the client. Furthermore, whenever the personal data are not collected from the data subject, the information, also including the categories of processed data, shall be provided to the data subject at the time of recording such data or, if their communication is envisaged, no later than when the data are first communicated; such obligation does not, however, apply if the data are processed to establish or defend a legal claim, provided that the data are processed exclusively for said purposes and for no longer than is necessary therefor. 10. Furthermore, in January 2009, the Code of Practice Applying to the Processing of Personal Data Performed with a View to Defence Investigations (the Code of Practice) entered into force and became part of the Privacy Code. The purpose of the Code of Practice is to indicate a set of rules in processing personal data to carry out defence investigations and/or to establish or defend a judicial claim whether during a proceeding – including administrative, arbitration and mediation proceedings – or in the preparatory phase prior to instituting a proceeding, or else upon conclusion of a proceeding. Such a set of rules applies, inter alia, to lawyers and/or trainee lawyers included in district rolls and/or the relevant registers, sections and lists whether working alone or as a law firm or partnership and providing in-court and out-of-court assistance and/or advisory services, whether based on a retainer or not, also by means of collaborators and employees.

The code states that a lawyer has to make such arrangements in processing personal data, also without automated means, as are found to be appropriate, on a case-by-case basis, to foster actual respect for data subjects’ rights, freedoms and dignity; in so doing, the principles of purpose limitation, data minimisation and non-excessiveness shall have to be applied; the envisaged safeguards shall have to be assessed as to their substance rather than their form; and the quality and amount of the information to be processed shall have to be taken into account, along with the possible risks. 11. Specific attention should be paid by the above-referenced parties to the adoption of suitable precautions to prevent data from being collected, used or disclosed without justification, where 275

Professional secrecy of lawyers in Europe

1. highly confidential items of information, data and/or documents are acquired, including where such information, data and documents may entail specific risks to data subjects; 2. correspondence is exchanged, in particular via electronic networks; 3. professionals in a law firm carry out activities in respect of their own client portfolio; 4. any data is used whose lawfulness is questionable, partly because of the use of invasive techniques; 5. data contained in specific devices and/or media, in particular electronic media (including audiovisual recordings), and/or in specific documents (telephone and Internet traffic data records, technical and experts’ reports, reports by private detectives) are used and destroyed; 6. records are kept but not used in a proceeding, and database queries are performed for internal purposes, in particular if those databases can be accessed also via electronic networks from offices of the same data controller that are located elsewhere; 7. data and/or documents are acquired from third parties after checking that one has the right to obtain such data and documents; 8. records are kept that relate to cases already dealt with. In connection with data retention and erasure, the code specifically states: The fact that a proceeding pending before a judicial authority is concluded and/or the given assignment has been fulfilled does not mean that the data are to be disposed of. Once the proceeding is extinguished and/or the relevant retainer expires, any record and/or document concerning the subject matter of the defence and/or defence investigations may be kept – either as originals or in copies – including in electronic format, if this is found to be necessary having regard to foreseeable, additional defence requirements applying to the relevant client and/or data controller. This is without prejudice to use of the data in question in anonymous format for scientific purposes. The relevant assessment shall be carried out having regard to the type of data. Where the data are to be retained to comply with legal obligations including taxation and the fight against crime, only such personal data as are actually necessary to comply with the said obligations shall be retained. Without prejudice to the provisions set forth in the Deontological Code of the Bar Association, as for returning the original documents to one’s client, and unless provided otherwise by the law, it is permitted to destroy, erase or deliver the full documents contained in past case files and the respective copies to the person entitled thereto and/or to the latter’s heirs and assignees, on condition the relevant client is notified thereof beforehand.

276

Italy

12. The provisions set forth in Articles 2 and 5 of the Code of Practice shall apply to the following entities without prejudice to what is applicable by law exclusively to lawyers: 1. self-employed professionals providing advisory and assistance services to establish or defend a judicial claim and/or to carry out defence investigations, after being entrusted therewith by a lawyer and/or jointly with a lawyer and/or in the cases and to the extent permitted by the law; 2. any other entities mentioned in Article 1(2) of the Code of Practice (in particular, any other self-employed professionals and/or any other entities providing assistance and/or advisory services for the same purposes in compliance with the law, based on an ad hoc appointment) subject to what is manifestly incompatible with the individual entity and/or the function discharged by the said entity. 13. When it is ascertained that a processing of personal data has been carried out without necessary consents, the Privacy Code provides for criminal and/or administrative sanctions. The Supreme Court has substantially stated that, in the event of conflict between need of privacy/protection of data and need for judicial defence, the latter prevails.3

B

Scope 14. The duty of confidentiality is very broad and it is the lawyer’s primary duty, other than respecting the law, to keep secret all pertinent information in legal matters provided to the attorney or coming to the attorney’s knowledge in the course of providing legal advice or assistance. The lawyer is the depositary of the secrets of his/her client and recipient of confidential communications. Without the certainty of confidentiality there can be no trust; confidentiality is therefore recognised as a right and a fundamental and primary duty of the lawyer. The duty of confidentiality to the lawyer serves the interest of the administration of justice as well as the interest of the client;4 it is therefore a cornerstone of the attorney–client relationship, of which the rationale is to protect not only the client, but also the public trust in the relationship between a client and his or her lawyer. The obligation of professional secrecy imposed on the lawyer, on the one hand, guarantees that the client can freely confide confidential information which will never be revealed (save for specific cases ruled by laws and practice), and, on the other hand, allows the lawyer to pursue his/her job. 3 Cass., sez. Unite, 8 February 2011, no 3034. 4 See Article 2(3) of the CCBE’s Code of Conduct for European Lawyers, which was adopted by the Consiglio Nazionale Forense on 17 April 2008.

277

Professional secrecy of lawyers in Europe

Consequently, any information the lawyer receives, whether written or oral, provided by the client or in the course of soliciting advice regarding the client’s legal rights and obligations, as well as all information which comes to the lawyer’s attention in this context (including information provided by the opposing party or a third party), is covered by attorney–client privilege. The lawyer is obliged by the duty of secrecy and confidentiality also towards his/her previous clients, in both judicial and extrajudicial activity; furthermore, confidentiality must be respected also in the case of a person who has contacted a lawyer, even if the mandate has not been accepted. The strength and importance of such professional secrecy has also been affirmed by the Italian Supreme Court (Corte di Cassazione).5 The concept is therefore very broad and covers all information collected, directly or indirectly, by the lawyer during his/her professional activity.

C

Persons subject to the duty of professional secrecy 15. The duty to preserve professional secrecy is imposed upon lawyers (avvocato) and lawyer trainees (praticanti avvocati) persuant to Articles 6 and 42 respectively of the Professional Law. 16. Full paid employment within a company is thought to be incompatible with the autonomous and independent role of the lawyer; thus, in accordance with the Professional Law, in-house lawyers are not admitted to practise independently, are not considered independent and consequently are not protected by privilege. Even if the in-house lawyer attended the eighteen-month training after obtaining a law degree and passed the Bar exam, thereby meeting the same standards required of an outside lawyer, the two types of lawyer are treated differently under these provisions. In particular, Article 18 of the Professional Law substantially states that the practice of the profession of lawyer is incompatible with any public or private employment, even if it consists in the execution of legal assistance and consultancy that does not have scientific or literary characteristics. Therefore, salaried legal professionals may not be ‘lawyers’,6 with the exception, persuant to Article 19 of the Professional Law, of activities relating to the research and teaching of legal subjects. 5 See, in particular, Cass. pen., Sec. VI, 21 January 2004, no 85. This decision emphasised the stringency of the concept of segreto professionale, and extended its reach to encompass a journalist’s ability to refuse to disclose his or her sources. 6 There is, however, an exception (pursuant to Article 19, sub-paragraph 3, of the Professional Law) in relation to teachers and professors of certain kinds who are in the employment of a public body and work in the legal department of such a body. These persons are entitled to be registered with the Bar Association and are also subject to the Deontological Code.

278

Italy

Legal professionals who are in employment, regardless of their legal qualifications and whether such qualifications were obtained in other jurisdictions, are not covered by the laws of professional privilege in Italy. Accordingly, the above provisions regarding professional secrecy have no application in relation to communications between non-regulated salaried professionals and their employers. However, being employees, such persons would be subject to the normal rules regarding disclosure of the employer’s commercial secrets; in particular, the in-house lawyer is subject to Articles 2105 and 2106 of the Italian Civil Code regulating the duty of loyalty and confidence of the employee towards the employer and to Articles 622 and 623 of the Italian Criminal Code – which consider it a crime to disclose to third parties professional secrets and industrial or scientific secrets respectively. However, these restrictions are not sufficient to justify a refusal of disclosure by the person in question in legal proceedings.

D

Limitations and derogations 17. Attorney–client privilege is subject to certain exceptions and derogations. If an exception applies, the lawyer is obliged to disclose the information that falls under the exception. In the event of derogation, the lawyer can decide whether to disclose the information in question. These exceptions and derogations must, of course, be interpreted narrowly as they constitute limitations on due process and the right to a fair trial in that any information so disclosed may be used against the client in court.

a

Exceptions

18. There are certain, specific exceptions to the general duty of professional secrecy, in cases where disclosure of certain information relating to the assisted party is necessary, in particular: (i) to conduct the client’s defence, (ii) to prevent the commission by the same client of particularly serious crimes, (iii) in relation to the facts in a dispute between lawyer and client and (iv) in proceedings concerning the defence of a client within the limit of disclosure of what is considered strictly necessary for the protected aim. In practice, for example, the National Bar Association Committee has decided that there was no violation of the Deontological Code in a case in which the lawyer, having had knowledge of a bench warrant issued to his client and having received a non-secret copy of a relevant hearing, transmitted information to another lawyer involved in the affair upon authorisation in this sense issued by the client. The National Bar Association Committee also decided that it could not be considered a violation of the Deontological Code when exhibition was made by a lawyer during a hearing of a notification of conclusion of preliminary 279

Professional secrecy of lawyers in Europe

investigation regarding criminal proceedings against a counterpart, since such notification could not be deemed a secret act under Articles 114 and 319 of the Code of Criminal Procedure. 19. As for the exceptions mentioned under points (i) and (iv) above, it is necessary to delve into cases in which it is not easy to distinguish between the duty of professional secrecy and defence of the client. The fact is that these two interests, both safeguarded by the law, may be in conflict, especially where the media holds a great interest in the trial. In case of such conflict, according to the regulations set forth in the Deontological Code, information within the trial cannot be shared and the lawyer can only verify and report violation of the above-mentioned ethical code by the counterpart. At the same time, there is an ongoing debate with respect to attorney– client privilege whenever the media release information not corresponding to the truth, and potentially or practically offensive or hurtful to the client. In this case, the client’s need for protection may prevail over respect for Article 9 of the Deontological Code. Unfounded published information may affect the public’s consideration of the client and, above all, may influence the fairness of the judge. In matters of contrast between the Deontological Code and the client’s right to defence, and specifically between regulations to which the lawyer must conform his actions, the Supreme Court has stated that the need of technical and professional assistance does not deplete the concept of ‘right to defence’. The latter, then, must be considered in reference to the particular situation in which the lawyer and his client act and, in some cases, must prevail over the regulations of the Deontological Code. 20. In detail, legal scholars state that cases where it is more difficult to establish the line between the duty of professional secrecy and the right to a proper defence can be summarised as follows: 1. publication of unfounded information related to the client or to the facts for which he has been investigated; 2. publication of a true circumstance or of an abstract of an act under confidentiality concerning a preliminary investigation able to influence public opinion about the client; 3. publication of a reconstruction of the facts not corresponding to the truth, or publication of unfounded conjecture; 4. activation of a press campaign detracting from the party charged. b

Waiver

21. The client can release the lawyer from the obligation to keep information confidential. 280

Italy

Nevertheless, the lawyer is entitled to refuse to disclose confidential information on the basis of Article 200 of the Italian Code of Criminal Procedure. If the lawyer, after being released from the obligation of professional secrecy by the client, decides not to abstain, the lawyer cannot refuse to answer any questions and cannot therefore limit answers to certain circumstances only; at that point, in fact, the lawyer will no longer have the right to object on the basis of professional attorney–client privilege. As for information in reference to which the client may release the lawyer from the confidentiality obligation, it is important to distinguish between communications issued by the client to the lawyer and any other information that comes to be known by the lawyer in the course of the legal representation. In relation to the first kind of information, the lawyer may certainly be released by the client from the duty of professional secrecy, and therefore disclose the facts to third parties, as the communication of confidential information is clearly legal in these cases. 22. No waiver of the duty of professional secrecy of the lawyer exists with respect to that information which has been discovered by the lawyer during judicial activity: no authorisation issued by the client is able to release the lawyer from confidentiality obligations. Disclosure of those facts can in fact affect the client’s procedural circumstances, breaching, as a result, the regulation of the Deontological Code relating to the duty of ensuring the best defence for the client.

E

Law firms 23. Lawyers who work in a law firm tend to share privileged information. It is generally accepted that no restrictions apply to this type of sharing of information. When a client engages the services of a law firm, all the lawyers of the firm are deemed engaged. The firm can ask any of its lawyers to handle the case. The lawyer–client privilege applies to all information provided by the client to the lawyers of the firm, regardless of whether they are partners or associates. In all cases, they work on behalf of the firm. At present, the case law on professional associations has ruled that these professional associations do not become owners of the relationship of supply of work, which continues to exist only between the individual professional and the client, and that the liability for the performance of the service is strictly personal even if the individual is jointly liable with the professional association; accordingly, there is no joint liability among professionals of the same law firm for the fulfilment of the service or its execution.7 7 Court of Cassation, 29 November 2004, no 22404; Court of Milan, 31 July 2006, no 8569.

281

Professional secrecy of lawyers in Europe

24. The situation is different when lawyers work in a cost-sharing structure. In this case, the lawyers do not practise law jointly; they only share costs and office space. In this case, they need to keep separate files and a client of one lawyer is not a client of the others. The lawyer–client privilege is therefore limited to information shared with the lawyer who represents the client and does not extend to the other lawyers who belong to the cost-sharing structure.

F

Legal assistants and staff 25. Law firms employ secretaries and support staff who are not supposed to practise law and are not admitted to the Bar. Even though they are not lawyers, the information shared with these individuals is covered by the lawyer–client privilege. Italian lawyers work with trainees during the compulsory training period; trainees are not employees, are supposed to practise law and are bound by the above criteria regarding professional secrecy. In any event, according to the Deontological Code, the lawyer is obliged to require respect for professional secrecy of his/her collaborators and employees and of all persons who co-operate in carrying out his/her professional activity.

G

External service providers 26. More and more law firms are outsourcing services such as secretarial work, the review of documents written in a foreign language and even legal work such as due diligence or research. If any of these works are done by an outside lawyer, no difficulty should arise, and the duty of professional secrecy is extended to this lawyer. In any event, according to the Deontological Code, the lawyer is obliged to require respect for professional secrecy of his/her collaborators and employees and all persons who co-operate in carrying out his/her professional activity.

H

Multidisciplinary associations 27. The legal profession can be practised individually, or through participation in associations or partnerships. However, in these latter cases the professional assignment is still granted to a personal lawyer. The Law admits the establishment of multidisciplinary associations, provided that professionals other than lawyers belong to one of the specific categories identified by regulation of the minister of justice. The Law introduces the character of the discipline of the company among lawyers, referring to Legislative Decree 96/2001, which typifies a particular figure of the company of professional persons, modelled on the regulation of the general partnership but with some peculiarities due to the corporate purpose, which is the exercise not of business activity but of professional activity.

282

Italy

2

History 28. The duty of professional secrecy for lawyers (attorney–client privilege) is not a new concept. It was inserted in the Professional Law in 1933 and was specifically governed in the above-mentioned Italian Codes. In particular, as far as the main Italian Codes are concerned, the first Italian Civil Code was the Pisanelli Code (1865), but the currently applicable Civil Code is that approved by Royal Decree no 262 of 16 March 1942 (as amended). The Procedural Code was approved by Royal Decree no 1443 of 28 October 1940, entered into force on 21 April 1942 and was subsequently amended. The first Criminal Code was the Zanardelli Code (1889), but the currently applicable Criminal Code is that approved by Royal Decree no 1398 of 19 October 1930 (as amended). Finally, the Code of Criminal Procedure was amended several times, but the current Code is the fourth code (1865, 1913, 1930 and the last approved by Presidential Decree no 447 of 22 September 1988, as amended). In relation to the Deontological Code, the same was approved by the Consiglio Nazionale Forense on 17 April 1997 and then amended on 16 October 1999, 26 October 2002, 27 January 2006, 14 December 2006, 18 January 2007, 12 June 2008, 15 July 2011 and 16 December 2011. Furthermore, Law 675/96 Regarding the Treatment of Personal Data was amended by Legislative Decree 196/2003 (as amended). The CCBE Code of Conduct was adopted by the Consiglio Nazionale Forense on 17 April 2008.

3

Supervision

A

The bar associations 29. A lawyer who belongs to a bar association is an independent legal professional who is free to determine how best to defend his or her clients and protect their rights and interests. The law provides that lawyers should exercise their profession following the principles of integrity, honesty, dignity and decorum. Furthermore, the action of the lawyer must always be correct and fair. Lawyers are subject to the authority of the bar association, which oversees compliance with the Deontological Code. Bar authorities cannot direct or instruct lawyers in the handling of their cases and their authority is limited to the imposition of disciplinary sanctions if a lawyer breaches his or her ethical duties. If the bar association finds that a lawyer has violated the Deontological Code, disciplinary proceedings will be initiated before a disciplinary body (see below). Violation of attorney–client privilege will therefore result in the imposition of disciplinary sanctions. 283

Professional secrecy of lawyers in Europe

B

Courts 30. The courts have jurisdiction over both criminal proceedings relating to the conduct of lawyers and the appeal of disciplinary proceedings.

4

Sanctions

A

Proceedings and sanctions

a

Disciplinary proceedings and sanctions

31. The proceedings and sanctions have recently been amended by Law no 234/2012, which introduces different provisions in relation to such matters. Nonetheless, although the above-mentioned law entered into force on 2 February 2013, therefore becoming compulsory, some provisions are not immediately applicable. This is the case of the rules referring to proceedings and sanctions whose enforceability is subject to the adoption of regulations by the competent professional body; therefore, for this time, the disposition set forth under the previous professional law will apply. The disciplinary sanctions that can be applied to lawyers are principally five: warning, censure, suspension, cancellation from the register and disbarment. Warning and censure may be thought of as formal sanctions – i.e. they have no substantial effects on professional activity – while suspension, cancellation from the register or disbarment can be considered substantial sanctions – i.e. they impede for a certain time (or without time limits) professional activity. In particular:

r r r r r

A warning is a reminder about the misconduct and is the exhortation not to reiterate it; the warning is communicated by a letter of the president of the competent council of the competent professional order. Censure is a formal statement. It consists of a well-articulated warning. Suspension prevents exercise of the profession for a period not shorter than two months and not exceeding one year. Cancellation from the register inhibits professional activity for an unlimited time. It effectively results in the removal of the lawyer from professional activity. Disbarment has the same effects as cancellation. However, a disbarred lawyer may request new enrolment after five years; if disbarment results from a criminal sentence, the disbarred lawyer must be rehabilitated before a new enrolment, after five years, can be requested.

32. Disciplinary proceedings are divided into three phases, as follows: the disciplinary trial can start (i) on one’s own motion; (ii) at the request of any interested party or (iii) upon the request of the public prosecutor. 284

Italy

The complaint must be in writing. The proceedings are conducted in the language of the relevant lawyer association. Upon receipt of the facts the Bar Association Committee leads the investigation in order to assess the validity and relevance of the facts of the case and their competence to judge. 33. If a trial commences, the Bar Association Committee may take control of all measures to conduct the investigation, which is made upon notice to a person under investigation, signed by the president of the local Bar Association Committee, and which sets forth all charges. In order to respect cross-examination, the lawyer under investigation must be given an opportunity to be heard, is entitled to produce information and evidence in support of his or her defence, and can be assisted by a lawyer (without this lawyer being entitled to represent him or her). All the activities of the Bar Association Committee are to be recorded in minutes. At the end of the investigation, the Bar Association Committee must decide whether to dismiss the case or move forward to trial. Where the Bar Association Committee decides to move forward to trial, the president of the Bar Association Committee provides notice of the date of the hearing. 34. The competent bar association hears the case and requires the approval of a majority of the members of the Committee to be valid. At the end of the hearing (which is not public) the Committee may adopt a resolution upon approval of the majority. The following disciplinary sanctions can be imposed by the disciplinary body: (i) a warning, (ii) censure, (iii) suspension from the practice of law for a period of up to one year, (iv) cancellation from the register or (v) disbarment. Suspension and disbarment are communicated to all bar associations of the Italian Republic and the courts of the district to which the lawyer belongs. 35. Decisions of the competent bar association can be appealed to the National Bar Association Committee. An appeal can be filed – by the lawyer who was sanctioned or by the public prosecutor of the court of appeal – with the secretary of the competent bar association that adopted the appealed resolution within twenty days after the notification of the resolution. The lawyer can be assisted by a lawyer qualified to practise before the Supreme Court (Corte di Cassazione). The public prosecutor, the lawyer and the bar association that adopted the appealed resolution have to be present at the hearing (which is public). 36. The National Bar Association Committee’s resolution is an enforceable judgment which can, however, be appealed to the United Sections of the Supreme Court (Sezioni Unite della Corte di Cassazione) in the event a violation of law and/or excess of power occurred. 285

Professional secrecy of lawyers in Europe

b

Criminal proceedings and sanctions

37. Pursuant to Article 622 of the Criminal Code, whoever has notice, by reason of his/her profession, of a secret is punished if he/she reveals such notice without just cause. In particular, Article 622 of the Criminal Code provides, Anyone who has information, by reason of his/her status or office, or profession or art, concerning a secret and discloses such information, without just cause, or uses it for his/her own profit or that of others, shall be punished, if harm can result from the fact, with imprisonment up to one year or a fine ranging from €30 to €516. The sanction is aggravated if the offence is committed by directors, general managers, managers responsible for preparing corporate accounting documents, auditors or liquidators, or if it is committed by those who perform the audit of the company. The crime is punishable upon complaint of the victim. c

Civil proceedings and damages

38. Violation of attorney–client privilege is also a breach of contract with the client and damages may be awarded if the breach caused harm to the client. The client bears the burden of proof in this regard. The courts of first instance have jurisdiction over such proceedings, and appeal is possible to the courts of appeal and, finally, to the Supreme Court (on legal grounds only).

B

Relationship between criminal proceedings and disciplinary proceedings 39. As for the relationship between criminal proceedings and disciplinary proceedings, it should be noted that disciplinary proceedings are independent of criminal proceedings. Article 54 of the Professional Law provides that the disciplinary proceeding may be suspended if any information relating to the criminal proceeding is necessary.

5

Duty to provide information to the authorities

A

Money laundering and terrorism 40. EC/EU countries, in order to fight against money laundering, terrorism and organised crime, have adopted different directives – Directive 91/308/EC, Directive 2001/97/EC, Directive 2005/60/EC and Directive 2006/70/EC. The above-mentioned EU directives have been implemented in Italy through adoption of different legislative decrees. As of today, the main decree is Legislative Decree no 231 dated 21 November 2007, applicable to different professional figures, including lawyers.

286

Italy

41. As for lawyers, they are requested to identify clients (and to report to the authorities any transaction that the lawyer reasonably concludes to be aimed at infringing the law) when performing any transaction in the financial or realestate area (acts of representation) or when they assist their clients in preparing or executing operations (acts of service) relating to financial or real-property transactions having a certain value or relating to (i) the transfer of title to any property rights on real property or economic activities; (ii) managing money, securities or other properties; (iii) opening or managing bank accounts, savings accounts and securities accounts; (iv) organisation of contributions necessary for the creation, operation or management of companies, corporations, trusts or similar entities; (v) the creation, operation or management of companies, corporations, trusts or similar structures. Legislative Decree no 231 dated 21 November 2007 states that reports of suspicious transactions effected pursuant to and for the purposes of the law do not constitute breach of the obligations of confidentiality, professional secrecy or any restriction on disclosure of information imposed by contract or by applicable laws, regulations or administrative provisions and, when made for the purposes specified therein and in good faith, do not involve liability of any kind. Data and information regarding relationships with clients and transactions should be kept by the lawyer for a ten-year period. 42. It is interesting to note that, even before the issuance of specific law provisions, the Deontological Code of 26 October 2002 introduced new rules which essentially imposed upon lawyers a duty to identify clients and refuse professional services in case of suspicion of criminal activities.

6

Search of a lawyer’s office 43. Article 103 of the Italian Code of Criminal Procedure provides guarantees of freedom of the defender. In particular, inspections and searches in the offices of defence attorneys are allowed only (i) when the defendants or other persons who perform work permanently in the same office are accused, and only for the purpose of the crime attributed to them; (ii) to detect traces or other material effects of the crime or to search for things or people specifically predetermined. Furthermore, documents relating to the defence may not be seized from the offices of defence attorneys, authorised private investigators or agents in relation to the proceedings, nor from technical advisers, unless they constitute material evidence. 44. When judicial authorities prepare to perform an inspection, a search or a seizure in the office of a defender, they must notify the local bar association 287

Professional secrecy of lawyers in Europe

of the location in order that the president or a delegated member of the Bar board may attend. Similarly, if the Bar Association Committee intervenes and so requests, it may be given a copy of the measure. Inspections, searches and seizures at the offices of the defendants must be justified under consent decree of the court. All forms of seizure and control of communication between defendant and defence counsel as defined by law are banned, unless the court has reason to believe that they constitute the body of the crime.

7

Tapping of telephone conversations with a lawyer 45. Article 103, part 5, of the Italian Code of Criminal Procedure declares that it is not permitted to intercept conversations or communications of defence attorneys in relation to the proceedings, or technical advisers and their auxiliaries, or between them and the people they assist.

8

The lawyer as witness 46. A lawyer can be called to testify in court as a witness. Article 58 of the Deontological Code expressly states the possibility for lawyers and trainees to testify – even if, as far as possible, the lawyer (and trainee) should abstain from testifying on facts known due to his/her professional activity. In the event a lawyer decides to testify, he/she should waive the mandate and not accept it again. The above provisions (as well as Art. 249 of the Code of Civil Procedure, Art. 200 of the Code of Criminal Procedure and Art. 6 of the Professional Law) permit lawyers and trainees not to be obliged to testify, and therefore protect all information on a professional confidentiality basis. However, if the lawyer/trainee decides to testify the mandate should be immediately waived, as a lawyer cannot at the same time be defender and witness on the same facts known due to a professional activity.

9

The lawyer and the press 47. As for his/her relationship with the press (and in general with any means of communication), according to the ethical principle stated in Article 18 of the Deontological Code, the lawyer should be guided by criteria of balance and moderation. In particular, only with the consent of the client and in his/her exclusive interest can the lawyer provide to the media news that is not covered by the secrecy of investigation. Furthermore, it is permitted to hold press conferences, but without prejudice to the defence needs of the client.

288

Italy

The lawyer is allowed to participate in daily programmes on television or radio, but must adhere to balance and moderation.

10

Powers of the tax administration and other authorities 48. Under Italian law, it is generally accepted that, save that stated above, no authority is entitled to compel a lawyer to disclose information which is protected by attorney–client privilege.

11

State security service 49. The Italian state security service must respect lawyers’ professional secrecy in the following terms. In Italy the protection of the state internal security is granted by Law 124/2007, which grants to the president of the Council of Ministers the general power of co-ordinating information security. In particular, Law 124/2007 provides for the appointment of a Parliamentary Committee for Security of the Republic (Comitato parlamentare per la sicurezza della Repubblica) that, in carrying out its duties, may obtain all information and documents it deems relevant to national security notwithstanding the provisions of Article 329 of the Code of Criminal Procedure (i.e. the obligation of secrecy concerning the acts of investigation made by the public prosecutor and by the police). However, even if neither bank nor professional secrecy can be opposed to the Parliamentary Committee for Security of the Republic, the secrecy between lawyer and his/her trial client within the ambit of the relevant mandate can be opposed.

289

18 Latvia egils radzins Member of the Latvian Council of Sworn Advocates The Law Office of Sworn Advocates

Preliminary note 291 1 Scope of and limitations on professional secrecy 291 A Statutory basis and implications 291 B Scope 293 C Persons subject to the duty of professional secrecy 294 D Exceptions to and optional derogations from the duty of professional secrecy 295 a Exceptions 296 b Derogations 297 E Law firms 298 F Legal assistants and staff 299 G External service providers 299 H Multidisciplinary associations 300 2 History 300 3 Supervision 301 A The bar associations 301 B The courts 301 4 Sanctions 302 A Proceedings and sanctions 302 a Disciplinary proceedings and sanctions 302 b Criminal proceedings and sanctions 303 c Civil proceedings and damages 303 B Relationship between criminal sanctions and disciplinary sanctions 304 5 Duty to provide information to the authorities 304 A Money laundering and terrorism 304 B Collective settlement of debts 306 6 Treatment of a lawyer’s documents and correspondence in the context of judicial investigations 306 7 Search of a lawyer’s office 307 8 Tapping of telephone conversations with a lawyer 307 9 The lawyer as witness 308 10 The lawyer and the press 309

290

Latvia

11 Powers of the tax administration and other authorities 12 State security service 309

309

Preliminary note 1. In Latvia, lawyers who are admitted to the Bar are subject to the duty of professional secrecy. As stated by the Law on the Bar, persons who may work as advocates in Latvia are sworn advocates, assistants of sworn advocates and citizens of European Union Member States who have obtained the qualification of an advocate in one of the European Union Member States. It should be noted that lawyers who work for a company, the state or a public organisation are not members of the Bar. This chapter focuses on the duty of professional secrecy of lawyers who belong to the Bar. Unless indicated otherwise, for the purposes of this chapter, the term ‘lawyer’ refers to a member of the Bar. The duty of professional secrecy is mainly based on the principle of confidentiality. Lawyers shall be independent and shall be subject only to the law in their professional activities. They must comply with the laws, as well as with the Code of Ethics of the Latvian Sworn Advocates, which states lawyers’ principles of ethics, and confidentiality is one of three basic principles. This principle must be respected in order to ensure the person’s right to a fair trial. Lawyers shall practise a liberal profession and they belong to the national judicial system of Latvia. In this regard, a lawyer cannot be a person who is employed in a direct or indirect state administrative institution, derived public person, other state institution or state (local) government capital company, except for teaching staff in educational establishments. The Latvian Council of Sworn Advocates is the managerial, controlling and executive body of the Bar, which consists of sworn advocates. In Latvia, there are five judicial regions. When admitting a sworn advocate, the Latvian Council of Sworn Advocates shall determine in which regional court these sworn advocates shall work and in the territory of operation of which court these sworn advocates shall practise. The Latvian Council of Sworn Advocates determines the minimum number of sworn advocates in each region in order to provide sufficient legal aid. Clients are entitled to freely choose an advocate to defend or represent their interests, as well as to meet the advocate without any restrictions or disturbances.

1

Scope of and limitations on professional secrecy

A

Statutory basis and implications 2. There is no specific statutory basis in Latvia for the implications of the breach of lawyers’ professional secrecy. But there are general principles defined by law which establish lawyers’ obligation to respect professional secrecy. For 291

Professional secrecy of lawyers in Europe

example, Article 67 of the Law on the Bar establishes that the lawyer may not divulge the secrets of his or her client not only while handling the case, but also after being taken off the case or after the case has been completed. The lawyer shall ensure that these requirements are also followed by his or her personnel. A similar obligation is also established in Article 1(3) of the Latvian Bar Association Code of Ethics, which imposes a duty to provide confidentiality among lawyer and client, as well as other lawyers, during an exchange of written or oral information, if it is related to the provision of legal aid. Among other things, Article 45(3) of the Latvian Administrative Violations Code imposes a duty of professional secrecy on doctors and other medical professionals but such sanctions are not intended for lawyers. Article 122 of the Criminal Procedure Law regulates lawyers’ immunity, which prevents the courts and investigation authorities from requiring confidential information from a lawyer about the client. For its part, Article 122, seventh part, of the Criminal Procedure Law states that a defence counsel is not entitled to disclose information regarding what has been made known to him or her in connection with the performance of defence without the consent of the defendant. It is a lawyer’s professional secrecy, which must be respected. 3. With the development of society, the offences become more complicated. Consequently, law-enforcement institutions are interested in communication with lawyers in order to disclose necessary information and reduce crime. There are some European Union directives which obligate a lawyer to co-operate with law-enforcement institutions. In Latvian legislation these obligations are enforced in the Law on the Prevention of Money Laundering and Terrorism Financing, which came into force on 13 August 2008. Accordingly, in Latvia as in other countries the duty of professional secrecy is increasingly restricted. 4. The duty of professional secrecy is intended to protect the client, therefore professional secrecy is not only a lawyer’s obligation, but a person’s right also. In this context, the Law on the Bar states that all detained, arrested, imprisoned or convicted persons shall be provided with the possibility, the time and the resources, without delay, interference or censorship and in complete confidentiality, to meet privately or have contact with a lawyer in order to receive legal assistance (Art. 8 Law on the Bar). The question is whether the advice provided by the lawyer to his or her client is considered a professional secret. It is expected that only the information provided by the client is protected by professional secrecy, because the lawyer’s advice must be given in accordance with the laws and shall not be unlawful. In short, the client’s information is confidential, but the lawyer’s advice is not confidential. 5. As the regulation of professional secrecy in Latvia states only general principles, an obligation to keep confidential information provided by the client is implied in the contract between client and lawyer. In such cases, 292

Latvia

disclosing information without the client’s consent constitutes a breach of contract. Although the lawyer–client relationship is formed by conclusion of an agreement, the lawyer’s duty of confidentiality also applies to cases where the lawyer has not yet entered into certain proceedings, but has only heard the potential client’s laying out of the situation. 6. A general principle in criminal procedure states that a lawyer has no obligation to co-operate with the investigating authorities, the court or public prosecutors, because the articles of the Criminal Procedure Act, which provides lawyer’s immunity, prevail over the Criminal Law, which states criminal liability for the failure to provide information required by national authorities and intentional failure to present evidence. In this case, the lawyer cannot be held liable in criminal proceedings. Although the Code of Civil Procedure does not regulate the procedure for implementation of the principle of professional confidentiality, in civil procedure this principle should be respected according to the Law on the Bar. On this score, in the event of a breach of professional secrecy disciplinary sanctions can be imposed and the client can claim damages for any harm suffered.

B

Scope 7. Professional secrecy covers all information, whether written or oral, provided by the client to his or her lawyer in order to prepare for litigation relating to the client’s rights and obligations or in the course of soliciting advice regarding the client’s legal rights and obligations, as well as all information which comes to the lawyer’s attention in this context, including information provided by the opposing party or a third party. In general, it is accepted that the duty of professional secrecy covers all information provided to the lawyer in order to enable the defence of his or her client in court. The lawyer’s obligation of confidentiality serves the interest of the administration of justice as well as the interest of the client. Clients’ information confidentiality applies among lawyer and clients, as well as among other lawyers, during the exchange of written or oral information, if it is related to the provision of legal aid (see no 2 of this chapter). 8. The Code of Ethics of the Latvian Sworn Advocates states that the lawyer may not disclose information given to him or her during the course of legal consultation. This means that the duty of professional secrecy is limited to information obtained in the practice of law and that any information gleaned outside the course of legal consultation is thus not protected. However, in Latvia there is no case law confirming this position. 9. In general, information whether written or oral between a client and his or her lawyer is covered by the duty of professional secrecy and thus privileged. The duty of professional secrecy covers any information the lawyer receives 293

Professional secrecy of lawyers in Europe

in providing legal assistance from a client as well as any information received from any third party. Furthermore, it also applies to the lawyer’s assistants and support staff. In sum, it should be remembered that the duty of confidentiality is not limited in time.

C

Persons subject to the duty of professional secrecy 10. It is clear that lawyers who are admitted to the Bar are subject to a duty of professional secrecy, ensuring that confidentiality is respected from the side of lawyers’ assistants and support staff. The duty of professional secrecy is mainly based on the principle of confidentiality, which in Latvia is stated in the Code of Ethics of the Latvian Sworn Advocates. Any breach of the duty of professional secrecy constitutes a violation of the ethical rules and will result in the imposition of disciplinary sanctions (see no 26 below). A different situation arises if the lawyer is an in-house lawyer who works on a contract basis. The Court of Justice of the European Union (CJEU) in a judgment against Akzo Nobel Chemicals (Akzo) Groups has made it clear that lawyer–client privilege does not apply to correspondence between a company and its lawyer, even if the lawyer is a member of the Bar. The CJEU indicated that the lawyer–client privilege is protected at European Union level; however, protection depends on fulfilment of two co-existing conditions: communication involves implementation of the ‘client’s right to defence’ and lawyers must be independent, namely between lawyer and client there cannot exist a relationship of employment. In that case, the CJEU concluded that an in-house lawyer, who is economically dependent and has a close relationship with the employer, cannot be professionally independent.1 It follows that a lawyer may not be subjected to the duty of professional secrecy and there are no privileges to being an in-house lawyer in the European Union. Professional secrecy must be respected by the court, the public prosecutor’s office, investigating authorities and any party to the proceedings. Nevertheless, any information disclosed by someone who is subject to the attorney–client privilege may not be relied upon in order to determine the rights and obligations of the party benefiting from this privilege, because in any case it does not protect persons involved in illegal activities. 11. Professional secrecy is not only in the interest of the client but also of society as a whole, because a lawyer is a person who belongs to the judicial system. Article 3 of the Law on the Bar establishes that a lawyer provides legal assistance by defending and representing the lawful interests of persons. In this regard there is the controversial question whether a client can give permission to a lawyer to disclose professional secrets. On the one hand, it is the client’s free will, which 1 Court of Justice of the European Union, 14 September 2010, Akzo Nobel Chemicals and Akros Chemicals v. European Commission, C-550/07 P.

294

Latvia

could be regarded as appropriate to his or her interests. On the other hand, the lawyer should be aware that disclosure of professional secrets would harm the client’s interests which are protected by law, even if the client does not realise it. In this regard, by taking on a client’s representation a lawyer at the same time assumes the obligation of confidentiality. This ensures that the client will only disclose information which is necessary for his or her defence. It follows that a lawyer should not disclose professional secrets, in spite of the fact that the client has given permission to the lawyer to do so. The prohibition of harming the interests of defended or represented parties must be understood to be a prohibition of harming his or her legitimate interests. If the lawyer, then, acts unlawfully in the interest of the client or according to the client’s request, the lawyer may be held liable for participation in a particular offence, because in any case professional secrecy cannot condone a lawyer’s illegal activities. Unfortunately, in Latvia there is no detailed case law about this.

D

Exceptions to and optional derogations from the duty of professional secrecy 12. The attorney–client privilege is subject to a number of exceptions and derogations. If an exception applies, the lawyer is obliged to disclose the information that falls under the exception. In the event of derogation, the lawyer can decide whether to disclose the information in question. In Latvia there are two exceptions from the duty of professional secrecy which are governed by law. First, the lawyer has a duty to report money laundering and financing of terrorism. The second exception is that in some cases the lawyer must report crimes in order to comply with obligations which are stated in the Criminal Law of Latvia. In cases of derogation, when the lawyer can decide whether or not to disclose information, the law makes no provision. Some are of the opinion that in some cases, having regard to protected interests, the lawyer has the right to report the preparation of less serious crime or even a criminal violation. Such a right arises from a lawyer’s legal personality as the lawyer belongs to the judicial system. Of course, these exceptions and derogations must not be interpreted broadly and applied improperly as they constitute limitations on due process and the right to a fair trial. Information so disclosed may be used against the client in court. In this regard, too broad an interpretation would violate fundamental rights as the principle of confidentiality warrants observance of human rights – a person’s right to a fair trial and to legal aid. The European Court of Human Rights, in Niemietz v. Germany, has indicated that a derogation of lawyers’ professional secrecy may have an impact on further proceedings and therefore on the rights guaranteed by Article 6 of the European Convention on Human Rights.2 2 European Court of Human Rights, 16 December 1992, Niemietz v. Germany, 71.

295

Professional secrecy of lawyers in Europe

a

Exceptions

13. It is generally accepted that a lawyer must disclose privileged information when the life or health of a person is in jeopardy. In Latvia the Criminal Procedure Law provides that when it is known for sure that a serious or especially serious crime is being prepared or committed, and a person fails to report that, that person is held criminally liable (Article 315 Criminal Procedure Law). In connection with lawyers, this rule must be restricted because the lawyer’s duty of professional secrecy (Article 122 Criminal Procedure Law) prohibits a lawyer from disclosing information about crimes his or her client has committed, so the lawyer has a duty to report only such crimes as are being prepared. In this respect, the lawyer must be sure, or have reasonable cause to believe, that a serious or especially serious crime is being prepared in order to set aside the duty of professional secrecy. It follows that violation of the principle of confidentiality may be justified if it avoids harm to society as a whole. In Latvia the prevention of money laundering and the financing of terrorism prevails over the duty of professional secrecy, thereby establishing the lawyer’s obligation to disclose information received from clients when the lawyer knows or there is a well-founded reason to believe that a client is involved in money laundering and in financing terrorism. In general, the Law on the Prevention of Money Laundering and Terrorism Financing states that the lawyer has a duty to immediately notify the Control Service of any unusual or suspicious transactions (see no 31 of this chapter). 14. Lawyers are not allowed to make a pretext of professional secrecy in order to cover up a crime they have committed. The Criminal Procedure Law states that unlawful activity by a lawyer performed in the interests of a client in providing legal assistance in any form, as well as activity for the promotion of the offence of a client, shall not be recognised as provision of legal assistance (Article 122, second part, Criminal Procedure Law). Therefore, if the lawyer acts unlawfully in the interests of the client, the lawyer may be held liable for participation in a particular criminal offence. This means that in any case professional secrecy does not protect a lawyer’s illegal activities. 15. In general, when examining a disciplinary matter, the Disciplinary Proceedings Commission shall invite a lawyer to provide an oral explanation (Art. 78 Law on the Bar). Lawyers should be truthful to the Bar authorities but the Law on the Bar does not state the obligation to disclose all information requested, including privileged information. In this regard, the Disciplinary Proceedings Commission has the right also to listen to the explanations of other persons, to request the opinions of experts and to request information and documents from state and local government institutions, as well as from other institutions, organisations and companies (undertakings) and the officials thereof (Art. 80 Law on the Bar). 296

Latvia

In matters of the prevention of money laundering and the financing of terrorism, the Latvian Council of Sworn Advocates has the right to visit the premises owned or used by lawyers and relating to their professional activities, and to conduct on-site inspections at such premises. Furthermore, the Council has the right to request information and original documents from lawyers, to examine them and to receive relevant explanations, as well as to perform activities for the prevention or reduction of the possibility of money laundering and financing of terrorism (Art. 47 Law on the Prevention of Money Laundering and Terrorism Financing). 16. In the event of a liability action brought by a client against his or her lawyer, the parties may disclose privileged information only for the purpose of assessing the merits of the claim. This follows from the lawyer’s right to a fair trial. Such proceedings must be kept separate from any other proceedings to which the client is a party in order to avoid the privileged information being used for purposes other than determining whether the lawyer is in breach of contract. Furthermore, the lawyer should only produce information to the extent necessary to defend him- or herself against the claim. This follows from the adversarial principle, because, in civil procedure, parties exercise their procedural rights by way of adversarial proceedings. This is one of the main principles of the civil procedure. Adversarial proceedings take place through the parties providing explanations; submitting evidence and applications addressed to the court; participating in the examination of witnesses and experts, in the examination and assessment of other evidence and in court argument; and performing other procedural actions (Art. 10 Civil Procedure Law). Although in Latvia hearings are usually held openly, except for some cases, in this regard the hearing should be held closed. Notwithstanding the above statements, case law in Latvia on this issue has not developed. b

Derogations

17. If the lawyer has gained confidence that the client is going to commit an offence and there is no regulation in the law which obligates disclosure of information, the lawyer can decide whether to disclose the information. In Latvia the Criminal Procedure Law provides only the obligation to report when it is known for sure that a serious or especially serious crime is being prepared or committed. Nevertheless, most of the offences included in the Criminal Code of Latvia are misdemeanours or less serious crimes, for example some offences under the heading ‘criminal offences against family and children’. In the cases when the principle of children’s rights competes with the principle of confidentiality, it is likely that the principle of children’s rights will prevail over the principle of confidentiality.3 3 Irena Nesterova, ‘Advok¯ata profesion¯alais nosl¯epums un pien¯akums zin¸ot par likump¯ark¯apumu’, Jurista v¯ards 2009, 1, 554.

297

Professional secrecy of lawyers in Europe

As the principle of confidentiality not only protects lawyer–client relations but also guarantees the loyalty of society to the entire Bar as a whole, it is important to evaluate each individual case and determine whether the damage prevented by reporting a crime will be greater than the damage that would be incurred to the customer and to society as a whole. Therefore the lawyer should evaluate each case separately.4 In such cases, first of all, the lawyer must try to prevent a client from committing the crime and explain the legal implications that there might be for the client’s actions. If, after that, the lawyer still believes that the client is going to commit an offence, he or she may be required or permitted to report it to law-enforcement institutions. Moreover, if the lawyer reports that the client is going to commit an offence, the lawyer will act not only in the interest of society but also in the interest of his own client, because if the crime is incomplete then the punishment will be less strict.5 18. In their professional activities lawyers shall be independent and shall only be subject to the law. The Law on the Bar provides that state and local government institutions, courts, prosecutors and preliminary investigation establishments shall respect this. Therefore, in general, it shall be prohibited to request from advocates information and explanations, as well as to interrogate them as witnesses on facts which have become known to them in providing legal assistance (Art. 6 Law on the Bar). This type of prohibition, which provides the lawyer’s immunity, is contained in the Criminal Procedure Law. It shall not be permitted to examine a lawyer as a witness regarding facts that have become known to him or her in providing legal assistance in any form (Art. 122 Criminal Procedure Law).

E

Law firms 19. In Latvia, sworn advocates practise individually or in co-operation with other lawyers. They may create offices of sworn advocates, which are registered by the Latvian Council of Sworn Advocates (Art. 116 Law on the Bar). It should be emphasised that only a sworn advocate or a number of sworn advocates may create these offices, and assistants of sworn advocates cannot be the founders of such offices. The Latvian Council of Sworn Advocates has established that providing legal services as a business is incompatible with the lawyer’s position in society and therefore a person engaged in such activities cannot be a lawyer.6 4 Ibid., 554. 5 Ibid., 554. 6 Latvijas Zv¯erin¯atu advok¯atu padome. Dokumenti par advokat¯uras jaut¯ajumiem. Ties´bu akti par advokat¯uras darb´bas organiz¯aciju un advok¯atu darb´bu. Latvijas Zv¯erin¯atu advok¯atu kopsapulces un padomes 1993.-2011.gad¯a pien¸emtie l¯emumi. Padomes 2000.gada 12.septembra l¯emums Nr.226, Tiesu namu a´gent¯ura, Riga, 2011, 217.

298

Latvia

In this regard, Latvian lawyers are not permitted to provide legal services commercially because a business is aimed at gaining profit. The law provides that the professional activity (practice) of lawyers is intellectual work and shall not be aimed at gaining profit (Art. 107 Law on the Bar). Lawyers who practise in offices tend to share privileged information in order to provide high-quality legal assistance jointly to the client. In Latvia it is generally accepted that no restrictions apply to this type of sharing of information. When a client engages the services of a lawyer who practises in an office, all the lawyers of the office are deemed engaged. The obligation of professional secrecy applies to all information provided by the client to the lawyers of the office, regardless of whether they are partners. In all cases, they work on behalf of the office.

F

Legal assistants and staff 20. In Latvia, on the basis of an employment contract, lawyers may employ technical, managerial or advisory personnel for whose activity the lawyer shall be responsible and who shall be forbidden to be involved in providing legal assistance (Art. 118 Law on the Bar). Even though they are not lawyers, information is shared with these individuals because they participate in the provision of law services. In Latvia no restrictions are applied to this type of sharing of information. Nevertheless, it is important that lawyers are subject to a duty of professional secrecy, ensuring that confidentiality is respected from the lawyer’s assistants and support staff. If the lawyer does not ensure the confidentiality on the part of legal assistants and support staff, the lawyer will be responsible for breach of confidentiality. Currently in Latvian law offices for legal services there may also be employed lawyers who are neither sworn advocates nor assistants of sworn advocates. The opinion has been voiced that these lawyers who are neither sworn advocates nor assistants of sworn advocates should not be employed in such law offices, mainly because they do not have the legislated duty of professional secrecy. At the moment, the lawyers who employ them take this responsibility. However, such a view is not really justified, because these lawyers may be considered support staff who also collaborate in service provision, and the lawyer must ensure that full confidentiality will be respected.

G

External service providers 21. Usually, lawyers who practise in offices outsource different services – for instance, notary and translation services. Sometimes other lawyers are involved. If such work is done by an outside lawyer or sworn notary, no difficulty should arise, and the duty of professional secrecy extends to this lawyer or sworn notary. The situation is more complicated with regard to the translator’s duty of confidentiality. In Latvia there is no legal base to a translator’s 299

Professional secrecy of lawyers in Europe

professional activity. Latvian laws govern the translator’s professional activity only in cases where it is associated with various procedural actions. This notwithstanding, usually the contract states the translator’s obligation to keep information confidential; this duty is not established by law. In such cases, if there is a need for a translator’s services and the lawyer’s office has no translator who provides such services, then the parties must agree on a translator’s services. By amicable agreement the client may give the lawyer a commission to use the services of a certain translator or agree that the client provides the services of the translator. In general, when confidential documents are sent outside the firm to nonlawyers, the duty of professional secrecy continues to apply. These persons work on behalf of the firm within the limits of their particular assignment. If the confidential information inadvertently comes into the hands of a third party, the court may not allow this information to be presented as evidence.

H

Multidisciplinary associations 22. If the client agrees, a lawyer is entitled to co-operate, on a specific matter, with a professional who is not a lawyer, provided the lawyer ensures respect for professional secrecy. Information can be also shared with the non-lawyer but only with the client’s consent and to the extent necessary to safeguard the client’s interests. This is most common when there is need for a particular expert’s opinion; for example, cases of construction might require a construction expert’s opinion. In Latvia, lawyers can practise in co-operation only with other lawyers and cannot professionally co-operate to provide legal services with non-lawyers (see no 19 of this chapter). In any event, privileged information shared by lawyers with non-lawyers in order to prepare the client’s case should remain protected by the duty of professional secrecy. However, in Latvia there is no case law confirming this position.

2

History 23. Before the Republic of Latvia was established on 18 November 1918, on Latvian territory an organised Bar was working on the basis of the Russian Empire Act of 20 November 1864, which formed the Latvian tradition and ethical grounds of advocacy.7 In Latvia, lawyers’ ethics in a modern sense, including the lawyer’s obligation of professional secrecy or the principle of confidentiality, came into ¯ Dzirkalis and A. Auzil’ˇs (eds.), 7 Voldem¯ars Minkeviˇcs, ‘Advokat¯uras e¯ tika’, in J. Ankravs, A. ‘Darbam un ties´b¯am’: Latvijas Sen¯ata Apvienot¯as Sapulces priekˇss¯ed¯et¯ajam Aleksandram Gubenim velt´ts rakstu kr¯ajums, Riga: Latvijas Krimin¯alties´bu biedr´bas izdevums, 1939, 46.

300

Latvia

existence with the emergence of the Bar, which has existed since 19 March 1921. The Bar of Latvia has mostly taken over ethical principles from the Russian Bar – the St Petersburg Bar Council and the Judicial Panel to which the Bar of the Baltic provinces was then subjected. In 1940 the Union of Soviet Socialist Republics illegally stopped Latvian Bar activities and development, and as a result the Latvian SSR Bar was established. The Latvian Bar was restored on 21 May 1993, when the Law on the Bar of 27 April 1993 entered into force. It follows that the obligation of professional secrecy in a modern sense was restored in 1993.

3

Supervision

A

The bar associations 24. A lawyer is an independent and professional person who provides legal assistance defending and representing the lawful interests of other persons in court proceedings and preliminary investigations, who gives legal advice, who prepares legal documents and who performs other legal actions (Art. 3 Law on the Bar). In their professional activities lawyers shall be independent and shall only be subject to law (Art. 6 Law on the Bar). The Latvian Council of Sworn Advocates is the controlling body of the Latvian Collegium of Sworn Advocates. Lawyers are subject to the authority of the bar association, which, through the Latvian Council of Sworn Advocates, oversees the activity of lawyers and assistants of lawyers, reviews complaints and information submitted with them, and initiates disciplinary proceedings (Art. 34 Law on the Bar). In this way it ensures compliance with the Code of Ethics of the legal profession. The Bar authorities cannot direct or instruct lawyers in the handling of their cases. Their authority is limited to the imposition of disciplinary sanctions if a lawyer breaches his or her ethical duties and other lawyerly duties provided by law. If the Latvian Council of Sworn Advocates finds that a lawyer has violated the Code of Ethics or other laws, disciplinary proceedings will be initiated and materials will be sent to the Disciplinary Commission. The Latvian Council of Sworn Advocates may also send verification materials to the Ethics Commission without initiating disciplinary proceedings. Professional secrecy is an ethical duty, the violation of which will result in the imposition of disciplinary sanctions (see no 26 of this chapter).

B

The courts 25. Lawyers must, of course, abide by the law. The civil courts have jurisdiction to hear any claim for professional liability brought against a lawyer by a client. The criminal courts have jurisdiction over crimes committed by lawyers 301

Professional secrecy of lawyers in Europe

in the exercise of their profession. No special rules apply in this respect to lawyers.

4

Sanctions

A

Proceedings and sanctions

a

Disciplinary proceedings and sanctions

26. In the event of a violation of the disciplinary rules, of the Statute of the Latvian Collegium of Sworn Advocates, and of the instructions which provide for the professional activities of lawyers, the Latvian Council of Sworn Advocates may take disciplinary proceedings upon the recommendation of the court or the prosecutor, as well as upon complaints from persons or upon its own initiative (Art. 71 Law on the Bar). All materials in the case are sent to the Disciplinary Commission because disciplinary cases involving lawyers are reviewed by the Disciplinary Commission (Art. 38(1) Law on the Bar). However, not all cases of violations are subject to disciplinary proceedings. The Latvian Council of Sworn Advocates has the right to explain to lawyers the impropriety of their actions without taking disciplinary proceedings (Art. 71 Law on the Bar). The Disciplinary Commission may make a decision to impose disciplinary punishment upon a lawyer or to dismiss the disciplinary proceedings (Art. 712 Law on the Bar). The Disciplinary Commission has the right to impose the following disciplinary sanctions: (i) to give a warning, (ii) to give a reprimand, (iii) to designate another location for practice or to prohibit from practising law in a specific location for a period up to three years, (iv) to prohibit from carrying out the duties of an advocate for no longer than a year and (v) to disbar from the list of sworn advocates. Whereas a disciplinary punishment – disbarring from the list of sworn advocates – is the most severe, it can be imposed only in certain cases stated by the law, i.e. for a serious offence against norms. As stated by the law, based on the Disciplinary Commission’s decision, it is the Latvian Council of Sworn Advocates that shall disbar a person from the list of sworn advocates (Art. 73 Law on the Bar). Practice, however, is otherwise and courts consider that the Disciplinary Commission’s decision is only interlocutory and that the Latvian Council of Sworn Advocates must make the final decicion about the lawyer’s disbarment from the list of sworn advocates. Reviewing a disciplinary case, the Disciplinary Commission invites a lawyer to give a verbal explanation (Art. 78 Law on the Bar). A request from the Commission to a lawyer to provide a written explanation is a prerequisite for the application of disciplinary sanctions. If the Commission has not performed this duty, there is no legal basis for the penalty. If the lawyer does not give an explanation in a time period set by the Disciplinary Commission or does not 302

Latvia

arrive at the meeting of the Commission without legitimate reasons, the Commission will make a decision based on circumstances discovered in the case and available information (Art. 79 Law on the Bar). The Disciplinary Commission, upon revising a disciplinary case, has the right to listen to explanations of other persons and to request the opinions of experts, and to require information and documents from state and local governmental institutions as well as from other institutions, organisations and enterprises and their officers (Art. 80 Law on the Bar). 27. Disciplinarily punished persons may appeal against the decisions of the Disciplinary Commission in court in the procedure prescribed by the Administrative Procedure Law (Art. 81 Law on the Bar). In this context, there are a number of uncertainties. If a lawyer may appeal the Commission decisions in court in the procedure prescribed by the Administrative Procedure Law, it should be clear that the Bar Council is an institution and its decisions are administrative acts of public administration, while the lawyer is an officer or official. However, such a conclusion would be completely contrary to the nature of advocacy.8 Consequently, there is an opinion about the necessity of amending rules which provide the procedure for appealing a decision. b

Criminal proceedings and sanctions

28. Theoretically, in Latvia it is possible to take criminal proceedings about violation of the principle of confidentiality. The Criminal Law provides that, if a person commits disclosure of non-disclosable information which is not an official secret, and if the person is not a state official and is, in accordance with the law, liable for the storage of information, the applicable punishment is custodial arrest or community service, or a fine not exceeding fifty times the minimum monthly wage (Art. 200 Criminal Law). Notwithstanding the above, in practice, criminal sanctions for violation of the lawyer’s duty of professional secrecy are usually not applied. For such a violation normally disciplinary sanctions are applied. c

Civil proceedings and damages

29. If a lawyer has permitted an infringement of the rights of a client and the consequences thereof are some kind of damage, the client has the right to request satisfaction from the lawyer, in so far as he or she may be at fault for such an infringement (Art. 110 Law on the Bar). Violation of the lawyer’s duty of professional secrecy is usually a breach of the contract with the client and damages may be awarded if the breach has 8 Gvido Zemribo, ‘K¯ads ir zv¯erin¯ata advok¯ata statuss. Tiesu sist¯emai pieder´ga amatpersona vai br´v¯a profesija’, Jurista v¯ards 2011, 19, 666.

303

Professional secrecy of lawyers in Europe

caused harm to the client. It is also not excluded that it may be a non-contractual breach (tort), for example in cases where a breach of the lawyer’s professional secrecy has occurred with regard to information which the customer provided to a lawyer before signing the contract. The client bears the burden of proof in this regard. The main preconditions for liability must be proved – the breach of rights, the damage and the causal link between the breach of the rights and damage. In Latvia, such civil proceedings are realised according to a general order. The courts of first instance have jurisdiction; appeal is possible to the courts of appeal and, finally, to the Supreme Court.

B

Relationship between criminal sanctions and disciplinary sanctions 30. Disciplinary and criminal sanctions must be imposed independently because they have no effect on each other. However, in Latvia, as was mentioned before, in practice criminal sanctions for violation of the lawyer’s professional secrecy are not applied (see no 28 of this chapter). The imposition of both criminal and disciplinary sanctions on the basis of the same facts would not violate the general principle of the prohibition of double punishment, as the sanctions would be imposed for the violation of different rules. Furthermore, disciplinary sanctions are applied for violation of lawyers’ ethical rules, but criminal sanctions are applied for a violation which injures the interests of society as a whole.

5

Duty to provide information to the authorities

A

Money laundering and terrorism 31. In Latvian legislation the requirements concerning money laundering and terrorism are included in the Law on the Prevention of Money Laundering and Terrorism Financing, which is relatively new and came into force only on 13 August 2008. This legislation also applies to lawyers (including sworn notaries and other independent providers of legal services) when they, acting on behalf of and for their customer, assist in the planning or execution of transactions, participate therein or carry out other professional activities relating to transactions for their customer concerning the following: (i) buying and selling immovable property or shares in a commercial company; (ii) managing the customer’s money, financial instruments and other funds; (iii) opening or managing accounts of all kinds in credit institutions or financial institutions; and (iv) creating, operating or managing legal arrangements, as well as organising contributions necessary for the creation, operation or management of a legal arrangement (Art. 3 Law on the Prevention of Money Laundering and Terrorism Financing). First the lawyer must identify the customer seeking advice on any of the above matters before providing assistance. In some cases,

304

Latvia

the lawyer must also identify the customer prior to performing an individual transaction. After identifying the customer, the risk of money laundering and financing terrorism should be evaluated in order to determine whether customer due diligence should be applied. In some cases prescribed by law the lawyer is entitled not to apply customer due diligence, if the services comply with certain requirements. However, if it is necessary to apply customer due diligence, then, depending on the assessed risk of money laundering and of financing terrorism, the law imposes an obligation to carry out either enhanced or simplified customer due diligence. In order to comply with all these requirements, the lawyer is entitled to request and the customers have an obligation to provide information and documents which are necessary for customer due diligence. Lawyers have an obligation to notify the Control Service without delay regarding each unusual and/or suspicious transaction and to provide the Control Service with the necessary information and documents upon receipt of a written request, except in cases when they defend or represent customers in pre-trial criminal proceedings or judicial proceedings or when they advise on instituting or avoiding judicial proceedings. Furthermore, in general, the Control Service has no right to disclose the data of such persons who have provided information on unusual or suspicious transactions (Art. 30 Law on the Prevention of Money Laundering and Terrorism Financing). In general, except for the supervisory and control authorities, persons are prohibited from notifying a customer and other persons regarding the fact that the data concerning the customer or the transactions thereof have been provided to the Control Service, although there are some exceptions for lawyers (Art. 38 Law on the Prevention of Money Laundering and Terrorism Financing). As regards lawyer responsibility, if the lawyer complies with the requirements of law, the actions thereof may not qualify as a violation of the norms regulating professional activity or the requirements of the supervisory and control authorities. If the lawyer has reported in good faith to the Control Service in compliance with the requirements of the law or has restrained a customer from involvement in criminal offences, there shall not be deemed to have been disclosure of confidential information, and therefore the lawyer shall not be subject to legal and also civil liability (Art. 40 Law on the Prevention of Money Laundering and Terrorism Financing). Persons may appeal the orders issued by the Control Service to a specially authorised prosecutor. The decision of a specially authorised prosecutor may be appealed to the General Prosecutor, whose decision shall be final (Art. 34 Law on the Prevention of Money Laundering and Terrorism Financing). Supervision and control of the compliance of lawyers with the requirements of the Law on the Prevention of Money Laundering and Terrorism Financing 305

Professional secrecy of lawyers in Europe

shall be carried out by the Latvian Council of Sworn Advocates. For its part, the State Revenue Office shall supervise independent providers of legal services who are not sworn advocates (Art. 45 Law on the Prevention of Money Laundering and Terrorism Financing). It should be noted that the European Court of Justice concluded the following: lawyers’ obligation to co-operate with the authorities for the prevention of money laundering, performing certain types of financial activity which are not related to the proceedings, does not violate the right to a fair trial fixed in Article 6 of the European Convention on Human Rights.9

B

Collective settlement of debts 32. In Latvia there is no specific legislation concerning the collective settlement of debts. The Latvian Insolvency Act provides various other procedures relating to the debtor’s financial situation. In general, information about these procedures should be accessible to all persons involved in the process, in order to ensure reliability. The exception is information unlimited disclosure of which would harm the debtor’s or the creditor’s legitimate interests. In this case professional confidentiality prevails and should not be set aside solely in order to obtain complete information about the debtor’s assets. However, in Latvia there is no case law confirming this position.

6

Treatment of a lawyer’s documents and correspondence in the context of judicial investigations 33. Lawyers shall be independent and subject only to the law in their professional activities. It follows that it is prohibited for institutions, courts and prosecutors to control postal and telegraph correspondence and documents which lawyers have received or prepared in providing legal assistance, or to examine or confiscate them, as well as to execute a search in order to find and confiscate such correspondence and documents (Art. 6 Law on the Bar). The Criminal Law sanctions violation of the confidentiality of personal correspondence (Art. 144 Criminal Law). Information which has been acquired in conflict with the law shall be recognised as inadmissible and unusable as evidence. The court may consider only the evidence which has been acquired in accordance with the law. Investigating institutions may not break the procedure prescribed by law. The court generally takes the decision whether documents should be deemed privileged, because only the court may determine the admissibility of evidence. 9 European Court of Justice, 26 June 2007, Ordre des barreaux francophones et germanophone et al, C-305/05.

306

Latvia

It follows that decisions on whether information is privileged rest with the court and not the Bar institutions, which only ensure compliance with ethical rules.

7

Search of a lawyer’s office 34. In general, laws prohibit the control, the performance of an inspection or the withdrawal of documents that a lawyer has drawn up, or of the correspondence that he or she has received or sent in providing legal assistance, as well as prohibit the conduct of a search in order to find and withdraw such correspondence and documents (Art. 6 Law on the Bar; Art. 122 Criminal Procedure Law). A lawyer has the right to immunity from criminal proceedings if the information requested from the lawyer is a professional secret protected by law. In this regard, entering and performing investigative activities on premises in the possession of a lawyer is not allowed. Unlawful activity of a lawyer performed in the interests of a client while providing legal assistance of any form, as well as activity for the promotion of an offence of a client, shall not be recognised as provision of legal assistance (Art. 122 Criminal Procedure Law). In such cases institutions can make a search of the lawyer’s office or home. The search is in general limited to files relating to lawyers or clients under investigation. No other files should be opened or looked at.

8

Tapping of telephone conversations with a lawyer 35. Everyone has the right to inviolability of his or her correspondence but this right may be subject to restrictions in order to protect the rights of other people; the democratic structure of the state; and public safety, welfare and morals (Art. 96 116 Constitution of the Republic of Latvia). In general, it shall be prohibited to control information systems and means of communication, including electronic means of communication used by lawyers in providing legal assistance (Art. 6 Law on the Bar; Art. 122 Criminal Procedure Law). Persons who commit intentional violation of the confidentiality of personal information in the form of transmissions over a telecommunications network shall be subject to criminal liability (Art. 144 Criminal Law). Regarding the matter of violation of professional ethics, there occurred in Latvia a case where a lawyer at a hearing submitted as evidence a tape of a conversation between himself and the lawyer representing the other party. In accordance with Decision no 478 of 8 December 1998 of the Latvian Council of Sworn Advocates, it was considered a serious violation and therefore the lawyer was disbarred from the list of sworn advocates. In another case, the book Litigation Kitchen, published in August 2007, included a series of transcripts of allegedly wiretapped telephone conversations from the years 1998 to 2000 between a lawyer’s office and high-ranking 307

Professional secrecy of lawyers in Europe

members of the judiciary and politicians.10 In addition, the book’s introduction contained a direct indication of the persons participating in these telephone conversations. The General Prosecutor’s Office of the Republic of Latvia established a special working group charged with the verification of transcripts of wiretapped telephone conversations. Criminal proceedings were brought, but an action was dismissed because the prosecution did not consider it a criminal offence. It was clarified that telephone tapping was not sanctioned or legal, but the security police could not find the offender. In addition, some of the lawyers refused to identify themselves with the lawyers named in the book. The tapping of telephone conversations shall be performed if, in order to ascertain conditions to be proven in criminal proceedings, the acquisition of information regarding facts is necessary without informing the person involved in the criminal proceedings. Such tapping of telephone conversations is based on the decision of an investigating judge (Art. 210 Criminal Procedure Law). In addition, if a body performing investigatory operations is in possession of well-founded information with respect to the involvement of persons in crime, as well as regarding threats to interests of importance to the state and to state security and defence, investigatory wiretapping of conversations between such persons and other persons is permitted (Art. 17 Investigatory Operations Law).

9

The lawyer as witness 36. It shall be prohibited to interrogate lawyers as witnesses on facts which have become known to them while providing legal assistance, and a lawyer has the right to immunity from such proceedings. In such cases, the lawyer’s rights not to testify shall not be restricted. A lawyer who is called to testify on matters in which he did not act as a lawyer, and when he was not helping clients define their legal position, cannot refuse to testify on the basis of the duty of professional secrecy. A lawyer shall not undertake the defence or the provision of legal assistance, and he or she shall inform the defendant regarding the necessity to revoke an agreement if such agreement has already been entered into, if the lawyer is a witness or a victim in criminal proceedings or the personal interests of the lawyer or his/her relatives are in conflict with the interests of the person to be represented (Art. 87 Criminal Procedure Law).

10 J. Br¯uklenis, ‘Baltic Screen’, Lato Laspas priekˇsv¯ards. Ties¯asˇan¯as k¯a k¸e¯ k¸is. Advok¯ata Gr¯utupa ‘sak¯artoˇsanas’ receptes, Riga: Apg¯ads Mantojums, 2007.

308

Latvia

10

The lawyer and the press 37. It is generally accepted that a lawyer can, with the client’s consent, speak to the press in order to defend the client against allegations made in the press. However, the lawyer should refrain from conducting the case in the press rather than in the courtroom. In any case, the lawyer cannot disclose privileged information to the press. In this regard, except for some cases, in Latvia hearings are usually held openly; besides, representatives of the mass media shall have priority to be present at the adjudication of a matter. So, in general, the press has the right to be informed of the trial, regardless of whether the lawyer has provided the press with any information.

11

Powers of the tax administration and other authorities 38. Under Latvian law, it is generally accepted that no authority is entitled to compel a lawyer to disclose a client’s confidential information, but there are some exceptions when it is permitted to obtain this confidential information in order to ascertain conditions to be proven in criminal proceedings and when there is well-founded information with respect to the involvement of persons in crime, as well as regarding threats to interests of importance to the state (see nos 31 and 35 of this chapter).

12

State security service 39. In Latvia, national security institutions consist of the Constitution Protection Bureau, Military Intelligence and the Security Service, as well as the security police. The Cabinet of Ministers may also involve other governmental bodies in public safety measures. The objectives of these institutions are the protection of the life and health, the rights and freedoms, the honour, the dignity and the property of persons; and the safeguarding of the Constitution; the political system; national independence and territorial integrity; the capabilities of the state regarding defence, the economy, science and technology; and official state secrets. Investigation methods that violate the lawyer’s professional secrecy are only permitted if there are serious indications that the lawyer in question is participating in an activity that constitutes a potential threat to persons, to national security or to the state. In that case, bodies performing investigatory operations can, to the extent necessary for the investigation, tap the lawyer’s telephone communications, search his or her house, access his or her computer and bank accounts, and open correspondence.

309

19 Liechtenstein mario frick President of the Liechtenstein Chamber of Lawyers

1 Scope of and limitations on professional secrecy 310 A Statutory basis and implications 311 B Scope 312 C Persons subject to the duty of professional secrecy 314 D Limitations and derogations 314 E Law firms 315 F Legal assistants and staff 315 G External service providers 315 H Multidisciplinary associations 315 2 History 316 3 Supervision 316 A The bar association 316 B The courts 316 4 Sanctions 317 A Proceedings and sanctions 317 B Relationship between criminal sanctions and disciplinary sanctions 317 5 Duty to provide information to the authorities 318 A Money laundering and terrorism 318 6 Treatment of a lawyer’s documents and correspondence in the context of judicial investigations 318 7 Search of a lawyer’s office 318 8 Tapping of telephone conversations with a lawyer 319 9 The lawyer as witness 319 10 The lawyer and the press 319 11 Powers of the tax administration and other authorities 319 12 State secret service 319

1

Scope of and limitations on professional secrecy 1. Legal professional privilege and the confidentiality between client and attorney represent one of the most important ‘privileges’ of the attorney. Other privileges, or more specifically the essential requirements for the diligent

310

Liechtenstein

practice of the legal profession, include the independence of the attorney and the free choice of brief.

A

Statutory basis and implications 2. The legal basis is spread between various laws and directives. A major provision appears in the Liechtenstein Act on Attorneys-at-Law (RAG) in Article 15. This is worded as follows: 1) The attorney has an obligation of secrecy in respect of matters he or she has been entrusted with and other matters that have become known to him in his professional capacity, and whose secrecy is in the best interests of his client. He is entitled to claim legal professional privilege in legal and other official proceedings in accordance with the procedural provisions. 2) The right of the attorney to maintain secrecy may not be circumvented by legal or other official measures, in particular by interrogation of the attorney’s assistants or by imposing the delivery of written documents, pictures, recorded speech or data carriers (documents) or their confiscation; specific rules on the scope of this interdiction remain unaffected.

Other provisions appear in the relevant procedural laws, namely the Code of Criminal Procedure (StPO) and the Code of Civil Procedure (ZPO). These provisions are very similar in wording to Austrian legislation. This is also the case in other laws. In its legislation Liechtenstein is very willing to borrow, meaning that it will look to see what legal solutions exist – normally in the case of its neighbours, Switzerland and Austria – and then adopt them with minimal variation. It may be noted that there is a tendency for procedural laws from Austria to be adopted. 3. The provisions of the procedural laws essentially govern the following. The evidence of a witness may be refused, if that witness has received this information from his or her client in his or her capacity as an attorney (S. 321, para. 1, no 4, ZPO). In criminal proceedings witnesses are fundamentally obliged to give evidence. Attorneys, however, are released from this obligation in respect of information confided in them by their principal in their capacity as attorneys (S. 107, para. 1, no 3, StPO). The right to an attorney, and in particular to an attorney who is subject to confidentiality, is also set out in Articles 6 and 8 ECHR. In Liechtenstein the ECHR has constitutional status. The statutory regulations on confidentiality are further endorsed by Sections 19 and 26 of the Professional Guidelines of the Liechtenstein Chamber of Lawyers. These set out these obligations in concrete terms but do not, however, contain any more extensive commitment. 311

Professional secrecy of lawyers in Europe

B

Scope 4. Attorney–client privilege does not just apply on its own account and simply because an attorney is involved. It applies in a situation in which it is important for the client to be given an opportunity to disclose his or her business freely, comprehensively and without fear of betrayal. This is the only way a client can receive comprehensive advice and clarify all possible variants in his or her defence or in connection with consultation about future legal situations (contracts, wills, explanation of the legality of conduct etc.). The limits of this obligation of confidentiality are set ‘according to the procedural provisions’. 5. An intense debate is currently going on in both Switzerland and Austria on whether the protection of the attorney’s obligation of confidentiality should benefit not only his or her own client, at all events, but also others. The example that is regularly raised is the case of the attorney receiving confidential information from another person, such as a journalist or a doctor, in the representation of the client. The question then arises whether in such a case the attorney– client privilege also extends to this information or whether an understanding only – that is, a contractual arrangement – exists between the informant and the attorney in this case. Whereas in the case of a journalist or a doctor it may be possible to invoke other laws and establish an obligation of confidentiality, it might be much more difficult as far as detectives and so on are concerned. In Liechtenstein this question has not yet been conclusively clarified.1 There is a basic consensus that Article 15 RAG (see no 2 of this chapter for its content) serves as a key provision for attorney–client privilege. This being so, Section 321, paragraph 1, no 4, ZPO (no 3 of this chapter) is in particular understood as an endorsement of and in no way a restriction on this provision.2 The Liechtenstein Supreme Court has also clearly recorded in a landmark decision from the 1990s that the protection of confidentiality under civil law frequently needs to be put into context. In doing so it might sometimes appear difficult to accept and recognise the positive aspects of confidentiality, especially when they are also used for concealment or to keep secrets which are not worth protecting. However, the point is made that legal privilege is not intended to protect worthless secrets but to protect confidence in the attorney and in the special position the attorney enjoys in the overall national system of legal protection.3

1 Cf., on this subject, the references in Theresia Schur, ‘The Attorney’s Obligation of Secrecy in the Austrian Legal System’, in Austrian Journal of Attorneys 2009/06, 257 et seq.; for an alternative point of view Kaspar Schiller, Swiss Law on Attorneys, Zurich, 2009, marginal reference 435. 2 Schur, ‘The Attorney’s Obligation of Secrecy in the Austrian Legal System’, 258. 3 Supreme Court, 28 September 1992, published in Liechtensteinische Entscheidungsssammlung (LES) (Collection of Liechtenstein Judgments) 1993, 116.

312

Liechtenstein

In the Code of Criminal Procedure, on the other hand, particular emphasis is placed on the relationship of trust between client and attorney laid down in Article 15 RAG. Pursuant to Section 107, paragraph 1, no 3, StPO, everything that the attorney has learnt in this capacity from a defendant is also actually confidential; the attorney is released from making a statement in this respect. Some Supreme Court and Constitutional Court case law does exist in this connection, and can be summarised as follows: everything that the attorney has collected and learnt in this function and in the performance of this function for a client is subject to confidentiality. This also refers to the correspondence between the defence counsel and the accused in criminal proceedings. The Constitutional Court of the Principality of Liechtenstein summarised this in the landmark StGH 1999/023 decision of 2 February 2000, as follows:4 In the light of the specific basic legal protection in favour of the defendant in criminal proceedings which is particularly significant in constitutional terms, not only may the data media held by the defence counsel, referring to the client relationship between the defence counsel and the defendant, not be seized and used as evidence in criminal proceedings, but nor may those in the keeping of the defendant or even a third person. The attorney’s general right to refuse to testify pursuant to S. 107, para. 1, no 3, StPO only protects such information which in the broader sense falls within the ‘sphere of influence’ of the attorney. Documents held by the client, referring to a general client relationship with an attorney as defined in S. 101, para. 1, no 3, StPO do not a priori fall under the attorney’s right to refuse to testify.

6. The scope of the function performed by an attorney is basically laid down in Article 7 RAG. Attorneys have the exclusive right to engage in professional legal consultancy and professional party representation in all judicial and extrajudicial and all public and private matters. This monopoly is very closely linked to attorney–client privilege. It is even based on it to a significant extent. An attorney must be able to act on his own, independently and with the relevant professional qualifications, to be able to give the client comprehensive advice in the knowledge of all the relevant facts. He or she will only be able to obtain these relevant facts if the client knows that the attorney is not going to ‘stab him in the back’ in proceedings and disclose precisely these confidential facts to the court or to third parties. It is, however, clear that aspects outside this sphere are not covered by confidentiality. The Constitutional Court of the Principality of Liechtenstein summed this up in its StGH 1998/039 decision of 27 September 1999 as follows:5

4 See LES 2003, 1 et seq.

5 Published in LES 2002, S. 70, lead clause 1.

313

Professional secrecy of lawyers in Europe

Asset management and the acceptance of management mandates do not fall within the attorney’s function pursuant to Article 7 RAG. The notion of protection of the attorney’s right to refuse to give evidence, to enable the person seeking legal assistance to confide in the attorney without reservation, without having to fear disclosure of this information, does not apply in asset management transactions. With reference to the attorney’s function the legislator has consciously accepted that it will be more difficult to establish the truth, albeit only within the scope of the attorney’s function it has established.

C

Persons subject to the duty of professional secrecy 7. Attorney–client privilege refers to the relationship between attorney and client. Therefore both of them, namely attorney and client, are holders of this confidentiality. The client cannot be compelled to release his attorney from secrecy, and in turn the attorney may not reveal secrets without an express and free decision on the part of the client. The relationship of trust between the attorney and the client is primarily contractual. On the other hand, it also stems from the principle that no one should have to incriminate him- or herself and be exposed to criminal proceedings. It therefore also serves to implement the basic principles of the Liechtenstein constitution and the ECHR, which guarantee the protection and the dignity of the individual. On this subject the Liechtenstein Supreme Court states as follows in its RS 24/90 decision of 4 August 1991:6 With reference to Article 102, para. 1, sentence 2, of the national constitution and Article 6 ECHR in connection with Ss. 107, 108 StPO: as the Liechtenstein Constitution has established the accusatory principle for criminal proceedings in its Article 102 para. 1, the principles of a fair trial (also as referred to in Article 6 ECHR) require that not only the Prosecution Service (StA), but also the suspect (defendant, accused), should be a party to the criminal trial with accurately defined rights and obligations. The latter do not in general include the obligation of a person to be considered a suspect etc. to incriminate himself.

D

Limitations and derogations 8. The attorney–client privilege basically has no limit in time; therefore it continues even after the mandate has ended. This is expressly stated for clarification in Section 26, paragraph 2, of the Professional Guidelines. It can only be revoked by the client him- or herself, and this must be by a free decision. But even if not expressly released from the obligation of confidentiality, the attorney may, if he or she considers it necessary in the 6 Published in LES 1991, 124, basic principle 1.

314

Liechtenstein

best interests of his client, invoke it again (S. 26, para. 2, of the Professional Guidelines). 9. As already mentioned above, the attorney–client privilege may not exist in absolute terms and without consideration for other legitimate interests. It is true that the breach of professional secrecy is made a punishable offence in Section 121 Liechtenstein Criminal Code (StGB). Section 121, para. 5, StGB implies, however, that a person who violates such a secret will not be penalised if the disclosure of this secret ‘in terms of form and content’ – i.e. insofar as it is really necessary – is justified by a public or legitimate private interest. This means that in extreme situations, for example for the protection of abducted children or to prevent a serious crime, an attorney must cast aside the particular relationship of trust and may pass on information – or may even be obliged to.7

E

Law firms 10. Liechtenstein also recognises law firms (Art. 10 and 10(a) to 10(h) RAG), in that these may be organised in the form of a simple partnership or general partnership, but also in the form of a public or private limited company. The law provides that even in this case the preservation of attorney–client privilege must be guaranteed. This is also the reason why under Liechtenstein law only attorneys may be shareholders, directors or managers of a law firm, which guarantees that all important individuals and bodies are subject to legal professional privilege.

F

Legal assistants and staff 11. The attorney–client privilege is extensive. It is not possible to circumvent it by exercising pressure on the administrative office instead of the attorney. This is expressly established in the relevant laws and Professional Guidelines (S. 26, para. 1).

G

External service providers 12. If an attorney assigns specific services to an external office which may have more expertise and understanding of the case, this will also, according to the correct understanding, be covered by attorney–client privilege. The relevant expert engaged must be expressly referred to his role as an agent of the attorney and the obligation of confidentiality.

H

Multidisciplinary associations 13. No multidisciplinary partnerships are permitted in Liechtenstein. 7 Peter Lewisch in Wiener Kommentar StGB (Vienna Commentary on the Penal Code), ed. Frank H¨opfel and Eckart Ratz, on S. 121 Strafgesetzbuch (Penal Code), marginal note 22 et seq.

315

Professional secrecy of lawyers in Europe

2

History 14. The history of the Liechtenstein Chamber of Lawyers as such is quite recent. It was only created in 1992 as part of the total revision of the Liechtenstein Act on Attorneys. The reform of the legislation was undertaken at the time to prepare for the approaching accession of Liechtenstein to the EEA (European Economic Area). Prior to that, attorneys had only been organised in a more private bar association. The legislation at the time was already mainly based on the Austrian model. Attorney–client privilege was already provided for in the previous law on attorneys. The historical derivation and foundation can therefore be linked to the Austrian legal tradition.

3

Supervision

A

The bar association 15. To begin with, it must be said that the Liechtenstein Chamber of Lawyers is a small chamber. Liechtenstein has 35,000 inhabitants, but at the same time around 34,000 jobs and several thousand companies doing business in Liechtenstein. So, at 180 the current quota of attorneys is considered to be relatively high, but obviously in absolute terms still very low compared with countries such as Germany or France. Due to the small size of the chamber and its historical development, it has never developed its own jurisdiction as a chamber. But it is fully informed and fully involved. This means that the chamber is involved in any supervisory and disciplinary proceedings against attorneys who fail to fulfil their obligation of confidentiality, but does not make decisions. The Chamber of Lawyers does, however, have rights as a party and right of petition in such proceedings.

B

The courts 16. Disciplinary proceedings against attorneys fall within the jurisdiction of the Court of Appeal (Obergericht). Criminal proceedings may also be brought against an attorney who unlawfully flouts the obligation of secrecy. Such proceedings will be conducted by the competent court of justice. An attorney who culpably violates the obligations of his or her profession or who, through professional conduct, has dishonoured the profession or brought it into disrepute, commits a disciplinary offence (Art. 31, Abs. 1, RAG). Violation of the obligation of secrecy in the RAG and in the Professional Guidelines is such an offence.

316

Liechtenstein

4

Sanctions

A

Proceedings and sanctions 17. Violation of the confidentiality existing between attorney and client constitutes a criminal offence as defined in Section 121 StGB and carries a penalty of one year or a fine of up to 360 days. The offender, i.e. the attorney, can only be prosecuted at the request of the party whose interest in non-disclosure has been injured. Disciplinary proceedings would be opened as parallel proceedings, so that in the worst case the culpable attorney could be banned from practising the profession. The following sanctions can be imposed: (i) a written reprimand, (ii) a fine of up to 50,000 francs, (iii) a ban on practising the profession of attorney for up to one year and (iv) a permanent ban on practising the profession (Art. 34 RAG). Criminal proceedings only take place upon the relevant application of the aggrieved party. In the first instance such cases fall within the jurisdiction of the courts of justice, and then of the Court of Appeal; the Supreme Court is the court of third instance. 18. Disciplinary proceedings may be instigated ex officio or by notice. If criminal proceedings are being conducted against an attorney, the Court of Appeal and the Chamber of Lawyers must in any case be notified. The Chamber of Lawyers has a right of petition and a right of appeal in the proceedings. The Act on Attorneys is currently the subject of a working group, which is working out the procedural provisions for disciplinary proceedings in more precise detail.

B

Relationship between criminal sanctions and disciplinary sanctions 19. In accordance with the law, the disciplinary proceedings and the criminal proceedings are in principle conducted independently of one another. In practice, however, the disciplinary proceedings are regularly suspended to await the results of the criminal proceedings. This approach has been criticised by the Chamber of Lawyers on the basis that the criteria in criminal proceedings and in disciplinary proceedings are not the same. Even the objectives are not the same. In criminal proceedings the aims are to penalise criminal behaviour and act as a deterrent. On the other hand, disciplinary proceedings are intended to guarantee conduct which conforms with standards and to protect the consumer. The criminal proceedings may, and by rights should, last longer. Disciplinary proceedings should, however, be settled quickly, to produce rapid results. 317

Professional secrecy of lawyers in Europe

5

Duty to provide information to the authorities 20. Attorney–client privilege is not absolute, but must be amenable to breach in certain circumstances. However, in communications between the criminal defence counsel and his or her client there must be complete transparency and there is no scope here for corresponding information. Such obligations do, however, exist in various other areas.

A

Money laundering and terrorism 21. Liechtenstein has implemented all three EU money-laundering directives in connection with its membership of the EEA. The money-laundering directives exempt attorneys from the reporting obligation, if the attorney’s core activity is involved, as in the example already cited of the assigned counsel whose contacts with his client are subject to absolute confidentiality. However, if the attorney acts as a ‘financial intermediary’, he must also submit to the reporting obligations of the Liechtenstein Due Diligence Act. A financial intermediary is defined as a person who assists in the holding, transfer, management, safekeeping or conversion of assets. The Chamber of Lawyers and the Financial Market Authority (FMA) in Liechtenstein have established professional guidelines for attorneys, indicating when and to what extent attorneys fall under the Due Diligence Act. These guidelines can be viewed on the FMA website (www.fma-li.li). This essentially confirms what has already been said: in cases where the attorney is engaged in his or her core activity – namely providing legal advice, acting as a defence counsel, representing clients vis-`a-vis authorities – the obligation of confidentiality and in particular the right to remain silent shall be upheld. This is also expressly stated in Article 17, paragraph 2, of the Liechtenstein Due Diligence Act. 22. As far as provisions for the prevention of terrorism are concerned, reference may be made to what has already been stated concerning the control of money laundering.

6

Treatment of a lawyer’s documents and correspondence in the context of judicial investigations 23. An attorney’s records are subject to special protection if they are subject to confidentiality. Reference may be made to what has already been stated.

7

Search of a lawyer’s office 24. If an attorney’s records have to be subject to scrutiny, he or she shall have the right to be present.

318

Liechtenstein

8

Tapping of telephone conversations with a lawyer 25. The investigating judge may only conduct surveillance of the written correspondence and telephone conversations between an offender being held in custody and his defence counsel under strictly regulated conditions and circumstances. Basically, the defendant is entitled to discuss matters with his or her defence counsel. If, however, there is a risk of suppression of evidence, a risk of reoffending or even risk of endangering third parties, the investigating judge may order surveillance with a substantiated decision. This surveillance may, however, only continue until charges are brought at the latest. Searching the offices or surveillance of any attorney in order to circumvent his obligation of confidentiality is not permitted.

9

The lawyer as witness 26. Even an attorney may be called before a court to testify as a witness and, unless the right to refuse to testify indicated above applies, he or she also has an obligation to testify.

10

The lawyer and the press 27. There are no particular precepts under Liechtenstein law to indicate how the attorney should deal with the press. If this has been arranged with the client, the lawyer may disclose information to the press, including for tactical reasons. It is, however, an accepted standard that cases should not be debated through the press, but that in principle legal proceedings must be considered and protected.

11

Powers of the tax administration and other authorities 28. Attorney–client secrecy is in general also protected vis-`a-vis the Tax Administration, insofar as it meets the basic criteria already set out above. If an attorney is engaged in straight tax consultancy, and as part of this function completes tax returns for a client and acts accordingly, this is not covered by attorney–client confidentiality. However, basic consultation with a client will be included. If, for example, a client wishes to know whether a specific course of action complies with the Tax Act, or what would be the best way to pay as little tax as possible – within the law – this is covered by attorney–client privilege.

12

State secret service 29. Liechtenstein has no secret service.

319

20 Lithuania akvil e´ bosait e´ Senior Associate at the Law Firm Raidla, Lejins & Norcous

karina kuizinait e´ Associate at the Law Firm Raidla, Lejins & Norcous

Preliminary note 321 1 Scope of and limitations on professional secrecy 322 A Statutory basis and implications 322 B Scope 323 C Persons subject to the duty of professional secrecy 323 D Limitations and derogations 323 a Limitations 324 b Derogations 324 E Law firms 325 F Legal assistants and staff 325 G External service providers 325 H Multidisciplinary associations 326 2 History 326 3 Supervision 326 A The Bar Association 326 B The courts 326 4 Sanctions 327 A Proceedings and sanctions 327 a Disciplinary proceedings and sanctions 327 b Criminal proceedings and sanctions 328 c Civil proceedings and damages 328 B Relationship between criminal sanctions and disciplinary sanctions 328 5 Duty to provide information to the authorities 328 A Money laundering and terrorism 328 B Collective settlement of debts 329 6 Treatment of a lawyer’s documents and correspondence in the context of judicial investigations 329 7 Search of a lawyer’s office 330 8 Tapping of telephone conversations with a lawyer 330 9 The lawyer as witness 330 10 The lawyer and the press 330

320

Lithuania

11 Powers of the tax administration and other authorities 12 State security service 331

330

Preliminary note 1. In Lithuania, lawyers (attorneys) (advokatai) who are admitted to the Lithuanian Bar Association (Lietuvos advokat¯ura) are subject to the duty of professional secrecy. The right to appear in a court is entitled only to attorneys who are admitted to the Lithuanian Bar Association (with a few exceptions for assistant attorneys, lawyers representing their relatives etc.). Such attorneys may practise law either individually or on the basis of a partnership without establishing a legal person or by establishing a legal person (a professional partnership of attorneys). All attorneys must comply with the Law on the Bar of the Republic of Lithuania (18 March 2004, no IX-2006) and with the Code of Attorney’s Ethics. All attorneys are members of the Lithuanian Bar Association, which is a public legal person domiciled in Vilnius. Lawyers may also additionally join the Lithuanian Young Bar Association on a voluntary basis, which unites attorneys and their assistants (advokatu˛ pad˙ej˙ejai) under the age of forty-five years. The Lithuanian Young Bar Association is also a member of the European Young Bar Association. 2. According to the Law on the Bar, an assistant attorney has all the rights and duties of attorney provided by this law, except for membership in the Lithuanian Bar Association and a few restrictions established in procedural laws. An assistant attorney is entitled to represent his/her client’s interests in court only subject to the written permission of the attorney (who is the supervisor of his/her apprenticeship) for representation in a particular case. The assistant attorney may be a representative only in courts of first instance and not earlier than one year after the commencement of his/her apprenticeship as an assistant attorney. The assistant attorney is not entitled to represent in criminal cases where serious or particularly serious crimes are concerned. 3. In-house counsels and lawyers working for state or public organisations are not members of the Lithuanian Bar Association. They can voluntarily join the Institute of Lithuanian Lawyers (Lietuvos Teisininku˛ Draugija) or other similar associations, of which persons with a law degree or persons pursuing one may become members. Such lawyers are, in practice, subject to confidentiality arrangements, the scope of which is usually stipulated in their employment agreements. 4. This report concentrates on the duty of professional secrecy of attorneys who are members of the Lithuanian Bar Association, as well as of assistant attorneys. Thus, for the purpose of this report, the term ‘lawyer’ or ‘attorney’ refers to attorneys and assistant attorneys, unless indicated otherwise. 321

Professional secrecy of lawyers in Europe

1

Scope of and limitations on professional secrecy

A

Statutory basis and implications 5. The main legal acts regulating issues of the duty of professional secrecy in Lithuania are the Law on the Bar, the Code of Attorney’s Ethics, the Code of Criminal Procedure (14 March 2002, no IX-785) and the Code of Civil Procedure (28 February 2002, no IX-743). Other regulations exist but are of less importance. 6. The Law on the Bar stipulates that non-disclosure of a client’s secret is a fundamental principle which the lawyer must follow in practice. In accordance with the Code of Attorney’s Ethics, confidentiality is the prime and most significant right and duty of the attorney. The lawyer must assure the client that the information provided to him/her will be safeguarded as a professional secret. However, certain information relating to the client may be disclosed with the client’s permission. 7. Pursuant to Article 5(2) of the Code of Attorney’s Ethics, certain information relating to the client may be disclosed with the client’s permission. However, the Law on the Bar and the Code of Attorney’s Ethics do not further elaborate the scope of the client’s right to relieve the lawyer of his duty to safeguard the client’s secret. By disclosing the information with the client’s consent the attorney should be acting in the best interests of the client and complying with the principles of proportionality, fairness and honesty. The obligation to keep the client’s information confidential is, as a rule, entrenched in the agreements on provision of legal services entered into by the client and the lawyer or law firm. In many cases, disclosing information without the client’s consent would constitute a breach of contract as well. 8. In accordance with the Code of Attorney’s Ethics, a period of prescription is not applicable to the confidentiality obligation, i.e. the lawyer must safeguard professional secrecy for an unlimited period of time. For this reason, the lawyer is not allowed to consult, represent, defend or act on behalf of two or more clients concerning the same question or court proceeding if the clients’ interests are opposite to each other. However, in its decision of 21 October 2002, the Supreme Court of the Republic of Lithuania has declared that the law firm’s participation in a provision of legal services for a legal person may not deprive other members of the same law firm of a right to render legal services to another legal person with opposite interests, provided that there have been no malicious agreements found between both of the lawyers from the same law firm.1 However, in practice it is highly recommended to avoid situations where 1 The Supreme Court of the Republic of Lithuania, 21 October 2002, no 3K-3-1194/2002.

322

Lithuania

lawyers from the same law firm provide legal services to opposite parties, as the boundary of information flow is blurred. 9. Attorneys come across matters of the disclosure of professional secrets in their daily work. Information to be disclosed to a third party (if any) depends on each case individually, and lawyers usually seek to solve these matters privately, with the client’s consent. This is probably one of the main reasons why there is not much public practice established in specific cases of the disclosure of client-privileged information in Lithuania.

B

Scope 10. In accordance with the Law on the Bar, professional secrecy encompasses the fact of approaching the attorney, the terms of a contract with the client, the information and data provided by the client, and the nature of the consultation and the information collected by the attorney upon an order of the client. It is generally accepted that the duty of professional secrecy covers any kind of information provided to the lawyer, be it oral or written. 11. All and any information provided to the attorney by the client is covered by the duty of professional secrecy, unless such information is not related to the provision of legal services. The attorney cannot be a witness or give explanations regarding circumstances which came to his/her knowledge in pursuit of his/her professional activities. In accordance with the Law on the Bar, it is prohibited to restrict a private meeting between attorney and client and also to familiarise oneself, overtly or covertly, with the information comprising an attorney’s professional secret and use it as evidence (Art. 46(5) Law on the Bar).

C

Persons subject to the duty of professional secrecy 12. All attorneys and assistant attorneys are subject to the duty of professional secrecy. In accordance with the Code of Attorney’s Ethics, lawyers must require their colleagues and assistant attorneys, their employees or the employees of a professional partnership of attorneys, and other persons involved in the provision of legal services to comply with the same obligations of professional secrecy (confidentiality). Attorneys are liable if this requirement is not met.

D

Limitations and derogations 13. Client-privileged information may be subject to certain exceptions and derogations on a case-by-case basis. If an exception applies, the attorney must disclose the information that falls under this exception. Should there be a case of derogation, the attorney may decide whether to disclose the information in question. 323

Professional secrecy of lawyers in Europe

a

Limitations

14. There are no explicit exceptions for the disclosure of professional secrets established in the Law on the Bar or in other related regulations. In general, exceptions are formulated by the courts when analysing particular cases. For example, in its decision of 30 March 2010, the Supreme Court of the Republic of Lithuania highlighted one exception to the attorney–client privilege.2 In the case analysed, an attorney was investigated as a suspect and later as a defendant alongside his clients, who were accused of committing a crime and of using unlawful means of defence (influencing the victim in a rape case). The attorney refused to testify in the case in which he was involved and stood as an accused on the grounds of an obligation to safeguard clients’ secrecy. The Code of Attorney’s Ethics and the Code of Criminal Procedure prohibit defending a client’s interests which induce one to take unlawful means and methods of defence. Following the latter rule, the Supreme Court noted that legitimacy is a fundamental principle of the attorney’s activity and information about the attorney’s unlawful and even criminal activities while defending clients’ interests may not be considered a professional secret or information. In this particular case, the Supreme Court emphasised, principles of loyalty to the client and professional secrecy should be considered as a means to escape criminal liability, rather than as having the aim of safeguarding the client’s secrets. Another important precedent was formulated in the decision of the Supreme Court of the Republic of Lithuania of 15 October 2010,3 whereby the Supreme Court emphasised that information overheard in a public conversation between client and attorney, particularly the information about a crime which it was intended to commit, shall not be regarded either as data received from a meeting of client and attorney, nor as a professional secret of the attorney, and that such data or information shall not be prohibited from being used as evidence in accordance with the Law on the Bar. b

Derogations

15. In general, an attorney is obliged to keep information received from the client confidential unless the client gives consent for disclosure. The Code of Attorney’s Ethics indirectly regulates disclosure of professional secrets in criminal cases which are considered more sensitive from a social perspective, saying that even though the attorney is an independent participant in the criminal proceedings, he/she may not choose a strategy of defence without the client being aware of it. In such cases the attorney must consult the client and take into account the client’s reasoning and arguments. Therefore the scope and nature 2 The Supreme Court of the Republic of Lithuania, 30 March 2010, no 2K-102/2010. 3 The Supreme Court of the Republic of Lithuania, 15 October 2010, no 2K-144/2011.

324

Lithuania

of the information to be disclosed to the court or to other institutions must be oriented around the client. 16. There is also a clause in the Code of Attorney’s Ethics which may indirectly imply the possibility for the attorney to disclose confidential information. Article 6(11) stipulates that if the lawyer arrives at the conclusion that the client’s fault may not be proved after analysis of all evidence collected, but the client pleads guilty nonetheless, the attorney may pursue his/her own independent position regarding the client’s case. However, the latter right of the attorney and the scope of the information to be disclosed at the lawyer’s discretion are not further elaborated in statutory law and would depend on the individual case concerned.

E

Law firms 17. It is difficult for lawyers who work in a law firm to protect privileged information. This is due to the fact that in cases where legal services are rendered by the law firm, all or many lawyers of the firm are deemed to be engaged in the process. Various lawyers may contribute to the fulfilment of the client’s assignment. 18. In accordance with the Code of Attorney’s Ethics, lawyers must require their colleagues, assistants and employees; employees of a professional partnership of attorneys; and other persons involved in the provision of legal services to comply with the same obligations of professional secrecy (confidentiality), and are liable for this. The attorney–client privilege applies to all information provided by the client to lawyers of the firm, regardless of whether they are partners or associates. In all cases, they work on behalf of the firm. Following established practice, legal assistants and staff are also bound by confidentiality arrangements stipulated in their employment, or other, related, agreements.

F

Legal assistants and staff 19. As has been mentioned above (see no 18 of this chapter), attorneys must require other persons, including legal assistants and staff involved in the provision of legal services, to comply with the same obligations of professional secrecy (confidentiality), and are liable for this.

G

External service providers 20. When confidential information is sent outside the law firm to non-lawyers in order to accommodate the provision of legal services, the obligation of professional secrecy continues to apply. In cases of outsourcing, the lawyer must ensure that external service providers (such as accountants and translators) keep the information received secret. In order to minimise the risk of disclosure of confidential information to third parties, lawyers and external service 325

Professional secrecy of lawyers in Europe

providers usually enter into confidentiality agreements. In any event, privileged information shared by lawyers with non-lawyers in order to prepare the client’s case should remain protected by the duty of professional secrecy. A lawyer may, with the client’s consent, share information on specific matters requiring co-operation with third parties.

H

Multidisciplinary associations 21. There are no multidisciplinary associations in Lithuania.

2

History 22. A duty of professional secrecy is not a brand new concept in Lithuania. The first Law on the Bar was adopted in 1992 after Lithuania achieved independence from the Soviet Union in 1990. The latter law entrenched fundamental principles of professional secrecy and the lawyer’s duty to safeguard it. These fundamental principles, in essence, were repeated and slightly broadened in the subsequent legislation on the Lithuanian Bar in 1998 and 2004. A qualitative step further was made when adopting the first Code of Attorney’s Ethics in 1999, although the duty to safeguard professional secrecy and its scope were not as widely elaborated as they became in the current version of the Code of Attorney’s Ethics adopted in 2005. Within the context of Lithuania’s admission to the European Union in 2004, the European Union Code of Attorney’s Ethics was approved by the Lithuanian Bar Association the same year.

3

Supervision

A

The Bar Association 23. In general, a lawyer who belongs to the Lithuanian Bar is subject to the authority of the Lithuanian Bar Association for violations of the requirements of the Law on the Bar and the Code of Attorney’s Ethics as well as for professional misconduct (including violations of professional secrecy). A decision to institute disciplinary action may be taken by the Council of the Lithuanian Bar Association (‘the Council’) or the minister of justice. Disciplinary actions against attorneys are heard by the Court of Honours of Attorneys.

B

The courts 24. The courts of common competence have jurisdiction to hear any claims for professional liability brought against the lawyer by the client (including civil and criminal cases). No special rules apply to lawyers in this respect.

326

Lithuania

4

Sanctions

A

Proceedings and sanctions

a

Disciplinary proceedings and sanctions

25. A disciplinary action may be instituted against the attorney for violations of the requirements of the Law on the Bar and the Code of Attorney’s Ethics, as well as for professional misconduct. A disciplinary action may be instituted (i) upon a decision adopted by the Lithuanian Bar Association or (ii) upon an order of the minister of justice. The process of disciplinary action comprises two stages: (i) the preparatory stage and (ii) the hearing. 26. To prepare for a disciplinary action, the Council forms a disciplinary committee from members of the Bar and appoints one of the Council members to take the position of chair of the committee. The number of members of the disciplinary committee is determined by the Council on a case-by-case basis. Preparation for the disciplinary case is aimed at collecting comprehensive data about the possible breach conducted by the lawyer suspected. For this purpose the chair of the disciplinary committee and its members may exercise the same professional rights to which attorneys are entitled when they are collecting data in the course of the provision of legal services. All and any information collected and the disciplinary case of the attorney are considered to be strictly confidential. The disciplinary case must be prepared and submitted to the Court of Honours of Attorneys within two months after the decision to initiate the disciplinary action is made. The two-month period may be extended for one additional month by the Council, taking into account the scope and the complexity of the case under investigation. The preparation stage for the disciplinary case is finalised with the act of breach of professional activity and/or professional ethics (‘the act’). The act is sent to the attorney who is subject to the disciplinary hearing, and to the claimant, not later than seven days before the hearing in the Court of Honours of Attorneys. 27. After the preparation stage, disciplinary actions against lawyers are heard by the Court of Honours of Attorneys. A quorum of three members of the Court of Honours of Attorneys is required to hear a case. Questions that arise during the hearing are decided by a majority vote of members. A disciplinary case is finalised by adopting a final decision of the Court of Honours of Attorneys. The following disciplinary sanctions may be imposed on the lawyer in breach: (i) censure, (ii) reprimand, (iii) public reprimand and (iv) invalidation of the decision of the Lithuanian Bar Association to recognise the person as an attorney. For assistant attorneys, alongside sanctions (i), (ii) and (iii), a disciplinary 327

Professional secrecy of lawyers in Europe

sanction, removal from the List of Assistant Attorneys of Lithuania, may be imposed instead of sanction (iv). The decision of the Court of Honours of Attorneys may be appealed to the Vilnius Regional Court within thirty days from the delivery of a copy of the decision to the attorney or assistant attorney. b

Criminal proceedings and sanctions

28. The Criminal Code of the Republic of Lithuania does not explicitly impose any criminal sanctions for violation of the attorney–client privilege. c

Civil proceedings and damages

29. In the event attorney–client privilege is violated as a result of a breach of contract, compensation may be awarded if the breach causes damage to the client. The courts of first instance have jurisdiction over such proceedings. An appeal is possible to the courts of appeal and cassation may be filed to the Supreme Court as the final instance.

B

Relationship between criminal sanctions and disciplinary sanctions 30. Criminal sanctions are not in general imposed on lawyers for a violation of the attorney–client privilege. It is common practice to impose a disciplinary rather than a criminal sanction for breach of professionalism and (or) professional ethics in Lithuania.

5

Duty to provide information to the authorities

A

Money laundering and terrorism 31. Financial institutions, insurance companies, auditors, notaries, bailiffs, accountants and other persons are obliged to comply with the requirements of the Law on Money Laundering and Terrorist Financing Prevention of the Republic of Lithuania (1997, no 64-1502) and to implement measures contained therein. This legislation also applies to attorneys and assistant attorneys when they are acting in the client’s name and on his/her behalf and assisting the client in the planning or execution of operations or management of transactions (or related transactions) concerning (i) buying or selling real property or business entities; (ii) managing the client’s money, securities or other assets; (iii) opening or managing bank or securities accounts; (iv) organising contributions necessary for the establishment, operation or management of legal persons; (v) trust deals; and (vi) the establishment of legal persons. Prior to the provision of these services attorneys must identify the client or his authorised representative. An attorney who has a suspicion that the transaction of his/her client may be related to money-laundering and/or terrorist-financing activity must submit the data and the information about the client’s identity and the suspicious

328

Lithuania

transaction to the Council by e-mail, fax or post immediately after the execution of the transaction despite the sum of money which the client receives or pays therefor. This information is registered in the register of suspicious and unusual transactions by the Lithuanian Bar Association. A representative of the Lithuanian Bar is obliged to transfer the information to the Financial Crime Investigation Service within three hours of its receipt. 32. The attorney is not obliged to provide the above-mentioned information to the Council in the following cases: (i) when assessing the legal status and situation of the client, and (ii) when defending the client or representing him/her in court, including but not limited to the provision of advice regarding the launch of the criminal proceeding or its evasion. The latter exemptions apply irrespective of whether this information has been received before, during or after the court proceeding.

B

Collective settlement of debts 33. Asking the lawyer to provide documents related to his/her client in a collective debt-settlement case is not usual in Lithuania. However, certain exceptions apply when the company in bankruptcy proceedings or the bankrupt company is a direct client of the attorney. Whenever disclosing information the lawyer is required to consider the scope and the nature of information to be disclosed, if any, to the requesting party. Confidentiality is the fundamental right and duty of the attorney, thus professional secrecy should be safeguarded under the highest professional standards of behaviour in all cases, including the collective settlement of debts.

6

Treatment of a lawyer’s documents and correspondence in the context of judicial investigations 34. Pursuant to Article 46(3) of the Law on the Bar, it is prohibited to examine, inspect or take away the attorney’s working documents or files containing information relating to his/her professional activities, to examine postal items, to tap telephone conversations, or to control any other information transmitted over telecommunications networks and other communications or actions. The exception applies to cases when the attorney is suspected or accused of a criminal act. Examination of an attorney’s correspondence may be conducted only under a pre-trial judge’s sanction and only in the presence of a member of the Council or its authorised attorney. If permission to examine the attorney’s documents is given, it must relate only to the documents relating to the allegations or charges made against the attorney. Information comprising an attorney’s professional secret may not be used as evidence (Art. 46(5) Law on the Bar). 329

Professional secrecy of lawyers in Europe

7

Search of a lawyer’s office 35. A search or seizure at the place of practice or residence or the motor vehicle of an attorney who is enrolled in the List of Practising Attorneys of Lithuania, or a body search, an examination, an inspection or seizure of documents and postal items, may be conducted only under a pre-trial judge’s sanction and in the presence of a member of the Council or its authorised attorney. A search of a lawyer’s office may be conducted only in cases when allegations are made against the lawyer. The member of the Council or the authorised attorney present during such actions must ensure that documents not relating to the allegations or charges made against the lawyer are not taken (Article 46(4) Law on the Bar).

8

Tapping of telephone conversations with a lawyer 36. The Law on the Bar prohibits the tapping of telephone conversations except for cases when the attorney is suspected or accused of a criminal act. Further, the Code of Criminal Procedure prohibits wiretapping, recording, controlling, fixing or saving an attorney’s conversations with a suspect or convict which are transmitted through any electronic means (Art. 154(7) Code of Criminal Procedure).

9

The lawyer as witness 37. The attorney cannot be summoned as a witness or give explanations regarding circumstances which came to his/her knowledge in the pursuit of his/her professional activities. Attorneys cannot be identified with their clients and their cases (Art. 46(7) Law on the Bar) (see no 11 of this chapter).

10

The lawyer and the press 38. Following the general principle, the lawyer is prohibited to disclose privileged information to the public unless the client gives his/her consent for such disclosure.

11

Powers of the tax administration and other authorities 39. The law on Tax Administration of the Republic of Lithuania (2004, no 632243) stipulates that when performing the functions assigned, the tax administrator (officer) is entitled to obtain data required for the performance of its obligations; copies of documents; and computer file data concerning the assets, income, expenses and activities of persons, including credit institutions. As in the case of collective debt settlement (see no 33 of this chapter), the lawyer

330

Lithuania

should follow the highest standards of safeguarding professional secrecy when requested to provide information to the tax authority about the client and therefore must consider on a case-by-case basis the scope and the nature of the information to be disclosed, if any, to the requesting party.

12

State security service 40. There are no explicit exemptions to the non-disclosure of client-privileged information established in the Law on Operational Activities of the Republic of Lithuania (2002, no 65-2633). Entities pursuing operational activities must act in compliance with the Constitution of the Republic of Lithuania and other laws and international treaties. As has been mentioned above in the other parts of this chapter (see nos 34 and 35), Article 46 of the Law on the Bar prohibits the examination, inspection or taking away of the attorney’s working documents or files containing information relating to his/her professional activities; the examination of postal items; the tapping of telephone conversations; the control of any other information transmitted over telecommunications networks and other communications; and searches of the place of practice or residence or of the motor vehicle of an attorney. The exception applies to cases when the attorney is suspected or accused of a criminal act, i.e. when the allegations or charges are made against the attorney. There have been proposals to amend the Law on the Bar and implement the right to conduct operational activities not only in cases when allegations or charges are made, but also in cases when the attorney may be suspected of committing a crime on the basis of the preliminary data collected. The Parliament rejected this proposal to amend the Law on the Bar. Therefore, in accordance with current legislation, the State Security Department and other related institutions must respect and comply with requirements to safeguard professional secrecy.

331

21 Luxembourg marc thewes Avocat a` la cour

Preliminary note 333 1 Scope of and limitations on professional secrecy 333 A Statutory basis and implications 333 B Scope 333 C Persons subject to the duty of professional secrecy 334 D Limitations and derogations 335 E Law firms 336 F Legal assistants and staff 336 G External service providers 337 H Multidisciplinary associations 337 2 History 337 3 Supervision 338 A The Bar Associations 338 B The courts 338 4 Sanctions 339 A Disciplinary proceedings and sanctions 339 B Criminal proceedings and sanctions 339 C Civil proceedings and damages 340 D Relationship between criminal sanctions and disciplinary sanctions 5 Duty to provide information to the authorities 340 6 Treatment of a lawyer’s documents and correspondence in the context of judicial investigations 341 7 Search of a lawyer’s office 341 8 Tapping of telephone conversations with a lawyer 342 9 The lawyer as witness 342 10 The lawyer and the press 342 11 Powers of the tax administration and other authorities 343 A Tax investigations concerning the lawyer’s client 343 B The lawyer’s own tax obligations 343 12 State security service 343

332

340

Luxembourg

Preliminary note 1. In the Grand Duchy of Luxembourg, the legal profession is organised by the 1991 Law on the Profession of Lawyer (Loi du 10 aoˆut 1991 sur la profession d’avocat), as amended. Within the limits of that Law, the legal profession is largely self-regulated. Article 19 of the 1991 Law grants the Bar the authority to regulate the profession by adopting Standing Rules (R`eglement int´erieur de l’Ordre) and the Luxembourg Constitution was amended in 2004 explicitly to confirm the legality of granting regulatory powers to professional bodies.1 Only lawyers admitted to the Bar may assist or represent parties in the courts, give legal advice or draft private contracts, and the law allows only a few exceptions to this rule.2 Lawyers admitted to the Bar can be self-employed or employed by a law firm. In-house lawyers employed by a company or public organisation cannot be members of the Bar.

1

Scope of and limitations on professional secrecy

A

Statutory basis and implications 2. The 1991 Law on the Profession of Lawyer recognises the existence of a legal professional privilege by stating that ‘Lawyers are held to a professional secrecy in accordance with Article 458 of the Penal Code.’3 Article 458 of the Penal Code imposes a duty of professional secrecy on doctors and other medical professionals and ‘those who, owing to their status or profession, obtain knowledge of secrets which are entrusted to them’. More detailed rules can be found in the Standing Rules adopted by the Bar Association.

B

Scope 3. Any information obtained by an attorney in the context of his professional activities is covered by professional secrecy, regardless of whether it was obtained from a client or from a third person. 1 ‘Laws may grant regulatory powers on matters relating to professional practice to professional bodies with a legal personality’ (free translation of Art. 11(6), para. 2, of the amended Luxembourg Constitution: ‘En mati`ere d’exercice de la profession lib´erale elle peut accorder a` des organes professionnels dot´es de la personnalit´e civile le pouvoir de prendre des r`eglements’). 2 M. Thewes, La profession d’avocat au Grand-Duch´e de Luxembourg, Brussels: Larcier, 2010, nos 143–8. 3 ‘L’avocat est soumis au secret professionnel conform´ement a` l’article 458 du code p´enal.’ The Penal Code (Code p´enal) was originally enacted in 1879 and was modelled on the Belgian Code of 1867.

333

Professional secrecy of lawyers in Europe

According to the Standing Rules of the Luxembourg Bar Association, the duty of professional secrecy applies to all information concerning the client and the client’s affairs which are brought to the lawyer’s knowledge by the client or which the lawyer learns in the context of practising his profession, regardless of the source of this information. The duty of professional secrecy also applies to all documents and communitions emanating from the lawyer as legal adviser or as well as when he is representing or assisting his client in court.4

The Standing Rules contain a list of documents and materials that are ‘particularly’ confidential: (i) legal advice given to the client, (ii) correspondence exchanged between the client and the lawyer, as well as that exchanged between the lawyer and colleagues, (iii) notes taken by the lawyer while meeting with the client and more generally all information and confidences received by the lawyer in the exercise of the profession, (iv) the clients name(s), (v) the lawyer’s calendar and (vi) the financial dealings between the lawyer and the client (Art. 7(1)(2)). Above all, lawyers are under a duty to keep their dealings with their clients a secret. A lawyer would violate the professional secret were he/she to reveal the contents of letters received from or sent to a client, or legal advice given to him or her or even the topics of conversations that took place between them. 4. The duty is not limited to information that the lawyer has received from the client. In 1976, the Luxembourg Court of Appeals held that ‘the duty to protect professional secrecy extends to any fact that the confidant has learnt because of his status or his/her profession. It covers everything seen, known, learnt, found, discovered or even overheard in the course of exercising one’s profession.’5

C

Persons subject to the duty of professional secrecy 5. The rules governing the legal profession in Luxembourg apply to all the lawyers admitted to one of the Bars of the Grand Duchy of Luxembourg.6 The rules regarding the legal professional privilege are identical for senior lawyers 4 Article 7(1)(4) of the Standing Rules, as amended by the Luxembourg Bar Association on 9 January 2013. Prior to this reform, the rule was exactly the contrary. The standing Rules of the Bar Association were amended in 2005 to explicitly state that the client cannot release his lawyer from the obligation to keep the information he received confidential: ‘A lawyer may not be relieved from the professional secret by his client, nor by any authority or person’ (Article 7(1)(3) of the 2007 Standing Rules). Before 2005, the rule was that a client could relieve lawyer from the professional secret but that the lawyer could still refuse to reveal the information. 5 Luxembourg Court of Appeals, 3 November 1976, Pas. lux., t. 23, 469. The quoted appeal judgment dealt with the professional secrecy of a doctor, but the same principles apply to the legal profession. 6 There are only two Bars in Luxembourg. One is established in the capital city of Luxembourg, the second, much smaller one, in the northern city of Diekirch.

334

Luxembourg

(Avocat a` la Cour) and trainee lawyers (Avocat or Avocat stagiaire) and they also apply to lawyers admitted in Luxembourg under their home title and even to lawyers who only occasionally practise in Luxembourg. In-house lawyers employed by corporations or public entities are not regulated by the 1991 Law on the Profession of Lawyer. They may, however, be subject to a different set of confidentiality rules, based on the nature of their employment and the status of their employer. 6. The lawyer’s clients are not bound by the rules of professional secrecy, meaning that clients are free to reveal any information that they have given to their lawyer. It should be noted, however, that even after the client has revealed such information, the lawyer remains bound by the professional secret, which implies that he may not testify to confirm the client’s affirmation. 7. According to the case law of the disciplinary jurisdiction,7 lawyers must also fully comply with the rules of the profession if they are appointed by a court as receivers or liquidators. This position is, however, somewhat controversial, and on occasion not recognised by judges who insist that lawyers appointed to such roles should be exempted from some of their ethical duties in order to fulfil their mission.

D

Limitations and derogations 8. The Bar’s Standing Rules solemnly declare that ‘the professional secrecy of the lawyer is a matter of public order’ and that it is ‘general, absolute and not limited in time’ (Art. 7(1)). 9. Despite this strong language, it is accepted that there may be situations where the lawyer may disclose privileged information to prevent even greater harm. This may be the case if, e.g., a person’s life or health is endangered. It is also recognised that lawyers may reveal secret information if facing criminal prosecution or if his/her professional liability is sought, but only to the extent that it is strictly necessary for their defence (Art. 7(1)(4) of the Standing Rules). This exception also applies if the lawyer’s fees are challenged by the client since the professional will otherwise be unable to prove that his fees are justified. When dealing with the Bar Association, lawyers are also not bound by professional secrecy and they can therefore reveal to the Bar authorities, in particular to the president of the Bar Association, information that would normally be confidential. 10. The Standing Rules were amended in January 2013 to allow the lawyer to reveal information covered by professional secrecy if the client allows it. 7 Disciplinary and Administrative Council, 16 May 2002.

335

Professional secrecy of lawyers in Europe

The new rule states that ‘the lawyer can reveal information that is covered by professional secrecy once he/she has determined that such a revelation is in the client’s interest and if the client has authorised it, having obtained information from the lawyer on the nature of the information that is revealed and on receipt of the information’.8

E

Law firms 11. Luxembourg lawyers can practise as individuals or by setting up a corporation,9 including a company with a single shareholder. It is also possible for individual lawyers to form a firm without setting up a company. The terms of their association must be agreed in a written contract, a copy of which must be filed with the Bar Association within fifteen days of the formation of the firm. A lawyer who is a shareholder in a corporation or a partner in a firm formed by contract may still practise under their own name. The law states, however, that an individual lawyer may only be a member of a single law firm, regardless of whether that firm is incorporated or formed by contract (Art. 8(10) Law on the Legal Profession). 12. The professional secret is shared within the law firm and all the members of the firm are deemed to have collectively received the confidential information. The Standing Rules of the Bar explicitly state in this respect that ‘the professional secret extends to all the lawyer’s partners’ (Art. 7(1)(8)). This rule only applies to partnerships. Lawyers who have set up a cost-sharing structure but not declared to the Bar Association a partnership must take adequate steps to protect the confidential information they receive from their clients. Sharing the information is only allowed if it is in the interest of the client.10

F

Legal assistants and staff 13. For the other members of the firm – associates and more generally the law firm’s staff – the Standing Rule is that ‘the lawyer will ensure that 8 ‘Le secret professionel s’applique a` toutes les informations au sujet du client et des affaires de celui-ci qui sont port´ees a` la connaissance de l’avocat par le client, ou dont l’avocat rec¸oit connaissance dans l’exercice de sa profession, et peu importe la source de ces informations. Le secret professional s’applique e´ galement a` tous les documents et communications e´ manant de l’avocat tant dans son activit´e de conseil juridique que le repr´esentation et d’assistance en justice de son client’ (Article 7(1)(3) of the Standing Rules, as amended by the Luxemburg Bar Association on 9 January 2013). 9 The 1991 Law was amended, to allow the setting up of a corporation, by a Law of 16 December 2011 on the practice of the legal profession in the form of a corporation, Mem. A, 2011, 4946. 10 Thewes, La profession d’avocat au Grand-Duch´e de Luxembourg, nos 351–3; Toinon Hoss, ‘L’avocat et le r´eviseur d’entreprises: confidents n´ecessaires et droit luxembourgeois et en droit communautaire, Annales du droit luxembourgeois, 7 (1997), nos 263–5.

336

Luxembourg

his associates and the staff of his law office respect the professional secret’ (Art. 7(1)(7)). Staff working for a lawyer are not directly under the duty to respect professional secrecy, but their employment contracts will usually contain a specific clause to this effect. The standing orders of the Bar Association insist that ‘the lawyer must make certain that those working with him and for him respect the professional secret’ (Art. 7(1)(7)).

G

External service providers 14. The Bar’s Standing Rules, which previously did not contain any explicit rules in this regard, were amended in 2013 to clarify that the lawyer must ensure that ‘any person he/she co-operates or collaborates with in his/her professional activity complies with professional secrecy’ (Art. 7(1)(4)). It should be noted that Luxembourg lawyers cannot rely solely on external service providers. The Standing Rules require that any lawyer established in Luxembourg must have ‘an infrastructure that enables him/her to comply with his/her legal and regulatory duties’ (Art. 1.2 of the Standing Rules). The Bar Association has been known to visit premises of law firms to verify that they are in compliance with that requirement (e.g. that the offices are not shared with professionals who are not admitted to the Bar, such as accountants or trustees). Also, in 2002 the president of the Luxembourg Bar sent a circular to all its members disallowing the use of freelance secretarial services.

H

Multidisciplinary associations 15. Lawyers admitted to one of the Luxembourg bars are prohibited, by law, from forming associations with other professionals.

2

History 16. The idea that certain professions are subject to professional secrecy has always existed in Luxembourg. It was recognised even before Luxembourg’s independence in 1839 by Article 378 of the French Penal Code, which remained in force in the newly independent Luxembourg until the adoption, in 1879, of the Penal Code that is still in force today. Even though lawyers are not explicitly mentioned in either of these legal texts, it has never been disputed that they are obliged to keep information obtained from their clients secret.11 11 Numa Wagner, ‘Le secret professionnel en droit luxembourgeois’, Travaux de l’association Henri Capitant, 1974, XXV, 131; Numa Wagner, ‘Le secret professionnel en droit luxembourgeois’, in Diagonales a` travers le droit luxembourgeois: Livre jubilaire de la Conf´erence

337

Professional secrecy of lawyers in Europe

It is, however, only since 1991 that the law has explicitly stated that ‘Lawyers are subjected to a professional secrecy in accordance with Article 458 of the Penal Code.’

3

Supervision

A

The Bar Associations 17. Attorneys in Luxembourg exercise a liberal and independent profession (Art. 1 Law on the Profession of Lawyer). Within the limits of their professional ethics, lawyers must always act in the best interest of their clients. Before being admitted to the Bar, lawyers give an oath in which they ‘pledge allegiance to the Grand Duke, obedience to the Constitution and laws of the State, not to deviate from the respect due to courts, not to advise or defend any cause [they] would not believe to be just in [their] soul and consciousness’ (Art. 6(2) Law on the Profession of Lawyer). By law, ‘in the exercise of his profession, the lawyer is master of his means’ (Art. 33 Law on the Profession of Lawyer), and ‘the lawyer shall freely exercise his ministry for the defence of justice and truth’. The legal profession is largely self-regulated. The 1991 Law on the Profession of Lawyer has granted the Bar Associations the power to adopt professional rules on, among other topics, the attorney–client privilege (Art. 19(2) Law on the Profession of Lawyer). The president and the Bar Council ensure that the members of the Bar observe those rules (Art. 17 Law on the Legal Profession). The Bar Council can deliver injunctions to individual lawyers, ordering them to comply with the Standing Rules and the ethical principles of the profession,12 and can initiate proceedings against those who do not.13

B

The courts 18. As a profession, lawyers are not under the supervision of the courts. If a jurisdiction is unsatisfied with a lawyer’s attitude towards it or his professional ethics, it can file a complaint with the Bar Association. As individuals, lawyers can, of course, appear before the ordinary courts in civil, administrative and criminal matters.

St.-Yves, Imprimerie Saint-Paul, Luxembourg, 1986, 901; Hoss, ‘L’avocat et le r´eviseur d’entreprises’. 12 Disciplinary and Administrative Council, 15 July 1999. 13 An injunction is not a precondition for disciplinary action.

338

Luxembourg

4

Sanctions

A

Disciplinary proceedings and sanctions 19. The disciplinary procedure is organised by the 1991 Law on the Profession of Lawyer, as amended.14 Investigations of disciplinary breaches are conducted by the president of the Bar Association or by a member of the Bar Council designated by the president. An investigation can be opened after a complaint has been received, or at the president’s initiative. If necessary, the president can ask for the assistance of the police. The results of the investigation are brought before the Bar Council, which decides whether or not the lawyer should be prosecuted. If so, the case is brought before a Disciplinary and Administrative Council (Conseil disciplinaire et administratif), where the lawyer will be heard. The members of the Disciplinary and Administrative Council are elected by the General Assembly of the Bar every two years. They are all lawyers admitted to one of the Bars of the Grand Duchy of Luxembourg.15 An appeal against the judgment of the Disciplinary and Administrative Council can be filed before the Disciplinary and Administrative Appeals Council (Conseil disciplinaire et administratif d’appel), where the lawyer will again be heard. The majority of the members of the appeals jurisdiction, including its president, are professional judges. 20. The disciplinary sanctions that can be imposed are: (i) a warning, (ii) a reprimand, (iii) a fine of less than €500, (iv) a fine of between €500 and €20,000, (v) a suspension from the practice of law for a period of up to five years or (vi) a lifelong prohibition to exercise as a lawyer (Art. 27 Law on the Legal Profession).

B

Criminal proceedings and sanctions 21. The maximum sanction for a violation of professional secrecy is a prison sentence of between eight days and six months and a fine of between €500 and €5,000. The criminal court (tribunal correctionnel) has competence and the judgment can be appealed. Under the terms of Article 18 of the Penal Code, however, a professional ban of up to five years may be substituted with a prison term if the judges find that the perpetrator ‘knowingly made use of an advantage made available to him/her because of his/her professonal activity’. 14 The 1991 Law was amended by a Law of 16 December 2011 to clarify that the disciplinary rules also apply to law firms set up as corporations. 15 Even though there are two Bars – one in the capital city of Luxembourg, the other in the northern city of Diekirch – there is only one disciplinary tribunal for the whole country.

339

Professional secrecy of lawyers in Europe

C

Civil proceedings and damages 22. A lawyer who violates secrecy commits a breach of contract, and professional responsibility can be incurred. If the client can prove that they suffered a loss as a direct consequence of the lawyer’s indiscretion, damages can be awarded. Small claims valued at under €10,000 can be brought before the smallclaims court (justice de paix). Jurisdiction for claims amounting to a higher amount is with the district court (tribunal d’arrondissement). The judgment can be appealed.16

D

Relationship between criminal sanctions and disciplinary sanctions 23. Criminal and disciplinary sanctions are seen as independent of each other. Criminal law and disciplinary law are independent; the double-jeopardy rule (ne bis in idem) does not preclude the same behaviour from being sanctioned both criminally and on a disciplinary level.17

5

Duty to provide information to the authorities 24. The 2004 Law on Fighting Money Laundering and Financing of Terrorism (Loi modifi´ee du 12 novembre 2004 relative a` la lutte contre le blanchiment et contre le financement du terrorisme) imposes specific duties on lawyers who, first, are assisting their clients in (i) transactions relating to the acquisition or sale of real property or companies; (ii) the management of funds, securities or other assets belonging to the client; (iii) the opening or management of bank accounts, savings accounts or securities accounts; (iv) the organisation of contributions necessary for the incorporation and management of companies; and (v) the incorporation, domiciliation or management of companies, trusts or fiduciary or similar legal constructions, and, second, are acting on behalf of clients in financial transactions or transactions relating to real property.18 Lawyers who are active in this area have a duty to identify their clients and the persons representing their clients, as well as to determine the ultimate economic beneficiaries of any operation that they are involved with. They must strive to understand their client’s dealings. The results of these verifications must be documented and the documentation must be kept up to date. Should the lawyer suspect that money laundering or financing of terrorism may have occurred or that such an act is being planned, he or she has a duty 16 If the claim is for no more that €2,000 the judgment given in the first instance cannot be appealed. 17 Disciplinary and Administrative Council, 30 March 1995. 18 Article 2(12) of the 2004 Law on Fighting Money Laundering and Financing of Terrorism.

340

Luxembourg

to immediately inform the president of the Bar Association, who will advise the public prosecutor’s office if required under the terms of the 2004 Law on Fighting Money Laundering and Financing of Terrorism. The duty to inform the president does not apply if the lawyer’s suspicion arises while he is (i) giving legal advice to the client, (ii) assessing the client’s legal situation or (iii) defending or representing that client in judicial proceedings, including in connection with advice on how to initiate proceedings or how to avoid litigation, regardless of whether the relevant information is received or obtained before, during or after the procedure.

6

Treatment of a lawyer’s documents and correspondence in the context of judicial investigations 25. Documents covered by the attorney–client privilege cannot be used in a judicial investigation. The only exception to this rule would be if the document itself is a material element in the crime that is being investigated. It is irrelevant in this context whether the document is found at the lawyer’s office or at the client’s office or home.

7

Search of a lawyer’s office 26. Article 35(1) of the 1991 Law on the Profession of Lawyer states that ‘the workplace of the lawyer . . . shall be inviolable’. Searches of lawyers’ offices may still be carried out, but the courts apply higher standards when verifying that such a measure is justified. This is illustrated by a recent decision of the Court of Appeal which invalidated a search order because the judge had not sufficiently determined the objective of the investigation: by ordering a search without determining precisely what type of documents he wanted seized, the judge did not take all necessary measures to ensure that professional secrecy is protected. The decision in question has in fact not sufficiently identified the scope of the search to prevent the risk of materials that are unrelated to the facts under investigation being seized.19 19 ‘En ordonnant ainsi une perquisition sans circonscrire de fac¸on pr´ecise la limite de la saisie a` op´erer, le juge d’instruction n’a pas provoqu´e toutes les mesures utiles pour faire assurer le secret professionnel. La d´ecision incrimin´ee n’a en effet pas cern´e a` suffisance la port´ee du devoir d’instruction a` caract`ere coercitif ordonn´e dans le cabinet d’avocat afin d’´eviter la saisie de pi`eces contenant des renseignements e´ trangers aux faits faisant l’objet de l’instruction, mais concernant des clients de l’avocat non vis´es par l’information ouverte en cause ainsi que les correspondances e´ chang´ees avec ces clients, et de limiter ainsi la saisie aux seuls e´ l´ements de preuve susceptibles d’´elucider le fait en instruction.’ Luxembourg Court of Appeals, 27 January 2009, no 56/09.

341

Professional secrecy of lawyers in Europe

If a search is to be conducted in a lawyer’s office (or at his home), the president of the Bar Association must be informed beforehand and is allowed to be present or to delegate a representative.20 Any comments made by the president of the Bar Association or his representative concerning the safeguarding of confidentiality must be recorded in the minutes of the search. Even though it is not a legal requirement, the magistrate who has ordered the search is usually present himself.

8

Tapping of telephone conversations with a lawyer 27. Article 35(1) of the 1991 Law on the Legal Profession protects ‘the secrecy of communications, by any means whatsoever, between the lawyer and client’ and declares that it is ‘inviolable’. Telephone conversations between lawyer and client can therefore not be tapped, unless the lawyer him- or herself is suspected of criminal activity. In such a case, the president of the Bar or a representative of the president must be present during the tapping.21 If a privileged telephone conversation is intercepted by accident, e.g. if the client’s phone is being tapped, the recording must be destroyed.22

9

The lawyer as witness 28. The lawyer who is called as a witness must decide whether the facts that he or she is asked to testify on are covered by professional secrecy. If they are, the lawyer may refuse to give evidence, citing the attorney–client privilege, and the court cannot compel the lawyer to testify.23 Given that Article 458 of the Penal Code explicitly exempts those who have been ‘called to give evidence in court’ from prosecution, a lawyer who discloses information covered by professional secrecy while testifying is exempt from criminal prosecution. He or she may, however, still face disciplinary sanctions.

10

The lawyer and the press 29. Lawyers may find themselves in a situation where they have to speak to the press. The Bar Association’s Standing Rules previously contained explicit rules on interviews and press conferences, but these were struck in 2013. 20 Article 35(3) of the 1991 Law on the Profession of Lawyer. The president is not informed beforehand where the search is to take place. He is asked to come to the courthouse or to an agreed meeting point. 21 Article 88-1 of the Code of Criminal Procedure (Code d’instruction criminelle). 22 Article 88-2 of the Code of Criminal Procedure. 23 Luxembourg Court of Appeals, 7 November 1976, Pas. lux., 23, 469.

342

Luxembourg

The Standing Rules now simply state that ‘when a lawyer deals with the media, he/she must respect the principles and the rules of the profession and investigation secrecy’ (Art. 6.1).

11

Powers of the tax administration and other authorities

A

Tax investigations concerning the lawyer’s client 30. Lawyers can refuse to give information to tax authorities investigating their clients. There is no provision in the law that would exempt lawyers from professional secrecy as the information is covered by professional secrecy.

B

The lawyer’s own tax obligations 31. Lawyers are, of course, not exempted from filing tax reports and paying taxes. However, the courts have accepted that, in order to protect professional secrecy, the names of the clients may be blacked out on documents, such as bank statements, that a lawyer files with a tax report.24

12

State security service 32. The Luxembourg State Intelligence Service25 can intercept communications of any kind only on orders from the Prime Minister and with the approval of a special commission comprising three of the Grand Duchy’s highest-ranking magistrates.26 Investigations concerning a lawyer are not explicitly prohibited and the investigations conducted by the Intelligence Service do not appear to fall within the scope of Article 35(1) of the 1991 Law on the Profession of Lawyer. However, Article 88-4 of the Criminal Procedure Code states that communications with persons who are held to professional secrecy and who are not suspects themselves may not be used and must be immediately destroyed. 24 Administrative Court of Appeals, 19 May 2009, no 25152C. Unsurprisingly, the court in this case did not accept the lawyer’s position that he should be allowed to file only a listing of the fees he earned. The court found this to be excessive and noted that filing blacked out documents satisfied the requirements of the tax office while respecting the professional secret. 25 Law of 15 June 2004 organising the State Intelligence Service (Service de renseignement de ´ l’Etat), Mem. A, 2004, 1738. 26 Article 88-3 of the Criminal Procedure Code, as amended. If the matter is urgent, the Prime Minister can order the investigation to start immediately, but he must then immediately inform the special commission.

343

22 Malta max ganado, christine borg, thomas cutts-watson Ganado & Associates, Advocates

Preliminary note 345 1 Scope of and limitations on professional secrecy 345 A Statutory basis and implications 345 B Scope 349 C Persons subject to the duty of professional secrecy 351 D Limitations and derogations 353 E Law firms 358 F Legal assistants and staff 358 G External service providers 358 H Multidisciplinary associations 359 2 History 359 3 Supervision 360 A The bar associations 360 B The courts 360 4 Sanctions 360 A Proceedings and sanctions 360 a Disciplinary proceedings and sanctions 360 b Criminal proceedings and sanctions 362 c Civil proceedings and damages 362 B Relationship between criminal sanctions and disciplinary sanctions 362 5 Duty to provide information to the authorities 362 A Money laundering and terrorism 362 B Collective settlement of debts 363 6 Treatment of a lawyer’s documents and correspondence in the context of judicial investigations 363 7 Search of a lawyer’s office 364 8 Tapping of telephone conversations with a lawyer 364 9 The lawyer as witness 364 10 The lawyer and the press 365 11 Powers of the tax administration and other authorities 365 12 State security service 365

344

Malta

Preliminary note 1. Under Maltese law, a person can only exercise the profession of advocate if he or she has a warrant granted by the president of Malta. A person is only entitled to obtain this warrant if he is of good conduct and good morals; is a citizen of Malta or of a Member State of the European Union or is otherwise permitted to work in Malta under any law; has obtained the academic degree of doctor of law from the University of Malta or a comparable degree from another competent authority, having studied law in Malta or in a Member State; has regularly attended, for a period of not less than one year, at the office of a practising advocate of the Bar of Malta, and at the sittings of the superior courts; possesses a full knowledge of the Maltese language which is the language of the courts; and has been duly examined and approved by two judges who shall issue a certificate attesting that they have found him to possess the qualifications above-mentioned and that he is competent to exercise the profession of advocate in the courts of Malta.1 This chapter focuses on the duty of professional secrecy under Maltese law.

1

Scope of and limitations on professional secrecy

A

Statutory basis and implications 2. The disclosing of professional secrets is sanctioned by Article 257 of the Criminal Code, Chapter 9, Laws of Malta. It is an offence for any person, who by reason of his calling, profession or office, becomes the depositary of any secret confided in him, to disclose such secret (except when compelled by law to give information to a public authority). The Criminal Code establishes that such a person shall, on conviction, be liable to a fine (multa) not exceeding €46,587.47 or to imprisonment for a term not exceeding two years or to both such fine and imprisonment.2 The main point of reference regarding the duty of professional secrecy in Malta is the Professional Secrecy Act, Chapter 377, Laws of Malta. This Act states that a professional secret refers to information which falls under any of the following categories: (a) information which is to be considered secret under a specific provision of any law;

1 Art. 81 Code of Organisation and Civil Procedure, Chapter 12 Laws of Malta. 2 A fine (multa) is one of the punishments which can be awarded for crimes. Unless otherwise specifically provided, the maximum fine which can be awarded is €1,164.69 and the minimum is €23.29. If the fine is not paid within the specified time period, such fine shall be converted into imprisonment at the rate of one day for every €11.65. Certain limitations apply.

345

Professional secrecy of lawyers in Europe

(b) information which is described as secret by the person communicating the information to a person falling within the scope of Article 257 of the Criminal Code;3 (c) information which has reasonably to be considered as secret in view of (i) the circumstances in which the information has been communicated and received; (ii) the nature of the information; and (iii) the calling, profession or office of the person receiving the information, and of the person giving the information, where applicable. The Act also lists those persons who, by reason of their calling, profession or office are bound by professional secrecy. These include members of a profession regulated by the Medical and Kindred Professions Ordinance, advocates, notaries, legal procurators, social workers, psychologists, accountants, auditors, employees and officers of financial and credit institutions, trustees, officers of nominee companies or licensed nominees, persons licensed to provide investment services under the Investment Services Act, stockbrokers licensed under the Financial Markets Act, insurers, insurance agents, insurance managers, insurance brokers, insurance sub-agents, and officials and employees of the state.4 This is a non-exhaustive list. The Professional Secrecy Act not only explains the duty of professional secrecy but also contains dispositions regarding, inter alia, the authorisation to disclose, permitted disclosures and disclosures compelled by law. This Act, however, did not consolidate all the provisions relating to professional secrecy and numerous other provisions can be found in other laws such as the Criminal Code (Chapter 9, Laws of Malta), the Code of Organisation and Civil Procedure (Chapter 12, Laws of Malta), the Income Tax Act (Chapter 123, Laws of Malta), the Investment Services Act (Chapter 370, Laws of Malta), the Banking Act (Chapter 371, Laws of Malta), the Financial Markets Act (Chapter 345, Laws of Malta), the Insurance Business Act (Chapter 403, Laws of Malta), the Financial Institutions Act (Chapter 376, Laws of Malta) and others. The Professional Secrecy Act clearly applies to advocates who definitely fall within the category of persons who, by reason of their calling, profession or office, become the depositaries of secrets. In case of disclosure, however, members of the legal profession cannot claim some of the defences granted to other persons. For example, they cannot claim that disclosure was made to a competent public authority in Malta or outside Malta investigating any act or omission committed in Malta which constitutes, or if committed outside Malta would in corresponding circumstances constitute, a drug or money-laundering offence (Art. 257 Criminal Code, Chapter 9, Laws of Malta). 3 A person who by reason of his calling, profession or office becomes the depositary of any secret confided in him or her. 4 Art. 3(1) Professional Secrecy Act, Chapter 377 Laws of Malta.

346

Malta

Under Maltese law, legal professional privilege is specifically regulated by Article 588(1) of the Code of Organisation and Civil Procedure and Article 642(1) of the Criminal Code. Article 588(1) establishes that an advocate or legal procurator may not be questioned on circumstances stated by the client in professional confidence in reference to the cause without the consent of the client. Article 642(1) also establishes that advocates and legal procurators may not be compelled to depose regarding circumstances which came to their knowledge from the professional confidence which parties placed in their assistance or advice. The court cannot compel the advocate to disclose secret information in such cases. This will be discussed in more detail below. 3. Legal professional privilege in judicial proceedings is essential for the proper administration of justice and the guarantee of a fair hearing. The basis can be found in the Constitution of Malta. Article 38(1) of the Constitution (Protection of Privacy of the Home or Other Property) establishes that except with his or her own consent or by way of parental discipline, no person shall be subjected to the search of his or her person or property or to the entry by others on his or her premises. The article lists exemptions to this protection. Article 39(1) of the Constitution (Right to a Fair Hearing) establishes that whenever any person is charged with a criminal offence he shall, unless the charge is withdrawn, be afforded a fair hearing within a reasonable time by an independent and impartial court established by law. In addition reference is made to the European Convention on Human Rights, Article 6, which provides that everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Every person has the right to legal assistance of his own choosing. Reference is also made to Article 8, which provides that everyone has the right to respect for his or her private and family life, home and correspondence.5 The Code of Ethics and Conduct of Advocates provides furthermore that besides ‘being bound by professional secrecy, an advocate is under a duty to keep confidential the affairs of clients and to ensure that his or her staff do the same’.6

5 Reference in this case should be made to the following European Court of Human Rights decisions which establish that an infringement of the legal professional privilege may constitute a breach of an individual’s right to privacy: Schonenberger and Durmax v. Switzerland (Court (Chamber) dated 20 June 1988) [Application no 11368/85]; Campbell v. The United Kingdom (Court (Chamber) dated 25 March 1992) [Application no 13590/88]; Niemietz v. Germany (Court (Chamber) dated 16 December 1992) [Application no 13710/88]; Foxley v. The United Kingdom (Court (Third Section, Chamber) dated 20 June 2000) [Application no 33274/96]. 6 Rule 1, Chapter VI, Code of Ethics and Conduct of Advocates, www.avukati.org/ chamberofadvocates/downloads.aspx.

347

Professional secrecy of lawyers in Europe

Rule 4 of the Code also establishes that The duty to keep a client’s matters confidential, as opposed to what applies to the duty of professional secrecy, can be overridden in certain exceptional circumstances and shall include those cases in which an advocate is required to disclose confidential information in terms of law; and those cases in which such disclosure is essential for an advocate to defend him/ herself in any proceedings taken against him/her by or on the complaint of a client or a former client in which event the disclosure shall be limited to what is indispensable for the advocate to defend him-/herself.7

4. The duty of professional secrecy is essential for the client to be guaranteed the right to a fair hearing. The client should be able to talk to his or her advocate freely without fearing that this advocate will divulge information told in confidence. This is why advocates are subject to strict duties of professional secrecy. In this case, the absolute protection of the secrecy of private information about an individual is considered to prevail over the interest of society in general.8 However, there are certain instances in which the advocate will be obliged to disclose information. In such instances, the public interest supersedes the private interest of the client. The advocate must, however, be very careful prior to disclosing the secret information as he or she will not be guilty of a breach of professional secrecy only if there is a statutory disposition which obliges disclosure. Therefore he or she must ensure that the obligation to disclose the secret information actually exists and that the person requesting this information actually has the authority to do so. 5. The advocate’s obligation to keep information provided by the client secret arises from the law itself, namely the Professional Secrecy Act and the Criminal Code. Legal professional privilege is also regulated by the Code of Organisation and Civil Procedure. The Code of Ethics and Conduct of Advocates also establishes that an advocate is under a duty to keep confidential the affairs of clients. This duty of professional secrecy may furthermore be contractually defined in a letter of engagement signed by the advocate and his or her client. Advocates are bound to keep information secret not because of any action taken by the client – the client does not necessarily have to expressly prohibit the advocate from disclosing the information.

7 Chapter VI Code of Ethics and Conduct of Advocates, www.avukati.org/chamberofadvocates/ downloads.aspx. 8 Max Ganado and Henry Saydon, ‘Confidentiality’, in An Introduction to Maltese Financial Services Laws, Malta: Allied Publications, 2009, 303.

348

Malta

6. Advocates may not be questioned on circumstances which were stated by their client in professional confidence in reference to the cause, unless the client consents to such disclosure. They cannot even be ordered by the court to do so. There does not appear to be any precedent regarding the validity or otherwise of the use of information which was obtained through a breach of professional secrecy.

B

Scope 7. Items subject to legal privilege are defined in Article 350(1) of the Criminal Code, which states: ‘items subject to legal privilege’ means any communication between a professional legal adviser and his or her client or any person representing his or her client and any document or record enclosed with or referred to in such communication and made in connection with the giving of legal advice or in connection with or in contemplation of legal proceedings and for the purposes of such proceedings, but the expression does not include items held with the intention of furthering a criminal purpose.

Legal professional privilege under Maltese law arises from Article 588(1) of the Code of Organisation and Civil Procedure and Article 642(1) of the Criminal Code. Article 588(1) of the Code of Organisation and Civil Procedure provides: No advocate or legal procurator without the consent of the client, and no clergyman without the consent of the person making the confession, may be questioned on such circumstances as may have been stated by the client to the advocate or legal procurator in professional confidence in reference to the cause, or as may have come to the knowledge of the clergyman under the seal of confession or loco confessionis.9

Article 642(1) of the Criminal Code provides that ‘Advocates and legal procurators may not be compelled to depose with regard to circumstances knowledge whereof is derived from the professional confidence which the parties themselves shall have placed in their assistance or advice.’10 There are conflicting opinions regarding these two articles. The first view is that all information received by an advocate in professional confidence is privileged and that the advocate cannot be compelled, not even by a court of law, to disclose such information. Advocates who support the second view maintain that these two articles apply where the advocate is providing 9 Authors’ emphasis.

10 Authors’ emphasis.

349

Professional secrecy of lawyers in Europe

assistance in the case of judicial proceedings.11 This position seems to be consistent with that of the European Court of Justice in AM&S Europe Limited v. Commission:12 Apart from these differences, however, there are to be found in the national laws of the member states common criteria inasmuch as those laws protect, in similar circumstances, the confidentiality of written communications between lawyer and client provided that, on the one hand, such communications are made for the purposes and in the interests of the client’s rights of defence and, on the other hand, they emanate from independent lawyers, that is to say, lawyers who are not bound to the client by a relationship of employment.

In other cases, the advocate is still bound by professional secrecy under Article 257 of the Criminal Code and Article 3(1) of the Professional Secrecy Act, both mentioned above. The supporters of the second view claim that even though communications between an advocate and a client would still be subject to professional secrecy, this is subject to legal exceptions. (In a context of proceedings this is an almost absolute obligation to which there are no or few exceptions.) An example of this can be found in Article 6(B) of the Professional Secrecy Act: Saving the provisions of Article 642(1) of the Criminal Code and of Article 588(1) of the Code of Organisation and Civil Procedure, a person shall disclose information otherwise covered by professional secrecy when required to do so: (a) by a competent law-enforcement or regulatory authority investigating a criminal offence or a breach of duty; (b) by a magistrate in the cause and for the purposes of in genere proceedings; and (c) by a court of criminal jurisdiction in the course of a prosecution for a criminal offence.

The proponents of the second view maintain that any information in the advocate’s possession which is not connected to any judicial proceedings would have to be disclosed. What is clear is that an advocate or legal procurator may only be questioned on such circumstances as may have been stated by the client in professional confidence in reference to the cause with the consent of the client. This shows that the client can release the advocate or legal procurator from the duty of professional secrecy. In fact, it is a defence to a charge of disclosing secret 11 Reference should in this case be made to the words ‘in reference to the cause’ in Art. 588(1) Code of Organisation and Civil Procedure. 12 AM&S Europe Limited v. Commission (C-155/79), dated 18 May 1982.

350

Malta

information to show that the secret information was revealed with the authorisation of the person who entrusted such information. 8. Some maintain that the duty of professional secrecy only arises when the advocate is performing his or her functions as advocate. If such advocate is not exercising the legal profession but is rather performing other functions, he or she is not necessarily bound by the duty of professional secrecy. Therefore, if an advocate is acting as a trustee or as a company director, one has to examine the provisions of law regulating trustees and company directors and not rest on the duty of professional secrecy which applies to advocates. As discussed above, information can be secret either because it is considered secret under a specific provision of any law (objective test) or because it is described as such by the person communicating the information (subjective test). The third test is a mix of both the objective and the subjective tests: information which has reasonably to be considered secret due to the circumstances in which it has been communicated and received, due to its nature or due to the calling, profession or office of the person receiving or giving such information. There is thus no limit to what information can be considered to be secret. Therefore, even when an advocate is not exercising the legal profession but is rather performing other duties, it would be safer to assume that there is a duty of confidentiality because it is reasonable to assume that when one is speaking to an advocate, one speaks in confidence. This should always be the starting point. If the objective and subjective tests do not apply, the information may be secret under the third test if it can be reasonably considered to be so. Special attention should be therefore given in such cases.13 9. In general, any communication between advocate and client is subject to legal privilege. Such legal privilege extends to documents or records which are either enclosed with or referred to in such communications. These, however, must be made either in connection with the giving of legal advice or in connection with, or in contemplation of, legal proceedings and for the purposes of such proceedings.14

C

Persons subject to the duty of professional secrecy 10. The following persons are subject to the duty of professional secrecy under Maltese law: 1. Persons who, by reason of their calling, profession or office, become the depositaries of secret information. As mentioned above, the Professional Secrecy Act provides a non-exhaustive list of such persons, which 13 Ganado and Saydon, ‘Confidentiality’, 314–15. 14 Art. 350(1) Criminal Code, Chapter 9 Laws of Malta.

351

Professional secrecy of lawyers in Europe

2.

3.

4.

5.

includes advocates, notaries and legal procurators. The advocate’s duty of professional secrecy is also enshrined in the Code of Ethics and Conduct of Advocates also mentioned above. A breach of professional secrecy is therefore also a violation of an advocate’s ethical rules. Employers, employees, partners or assistants of persons who are bound by professional secrecy: such persons are deemed to be the depositaries of secret information by reason of their calling, profession or office (and are therefore bound by the duty of professional secrecy) when they obtain such secret by reason of being an employee or an employer, a partner or an assistant, of a person who is bound by professional secrecy. Therefore, as will be seen below, other advocates in the law firm, legal assistants and staff are also subject to professional secrecy. Employment by the state: persons who obtain secret information during the course of their employment by the state are bound by the duty of professional secrecy. Employees of the state or persons employed by the state include: (a) employees of the Government of Malta; (b) employees of any body corporate established by law; (c) any person, whether an individual or not, whether having corporate personality or not, acting as consultant or in any other similar contractual capacity with the Government of Malta or with a body corporate established by law; or (d) any person, whether an individual or not, whether having corporate personality or not, exercising functions as an official or representative of the Government of Malta or of any body corporate established by law.15 Interpreters or translators and investigators: when interpreters or translators interpret or translate the secret information they themselves become the depositaries of secret information and are bound by the duty of professional secrecy. Investigators who receive or acquire secret information either through a power of investigation or enquiry conferred by law, or by virtue of any enactment which requires information to be communicated, are the depositaries of such information and are therefore subject to the duty of professional secrecy.16

The aforementioned persons remain bound by the duty of professional secrecy even after they cease to exercise their calling, profession or office. Professional secrecy must be respected by the courts. In this case, reference must be made to the aforementioned Article 588 of the Code of Organisation and Civil Procedure and Article 642(1) of the Criminal Code, which establish that the court cannot order the advocate to disclose information stated by the client in professional confidence (see no 7 of this chapter). 15 Art. 2(2) Professional Secrecy Act, Chapter 377 Laws of Malta. 16 Art. 5 Professional Secrecy Act, Chapter 377 Laws of Malta.

352

Malta

It is interesting to point out that accountants, medical practitioners, social workers, psychologists and marriage counsellors may also not be questioned about what was stated by their client in professional confidence or which may have come to their knowledge in their professional capacity. They may, however, unlike advocates or legal procurators, be questioned about such matters on order of the court. 11. The duty of professional secrecy is a matter of public policy. It is essential for the client to be guaranteed the right to a fair hearing. The client must be free to reveal his or her own secret information to an advocate when requiring advice or a service from such advocate. He or she must be able to talk freely without fear of disclosure on the part of the advocate. The client, however, can give consent to the advocate to reveal such secret information.17

D

Limitations and derogations 12. The duty of professional secrecy is not absolute. In fact, a number of limitations (whether obligatory or permitted disclosures) have been introduced, all of which eat away at the duty of professional secrecy. These limitations, however, allow law enforcement or regulatory authorities to function. 13. A person is only deemed to be compelled by law to give information to a public authority if there is a statutory requirement to that effect.18 Therefore, in certain specified cases, a person (including an advocate) may be obliged to disclose information even if he or she is bound by professional secrecy under the Professional Secrecy Act. One such instance can be found in the Prevention of Money Laundering and Funding of Terrorism Regulations, 2008.19 These Regulations transpose the provisions of the EU’s Third Money Laundering Directive, as well as those of Directive 2006/70/EC of the European Commission, and establish the reporting procedures and obligations of subject persons. A ‘subject person’ is defined by the Regulations as any legal or natural person carrying out either relevant financial business or relevant activity.20 The professional activities of notaries and other independent legal professionals fall under the definition of relevant activity when they participate, whether by acting on behalf of and for their client in any financial or real-estate transaction

17 However, in Michele Grech v. Giuseppe Mifsud, First Hall, Civil Court, 22 November 1916, the court concluded that an advocate cannot be forced to give evidence, even with the consent of his client, if he believes that he should not divulge the information due to professional secrecy. The court concluded that this remains entirely up to the advocate’s conscience. 18 Art. 8 Professional Secrecy Act, Chapter 377 Laws of Malta. 19 S. L. 373.01 Laws of Malta. 20 Regulation 2 Prevention of Money Laundering and Funding of Terrorism Regulations, S. L. 373.01 Laws of Malta.

353

Professional secrecy of lawyers in Europe

or by assisting in the planning or execution of transactions for their clients, in the instances mentioned in the Regulations. The Regulations establish that where a subject person knows, suspects or has reasonable grounds to suspect that 1. a transaction may be related to money laundering or the funding of terrorism, or 2. a person may have been, is or may be connected with money laundering or the funding of terrorism, or 3. money laundering or the funding of terrorism has been, is being or may be committed or attempted, that subject person is obliged to make his or her findings available to the Financial Intelligence Analysis Unit. After the submission of such disclosure, the Financial Intelligence Analysis Unit (FIAU) may demand information from the disclosing or any other subject person. Notaries and other independent legal professionals are in certain cases exempt from reporting to the FIAU if the information is received or obtained in the course of ascertaining the legal position of their client or when they are performing their responsibility of defending or representing that client in, or concerning, judicial proceedings, including advice on instituting or avoiding proceedings, whether such information is received or obtained before, during or after such proceedings.21 Any bona fide communication or disclosure made by a subject person or by an employee or director of such subject person is not treated as a breach of the duty of professional secrecy or any other restriction (whether imposed by statute or otherwise) upon the disclosure of information. In fact, the subject person or the directors or employees of such subject person are not involved in any liability of any kind.22 Advocates who maintain that Article 588 of the Code of Organisation and Civil Procedure and Article 642(1) of the Criminal Code apply only where the advocate is providing assistance in the case of judicial proceedings claim that an advocate must disclose information otherwise covered by professional secrecy when required to do so by a competent law-enforcement or regulatory authority investigating a criminal offence or a breach of duty. Those who support the aforementioned view also maintain that advocates must disclose secret information pursuant to a court order. A court may authorise or order the disclosure of secret information pursuant to an express 21 Regulation 15(10) Prevention of Money Laundering and Funding of Terrorism Regulations, S. L. 373.01. 22 Regulation 15(12) Prevention of Money Laundering and Funding of Terrorism Regulations, S. L. 373.01.

354

Malta

provision of law. The court will issue such authorisation or order (i) for the specific purposes for which that provision was enacted, or (ii) for the specific purpose of preventing, disclosing or detecting the commission of acts that amount or are likely to amount to a criminal offence.23 In this case, disclosure is held in camera and is only accessible to the court and to the parties. The proponents of this theory, however, agree that a court cannot order that an advocate be questioned on circumstances told to him or her by a client in professional confidence in reference to the cause even if actual legal proceedings have not been instituted but were a consideration in the taking of the advice. In this case, the advocate may only be questioned with the consent of the client. 14. The duty of professional secrecy cannot be abused and an advocate cannot use professional secrecy to his or her advantage to hide a crime he or she has committed. Indeed, as stated in the aforementioned Article 350 of the Criminal Code, items held with the intention of furthering a criminal purpose are not subject to legal privilege and are therefore not protected. A lawyer cannot claim privilege for his or her discussions with and advice to a criminal accomplice. 15. Although there are no specific rules on this aspect, it stands to reason that professional secrecy is not breached by an advocate when he or she discloses, in good faith, secret information in the course, and for the purpose, of obtaining advice or directions from the Committee on Advocates and Legal Procurators, which is the authority which regulates the professional conduct of advocates and legal procurators. Neither can the advocate refuse to disclose information to the aforementioned Committee when it is investigating a complaint regarding his or her conduct. It is through such information that the advocate’s behaviour will be assessed and the Committee will decide whether disciplinary measures should be taken against the advocate. 16. In the event of an action brought by the client against his or her advocate, such advocate cannot refuse to answer questions on the ground of breach of the professional secrecy of that same client. Professional secrecy is a privilege which is granted not to the advocate but rather to the client so that his or her position is safeguarded. This is evident from the provision of Article 588(1), which establishes that an advocate may not be questioned on circumstances stated by the client in professional confidence in reference to the cause without the consent of the client.

23 If there is no specific provision in relation to a particular calling, profession or office, the court may release a witness in court belonging to such calling, profession or office from the duty of professional secrecy.

355

Professional secrecy of lawyers in Europe

Therefore, in such cases, the advocate cannot refuse to give evidence on the basis of a breach of professional secrecy as this privilege is due to his or her client, who in such a case is the plaintiff.24 The advocate, however, can only disclose such information in order to defend him- or herself from the plaintiff’s claims. This stems from the advocate’s right to a fair trial. In fact, the Professional Secrecy Act establishes that professional secrecy is not breached by an advocate when he/she discloses, in good faith, secret information to a public authority or before a court or tribunal to the extent that is proportionate and reasonably required for the specific purpose of (i) defending him- or herself against any claim with regard to professional work in connection with which the secret information has been obtained by him or her, or (ii) initiating and maintaining judicial proceedings seeking the recovery of fees or other sums due to him or her or the enforcement of other lawful claims or interests. 17. Information which is subject to professional secrecy can be revealed if the person who entrusts the information consents to such disclosure.25 In fact, the Code of Organisation and Civil Procedure clearly establishes that an advocate may only be questioned on circumstances stated to him or her in professional confidence in reference to the cause with the consent of the client. It is advisable that the advocate request this consent in writing. This will avoid any doubt as to the authorisation given. In the aforementioned case, the client’s consent must be express. The law, however, accepts tacit consent in the case of an advocate communicating the secret information to his/her employees, partners and assistants. Such communication, however, must be necessary for the performance of services requested by the person who entrusted the information. In this case, it is deemed that such person authorised such communication (unless he or she expressly states otherwise).26 There is no breach of professional secrecy if an advocate employed by the state communicates secret information to another person employed by the same entity or to the minister responsible for that entity, where such communication is directly necessary for the carrying out of their respective functions.27 This communication is allowed because it is viewed as necessary communication. It is important to point out that, for the purposes of the Professional Secrecy Act, bodies corporate established by law and the Department of Inland Revenue are considered to be separate entities and are separate and distinct from all other departments or divisions of the state.

24 25 26 27

356

Chev Dr Joseph Bugeja v. Alfred P. Farrugia, Commercial Court, 15 April 1991. Art. 6 Professional Secrecy Act, Chapter 377 Laws of Malta. Art. 7(1) Professional Secrecy Act, Chapter 377 Laws of Malta. Art. 11(1) Professional Secrecy Act, Chapter 377 Laws of Malta.

Malta

18. As mentioned above (see no 7) there are two views regarding the advocate’s duty of professional secrecy when giving evidence in court. These views are dependent not on whether the advocate is required to give evidence in criminal or civil proceedings, but rather on whether the advocate’s client is being advised in the context of judicial proceedings. This distinction is, however, clearly made in the law in the case of other persons who are bound by professional secrecy. Such persons must disclose information otherwise covered by professional secrecy when required to do so 1. by a competent law-enforcement or regulatory authority investigating a criminal offence or a breach of duty, 2. by a magistrate in the cause and for the purposes of in genere proceedings and 3. by a court of criminal jurisdiction in the course of a prosecution for a criminal offence.28 In such cases, disclosure would be legitimate. There is also no breach of professional secrecy when such persons disclose secret information to a competent public authority in Malta in the reasonable belief that such disclosure is reasonably necessary for the purpose of preventing, revealing, detecting or prosecuting the commission of acts that amount or are likely to amount to a criminal offence, or to prevent a miscarriage of justice.29 The court may authorise, or make an order requiring, disclosure if there is an express provision allowing this breach of confidentiality for the specific purposes for which the provision was enacted or for the specific purpose of preventing, disclosing or detecting the commission of acts that amount or are likely to amount to a criminal offence. In the civil context, therefore, it would seem that the court’s decision would have to be based on whether there is an express provision of law allowing such breach of the duty of confidentiality.30 In the absence of an express provision of law, the witness may still decide to disclose the secret to avoid a miscarriage of justice, as mentioned above. Given the serious public-policy position of the law on confidentiality, the courts should be convinced of the need for the disclosure of specific information in a specific context and for a specific purpose before issuing any disclosure order.31

28 The proponents of the second view claim that this article can, to a certain extent, also be applied to advocates. 29 Art. 6(A)(c) Professional Secrecy Act, Chapter 377 Laws of Malta. 30 Ganado and Saydon, ‘Confidentiality’, 329. 31 Ibid., 303.

357

Professional secrecy of lawyers in Europe

E

Law firms 19. An advocate will not be breaching professional secrecy if he or she communicates the secret information to another advocate in the law firm. The second advocate will him- or herself become the depositary of the secret (by reason of being a partner or assistant to the first advocate) and will therefore also be bound by professional secrecy. The person entrusting the secret information is deemed to have given tacit consent to the disclosure by the first advocate if this disclosure is necessary for the performance of services requested by him or her. The person entrusting the secret information can, however, expressly instruct the first advocate not to divulge any information to any person.32 Importance, however, must be given to the subject matter of the information. In the area of trusts, for example, information is kept secret even from other advocates working in the same firm through the creation of Chinese walls (access barriers). These barriers are also used when advocates from the same law firm represent opposing parties to ensure that one advocate does not have access to secret information about the opposing party.33

F

Legal assistants and staff 20. Under Maltese law, a person is deemed to have become the depositary of a secret, and is therefore bound by professional secrecy, if he or she obtains such secret by reason of being an employee, partner or assistant of a person who is bound by professional secrecy.34 Notwithstanding the aforementioned persons’ duty of professional secrecy, the advocate should take action to safeguard the secret information by ensuring that data, whether physical or electronic, remain secure. He or she should have a secure place in which to store physical documents and should also establish codes of conduct for his or her assistants and staff regarding secret information.35

G

External service providers 21. When law firms outsource services, the persons they engage are also bound by professional secrecy. If the person engaged is an advocate, he or she is subject to professional secrecy by reason of his or her calling, profession or office. Non-lawyers engaged to provide certain services would probably fall under the category of employees or assistants and are therefore also bound to keep information secret. However, no assumptions should be made when 32 33 34 35

358

Art. 7(1) Professional Secrecy Act, Chapter 377 Laws of Malta. Ganado and Saydon, ‘Confidentiality’, 321. Art. 4(1) Professional Secrecy Act, Chapter 377 Laws of Malta. Ganado and Saydon, ‘Confidentiality’, 308.

Malta

engaging persons and it is always safer to request that they sign a non-disclosure agreement. Interpreters and translators are specifically regulated by the Professional Secrecy Act. They are bound to keep confidential the information they acquire through the communication of the secret information. Investigators are also regulated by the Professional Secrecy Act and are also subject to the duty of professional secrecy.36

H

Multidisciplinary associations 22. In certain cases, the advocate will have to co-operate with persons who are not in the legal profession in order to be able to provide the best service to the client. Such persons may themselves be bound by professional secrecy due to their calling, profession or office. If this is not the case, the advocate should insist that a non-disclosure agreement be signed by such persons in order to expressly bind them by the provisions of the Professional Secrecy Act. In this agreement, the parties should stipulate that the information is to be kept confidential (or, in certain cases, the agreement can specify what information is to be kept confidential). This creates certainty.

2

History 23. The concept of professional secrecy as applicable to advocates is not a recent development in Malta. Advocates – alongside priests – were expressly mentioned in provisions relating to privileged communications in the Code of Organisation and Civil Procedure (the COCP),37 which was enacted in the middle of the nineteenth century. Since then, the duty of professional secrecy and confidentiality has been judicially acknowledged and protected, and the provisions in the COCP remain in force today. From a criminal law angle, the obligation of confidentiality was, and still is, embedded in Maltese law through Article 257 of the Criminal Code, which, broadly speaking, makes it an offence for professionals (including advocates) to disclose secrets and confidential information that they have received by reason of their calling, except when disclosure to public authorities is compelled by law. The Criminal Code also enshrines the concept of professional secrecy through Article 642(1), addressing the issue of professional confidence and lawyer–client confidentiality. The Professional Secrecy Act (PSA), enacted in 1994, consolidated many (though not all) of the instances of obligations of professional secrecy in other Maltese legislation (see no 2 of this chapter), its aim being not merely to clarify 36 Art. 5 Professional Secrecy Act, Chapter 377 Laws of Malta. 37 Art. 588 Code of Organisation and Civil Procedure, Chapter 12 Laws of Malta.

359

Professional secrecy of lawyers in Europe

the notion of professional secrecy but also to set minimum standards. The PSA has been seen as a form of interpretative guide to Article 257 of the Criminal Code, cross-referring to this article and laying down various exceptions to the duty of professional secrecy. To this end, the PSA now acts as the main point of reference in relation to the duty of professional secrecy in Malta.

3

Supervision

A

The bar associations 24. The two main representative bodies of lawyers in Malta are the Chamber of Advocates and the Chamber of Legal Procurators. The Chamber of Advocates is a professional, non-political NGO which brings together and represents all of the practising advocates in Malta and Gozo. Regulation of the profession is also undertaken by the Chamber of Advocates. Though it cannot instruct advocates in the handling of their cases, it is responsible for dealing with complaints made to it against advocates and refers such complaints to the Committee on Advocates and Legal Procurators, which exists within the Commission for the Administration of Justice. The Commission is discussed in more detail in no 26 of this chapter. It is the aforementioned Commission that publishes the Code of Ethics and Conduct of Advocates, detailing the ethical guidelines that advocates must take into consideration in practice. These are wide-ranging and include legal privilege and the duty of confidentiality.

B

The courts 25. Advocates must abide by the law in their dealings. The civil courts have jurisdiction to hear any claim for professional liability brought against an advocate by a client. The criminal courts have jurisdiction over crimes committed by advocates in the exercise of their profession. No special rules apply in this respect to advocates.

4

Sanctions

A

Proceedings and sanctions

a

Disciplinary proceedings and sanctions

26. The Committee on Advocates and Legal Procurators (the Committee) – a committee set up by, and under, the Commission for the Administration of Justice – is the competent authority in all matters concerning the professional conduct of advocates and legal procurators. As such, the Committee receives and is empowered to investigate complaints as to the misconduct of such legal professionals. The Committee has both the power and the duty to investigate and 360

Malta

decide upon any misconduct if it receives a complaint from any person or if the Commission for the Administration of Justice requests that an inquiry be carried out. Equally, the Committee may, of its own volition, begin investigations into alleged misconduct. Investigations or inquiries must be begun within three months of the complainant, the Commission for the Administration of Justice or the Committee becoming aware of the transgression. In any event, no proceeding may be initiated after a lapse of five years from the date of the misconduct. Advocates under investigation (as well as the complainant) have the right to be present throughout the investigative process and may also produce witnesses in their support. They may also avail themselves of the assistance of an advocate or legal procurator, if they so desire. The hearing before the Committee will be held behind closed doors unless the advocate or legal procurator being investigated requests that it be held in public. Equally, the finding of any hearing will only be delivered in public if the hearing was not held behind closed doors. Any decision of the Committee in respect of a hearing is delivered to the respective regulatory body of the lawyer complained of (the Chamber of Advocates in the case of an advocate and the Chamber of Legal Procurators in the case of a legal procurator). On the culmination of the hearing, the Committee also makes a report of its findings to the Commission for the Administration of Justice. If the Committee finds that there has been misconduct on the part of an advocate in the exercise of his profession, it may recommend that the advocate be suspended – either perpetually or for a specified period of time. It may also impose a penalty (which shall be recoverable as a civil debt) up to 10 per cent of the Attorney General’s annual salary, with the current maximum penalty thus totalling €4,311.20 (four thousand three hundred and eleven Euros and twenty cents). An advocate may also receive an admonishment from the Committee, who may make any such further recommendation to the advocate as is felt appropriate. The Committee decides on the publication (or otherwise) of the disciplinary sanction given, and is fully entitled to make such sanction public if it deems it appropriate. 27. Decisions of the Committee can be appealed to the Commission for the Administration of Justice. An appeal must be made in writing within twenty days of the notice of the decision of the Committee to which an appeal is sought. An appeal hearing date must be provided within seven days, with the date of the appeal hearing occurring within one month of the filing of the appeal. Both the lawyer in question and his or her respective regulatory body (the Chamber of Advocates or the Chamber of Legal Procurators) have the right to appeal to the Commission for the Administration of Justice. As with hearings of the Committee, appeal hearings are to be held behind closed doors unless the appellant lawyer requests otherwise. 361

Professional secrecy of lawyers in Europe

Should the appellant fail to appear at the appeal hearing without justifying such non-appearance within seven days, the appeal is deemed abandoned. Additionally, frivolous or vexatious appeals (as determined by the Commission for the Administration of Justice) may result in a maximum penalty equal to that applicable in a Committee hearing on advocate misconduct. b

Criminal proceedings and sanctions

28. Violation of legal privilege is a criminal offence and may accordingly be punished by criminal sanctions. These include a fine (multa) of up to €46,587.47 or imprisonment for up to two years, or both the fine and imprisonment.38 The court’s decision can be appealed to the competent court of appeal. c

Civil proceedings and damages

29. A breach of legal privilege will additionally be deemed a breach of contract with the client, with an award of damages available, providing that damage has been suffered by the client and all other elements of the breach are made out.

B

Relationship between criminal sanctions and disciplinary sanctions 30. Disciplinary sanctions and criminal sanctions are independent of each other and are imposed separately. In practice, any criminal sanctions against an advocate will be brought to the attention of the relevant disciplinary body, who will usually begin disciplinary proceedings in the manner set out above in no 26 of this chapter, based upon the same facts.

5

Duty to provide information to the authorities

A

Money laundering and terrorism 31. The Financial Intelligence Analysis Unit (FIAU) was set up in 2002 as a fully autonomous agency, responsible (in accordance with the Prevention of Money Laundering Act (PMLA)) for the collection, collation, processing, analysis and dissemination of information in respect of combating money laundering and the funding of terrorism. Auditors, external accountants, tax advisers, real-estate agents, trust and company service providers and other natural and legal persons trading in goods when a payment of €15,000 or more is made in cash are obliged to inform the FIAU of any transaction they suspect is related to money laundering or the financing of terrorism (Prevention of Money Laundering and Funding of Terrorism Regulations – PMLFTR). This obligation also applies to advocates – or, in the words of the PMLFTR, ‘notaries and other independent legal professionals’ – when acting for clients in financial transactions or transactions relating to real estate. The obligation 38 Art. 257 Criminal Code, Chapter 9 Laws of Malta.

362

Malta

extends to advocates who assist clients in respect of the buying and selling of property or business entities; the management of funds and assets (including client money and securities, but excluding activity undertaken under an Investment Services Act licence); the opening or management of bank or securities accounts; the organisation of contributions to the creation and operation of companies; and the actual creation, operation and management of companies, trusts or similar structures. However, the PMLFTR provides advocates with an exemption to the obligation to inform the FIAU of a suspicious transaction when specific circumstances arise. As such, an advocate who receives or obtains information that leads to knowledge, suspicion or reasonable grounds for suspicion that a client is in some way connected with money laundering or the funding of terrorism is not bound to disclose the information to the FIAU if the information in question is obtained in the course of ascertaining the legal position of the client, or through the defence or representation of the client in judicial proceedings (including advice on instituting or avoiding proceedings). This exemption applies regardless of whether the advocate receives said information before, during or after proceedings. The exemption would not extend to the situation of an advocate taking part in money-laundering activity or activity in connection with the financing of terrorism, and would not encompass an advocate providing advice on the perpetration of the money-laundering activity or the financing of terrorism.

B

Collective settlement of debts 32. Collective settlement of debts is not found to any great degree in Malta. However, legal privilege would prevail over any request to an advocate that he or she provide information as to a debtor’s assets and/or recent transactions for the purpose of third-party debt settlement.

6

Treatment of a lawyer’s documents and correspondence in the context of judicial investigations 33. A document that falls within the description of ‘items subject to legal privilege’ under the Criminal Code, in that it is any communication between a professional legal adviser and his/her client or any person representing his/her client and any document or record enclosed with or referred to in such communication and made in connection with the giving of legal advice or in connection with or in contemplation of legal proceedings and for the purposes of such proceedings[,]39 39 Art. 350(1) Criminal Code, Chapter 9 Laws of Malta.

363

Professional secrecy of lawyers in Europe

will be deemed privileged in the context of a judicial investigation. In situations where the privileged nature of a document is in question, it is common practice for such documents to be provided to the judge, who will take a decision as to whether the information is privileged or not (and thus admissible or otherwise in court). If the judge finds that the information is privileged, he is to exclude that information from his mind for the purposes of any ongoing proceedings. In this sense, it is the court that takes the final decision as to the privileged nature of documents in judicial investigations.

7

Search of a lawyer’s office 34. The search of the home or office of an advocate is not specifically governed by law. A police officer may enter any premises with or without a warrant for the purposes of a search if certain legal conditions are met. Documents that are protected by legal privilege may not be taken into possession. The PMLA makes provision for the entry of a person’s house or other premises if the Attorney General has reasonable cause to suspect that that person is in possession of material which is likely to be of substantial value to the investigation of money laundering or the financing of terrorism. However, it expressly excludes any investigation order from including access to or the search for communications between lawyer and client. To this end, legal privilege prevails against such a search order.

8

Tapping of telephone conversations with a lawyer 35. The tapping of telecommunications is prohibited, save in certain cases as envisaged in the Security Service Act. As such, the minister of the Security Service may issue a warrant authorising the tapping of telecommunications only where doing so would be substantially helpful in assisting the Security Service in respect of the protection of national security.

9

The lawyer as witness 36. The existence of legal privilege does not prohibit an advocate from being called to testify in court as a witness. However, as noted in no 2 of this chapter, the Civil Code provides that no advocate may be questioned on circumstances that may have been told to him in professional confidence by a client in relation to the client’s cause, unless the client consents to such disclosure. Indeed, the PSA specifically exempts advocates from disclosure obligations in the course of judicial proceedings where the information in question falls under Article 642 of the Civil Code, as above. Thus an advocate is not compelled to testify on issues which are protected by legal privilege.

364

Malta

10

The lawyer and the press 37. An advocate may not disclose privileged or confidential information to the press. An advocate is advised always to seek the consent of the client before making any public statements or refutations to the press, whether such statements contain legally privileged information or otherwise.

11

Powers of the tax administration and other authorities 38. The general position under Maltese law is that no tax administration or authority is entitled to compel a lawyer to disclose information which is protected by legal privilege. However, a recent amendment to the Income Tax Management Act (Chapter 372 Laws of Malta) has raised the issue of the provision by ‘designated persons’ (which term includes advocates, notaries and legal procurators) of information to the commissioner on request in respect of individuals under investigation for tax evasion. The amendment has in-built safeguards in so far as legal privilege is concerned, specifically stating that the requirement to provide information is notwithstanding ‘anything to the contrary in the Income Tax Acts, any provision of the Professional Secrecy Act, any obligation of secrecy or confidentiality, or any other restriction relating to the disclosure of information whether arising from a provision of law or any agreement or other arrangement’.40 Despite this, controversy remains over the exact scope of the amended Article 14 and advocates are accordingly advised to pay sufficient heed to these new ‘request for information’ provisions.

12

State security service 39. The Maltese Security Service is obliged to respect professional secrecy. Investigation methods, such as entry or interference with property, that violate professional secrecy are only permitted if the minister of the Security Service thinks that the action is required on the ground that it is likely to be of substantial value in assisting the Security Service in its protection of national security, and are only permitted to the extent necessary for the investigation. 40 Art. 14(3)(b) Income Tax Management Act, Chapter 372 Laws of Malta.

365

23 The Netherlands fokke fernhout Associate Professor of Law, Maastricht University

Preliminary note 367 1 Scope of and limitations on professional secrecy 368 A Statutory basis and implications 368 B Scope 371 C Persons subject to the duty of professional secrecy 373 D Limitations and derogations 376 a Limitations 377 b Derogations 379 E Law firms 379 F Legal assistants and staff 381 G External service providers 381 H Multidisciplinary associations 381 2 History 381 3 Supervision 382 A The bar associations 382 B The courts 383 4 Sanctions 383 A Proceedings and sanctions 383 a Disciplinary proceedings and sanctions 383 b Criminal proceedings and sanctions 384 c Civil proceedings and damages 384 B Relationship between criminal sanctions and disciplinary sanctions 385 5 Duty to provide information to the authorities 385 A Money laundering and terrorism 385 B Other information 386 6 Treatment of a lawyer’s documents and correspondence in the context of judicial investigations 386 7 Search of a lawyer’s office 387 8 Tapping of telephone conversations with a lawyer 388 9 The lawyer as witness 389 10 The lawyer and the press 390 11 Powers of the tax administration and other authorities 390 12 State security service 390

366

The Netherlands

Preliminary note 1. The Netherlands attribute an exclusive right of legal representation or assistance1 in all major civil cases2 and major criminal cases3 to lawyers admitted to the Bar. Lawyers who are admitted to the Bar are subject to a duty of professional secrecy. This duty of professional secrecy has its counterpart in the attorney–client privilege. These lawyers can be self-employed or take up office with any firm, in which case certain requirements aiming at maintaining their professional independence have to be met.4 Lawyers must comply with the Act on Advocates (Advocatenwet) and the ordinances enacted by the National Bar Council (Nederlandse Orde van Advocaten).5 The Bar’s Code of Conduct has its basis in the Act on Advocates and serves as a guideline for all lawyers.6 Compliance is enforced in regionally organised disciplinary courts (raden van discipline), overseen by a central Court of Discipline (Hof van Discipline). The Bar itself is organised in regional associations according to the judicial districts of the district courts under the supervision of the Netherlands Bar Association.7 The regional associations and the national association are presided over by a regional and national dean (deken) respectively. The regional dean is assisted by a supervisory board. This chapter focuses on the duty of professional secrecy and the attorney–client privilege of lawyers who belong to the Bar.8 Unless indicated otherwise, for the purposes of this chapter the term ‘lawyer’ refers to a member of the Bar (advocaat).

1 In criminal cases, assistance is covered by Art. 37 Code of Criminal Procedure and representation by Art. 279 of the same Code. 2 Cases in which €25,000 or more is at stake, with the exception of labour cases, lease and tenancy cases and consumer cases (Article 93 Code of Civil Procedure). 3 Misdemeanours and felonies (by implication from Art. 382 in conjunction with Art. 398, subsection 2, Code of Criminal Procedure). 4 Ordinance of 27 November 1966, Stcrt. 1996, 239 (Ordinance on the Exercise of Practice while Being Employed). According to national law, there is no difference regarding the duty of professional secrecy and the attorney–client privilege between self-employed and non-selfemployed lawyers. For their position in European competition law, see Chapter 1, no 34, this volume. 5 Most translations are made in accordance with the terms used by the Netherlands Bar Association itself (see www.advocatenorde.nl). This site can also be used to retrieve the Code of Conduct for Lawyers, mentioned in the next section. 6 Art. 46 Lawyer’s Code gives the sole rule to be observed, i.e. to act in accordance with the care due to clients and as befits a decent and respectable lawyer. 7 The number of judicial districts will be decreased from nineteen to ten (or eleven) by 1 January 2013 (Act on the Judicial Districts). The regional bar associations will follow suit. 8 The attorney–client privilege has been extended to state-appointed legal-aid counsellors (Supreme Court, 25 October 1985, NJ 1986, 176) and authorised patent representatives (Zutphen District Court, 5 January 1988, NJ 1989, 563). The text will only focus on lawyers.

367

Professional secrecy of lawyers in Europe

1

Scope of and limitations on professional secrecy 2. In the Netherlands, the duty of professional secrecy is strictly distinguished from the attorney–client privilege. The duty of professional secrecy is a duty of the lawyer towards the client and sometimes even towards third parties. The attorney–client privilege is a right (not a duty)9 that does not protect the interests of the lawyer’s client, but society as a whole. There is no mutual implication, although in most cases duty and privilege coincide. Most of the issues discussed below fall under the ambit of the privilege. The distinction will be maintained throughout the text. The reader should therefore be aware that what is being said about the privilege does not necessarily hold for the duty of professional secrecy and vice versa.

A

Statutory basis and implications 3. There is no direct statutory basis in the Netherlands for the duty of professional secrecy. Article 272 of the Criminal Code of 3 March 1881 presupposes that such a duty can exist for those professions that imply that the professional understands or should understand that ‘secrets’ confided should be kept secret.10 Trespassing this statutory provision is threatened with a prison term of at most one year and/or a criminal fine. It has always been understood that lawyers practise such a profession, especially since they were particularly mentioned in the preceding Article 378 of the French Code p´enal. Only in 1939 did the Netherlands Bar Association publish its first version of a Code of Conduct.11 The duty of professional secrecy was linked to the attorney–client relationship, which initially was interpreted in such a way that it did not extend to the lawyer’s relation to others.12 Later, this view was rejected, accepting that third parties can be entitled to secrecy as well when entrusting a lawyer with confidential information.13 The current Code of Conduct devotes Article 6 to the duty of professional secrecy, including in that third parties in subsection 5. 9 In Hohfeldian terms it is an immunity-right, not a privilege, since this ‘privilege’ implies that no one can alter the legal position of the lawyer enjoying the ‘privilege’. W. N. Hohfeld, Fundamental Legal Conceptions as Applied in Judicial Reasoning, and Other Legal Essays, New Haven: Yale University Press, 1923. 10 This Code was introduced almost seventy years after the liberation of the Netherlands from French occupation in 1814 and replaced the Napoleonic Criminal Code of 22 February 1810, which contained a similar provision (Art. 378). The Dutch Criminal Code entered into force on 1 March 1886. Art. 272 was preceded by Art. 378 of the French Criminal Code, but differed from it by not mentioning specific professions, giving a more general description instead. 11 Advocatenblad 1939, p. 7. 12 ’s-Hertogenbosch Court of Appeal, 17 December 1942, NJ 1943, 513. 13 C. H. Telders, ‘De advocaat als getuige’ (The Lawyer as a Witness), Preliminary report, Advocatenblad 1957, p. 395.

368

The Netherlands

In 2011, the Government took up the much-debated plan to give the professional secrecy of lawyers a statutory basis. The preliminary draft of this bill has been published on the Internet to invite stakeholders and society to comment on it.14 Criticisms are mainly directed at the proposed delegation of the power of enacting derogatory regulations to the administration.15 The bill itself has not yet been submitted to Parliament. 4. The attorney–client privilege initially focused on the position of the lawyer as a witness in civil and criminal procedures. Already in 1838, Article 1946 of the Civil Code and Article 189 of the Code of Criminal Procedure exempted from the obligation to declare as a witness those who, ‘pursuant to their status, profession or office, are bound by the duty of professional secrecy, but only insofar as knowledge is involved that has been confided to them in that capacity’.16 This general description, which is still the basis of the privilege, has led to a very long list of court decisions about whether or not professions and activities profit from the privilege.17 However, from the outset there has been no discussion of whether these provisions apply to the attorney–client relationship.18 The chosen approach implied that the attorney–client privilege needs a statutory basis and is not a direct sequel of the duty of professional secrecy. Understandably, gradually it was felt that only providing rules for lawyers asked to give testimony as a witness did not do justice to the nature of the position of lawyers in society. The question whether a more extensive statutory protection of the attorney–client privilege would be appropriate arose first when in 1881 the office of a lawyer was threatened with a search by the examining magistrate.19 Preliminary advice on the matter was drafted under the supervision of the distinguished Netherlands Lawyers Association,20 and a Supreme Court decision entailed that lawgiving activity was indispensable.21 14 The Dutch Government publishes preliminary drafts at www.internetconsultatie.nl, inviting input from whoever feels the urge to submit objections and remarks. 15 Art. 11(a) Act on Advocates (draft). 16 In addition, Art. 65 Code of Criminal Procedure laid down the same rules in the event the lawyer was heard by the examining magistrate during an inquest. 17 A very complete account can be found in F. J. Fernhout, Het verschoningsrecht van getuigen in civiele zaken (The Attorney–Client Privilege in Civil Cases), Maastricht: Gianni, 2004, 225–41. New case law is Supreme Court, 10 April 2009, NJ 2010, 471 (the mediator does not enjoy privilege). 18 The literature from around 1838 is mentioned and summarised in Fernhout, Het verschoningsrecht van getuigen in civiele zaken, 2–9. 19 All references to be found in Fernhout, Het verschoningsrecht van getuigen in civiele zaken, 52–6. 20 D. Simons, ‘Papieronderzoek in strafzaken’, and J. G. Patijn, ‘Papieronderzoek in strafzaken’, preliminary advice for the Netherlands Lawyers Association, Handelingen NJV 1888, 281–327 and 328–98. 21 Supreme Court, 19 November 1894, W. 6586 (1894), 1.

369

Professional secrecy of lawyers in Europe

As a consequence, Dutch law nowadays offers an intricate web of provisions protecting the relationship between lawyers (and other professionals) and their clients by granting to the lawyer (or other professional) the privilege of not being bound to disclose certain information relating to his or her client and granting immunity from being forced to disclose the same. These provisions concern, for instance, the position of the lawyer as a witness22 or as a depositary of documents,23 the relative inviolability of the premises of a lawyer,24 the protection of his or her communications,25 and his or her duties in relation to reporting crime.26 5. By regulating the attorney–client privilege in this way, it is not unthinkable that some particular situations have been overlooked, thus raising the problem of whether the privilege applies or not. This was covered by an important Supreme Court decision of 1985, in which the ultimate basis of the privilege (for lawyers and similar professionals, usually referred to as ‘professional advisers’) is attributed to a general principle of law, in force in the Netherlands, stating that in the public interest those professionals whose professional practice must be based on confidentiality cannot be forced to reveal this confidential information to the courts, since everyone should have the possibility to consult these professionals freely for help and advice without having to fear the disclosure of what has been said.27 6. In this respect, three remarks have to be made. In the first place, where positive law is silent or seems to be conflicting, the principle unifies and fills the gap. Discussions about the attorney–client privilege being different in civil and criminal cases thus become obsolete.28 However, the fact remains that acts and statutes can always derogate from the principle. The past ten years have shown a general tendency to stress the importance of uninhibited fact finding, especially in criminal cases, which would call for setting limits on the privilege of professional advisers. Especially notaries and doctors have been targeted lately and lawyers fear to be the next victims. In the second place, as a result of a long development that started already in the nineteenth century, the principle forming the basis of the privilege is rooted in the general interest and not in the interest of the client. As in Belgium, a 22 Art. 165, subsection 2(b), Code of Civil Procedure, referred to by numerous other provisions; Art. 218 Code of Criminal Procedure, also referred to by numerous other provisions. 23 Art. 843(a), subsection 3, Code of Civil Procedure; Art. 105, subsection 3, Code of Criminal Procedure. 24 Arts. 98 and 126(d) Code of Criminal Procedure. 25 Art. 126(aa), subsection 2, Code of Criminal Procedure. 26 Art. 160, subsection 2, Code of Criminal Procedure. 27 Supreme Court, 1 March 1985, NJ 1986, 173, recently reconfirmed in Supreme Court, 5 July 2011, NJ 2011, 416. 28 Fernhout, Het verschoningsrecht van getuigen in civiele zaken, 167.

370

The Netherlands

properly functioning judicial system is considered a matter of public policy and necessary in a democratic society. This accounts for the differences and divergences in scope and contents of the duty of professional secrecy and the attorney–client privilege. In the third place, the Supreme Court explicitly states that it is a principle in force in the Netherlands. Therefore, in its Dutch interpretation, there is no equivalent in international law. It cannot be said that the attorney–client privilege exclusively serves to guarantee the right to a fair trial or to protect the privacy of the client, since it has two sides. On the one hand, information relating to the client will not be disclosed, thus helping the client (and others) to protect their interests in a fair way. On the other hand, discovery of facts in favour of the other party or the public prosecutor is impeded, thus possibly depriving the other party of a fair outcome of their case or preventing crime being punished. This being said, it is understandable that Dutch Supreme Court decisions do not refer to a basis in international law. On the contrary, international law is rather invoked to justify exceptions to the principle.29

B

Scope 7. The duty of professional secrecy is a matter between the lawyer and his or her client. The duty follows from the fact that a retainer agreement has been concluded and need not be stipulated explicitly. The duty of professional secrecy is there to protect the client’s interest in several ways. The client must be free to provide any information that might be necessary for determining his or her legal position in a pending or possible case, even if this information is not favourable for him or her. This can only be realised when confidentiality is guaranteed. Apart from that, the client’s privacy requires that the lawyer not disclose anything that he or she has learnt about the personal situation of the client. This implies that the scope of the duty of professional secrecy is in general limited to ‘secrets’. What has already been disclosed will not be subject to this duty, and the same goes for knowledge obtained before the attorney–client relationship started.30 It is not easy to determine what has to be seen as secret. Case law did not set any boundaries, so in principle all client-related information falls under the scope of the duty, including details about the way he or she was dressed and dates and places of interviews. Since the duty is there to protect the client’s interests, the client may waive his or her rights. Discharging the lawyer from this duty of secrecy will allow the lawyer to communicate freely about the client and the case, although he or she will always have to keep the client’s 29 E.g. ECtHR, 17 January 2002, no 32967/96, Calvelli v. Italy; and ECtHR, 9 April 2009, ˇ no 71463/01, Silih v. Slovenia, both cited in Supreme Court, 5 July 2011, NJ 2011, 416. 30 Court of Discipline, 27 May 1963, Advocatenblad 1965, 213.

371

Professional secrecy of lawyers in Europe

interests in mind. Once discharged, the criminal and disciplinary liability of the lawyer have ceased to exist. The debate concerning professional secrecy mainly concentrates on the question of the cases in which the lawyer, in spite of the duty of secrecy, is justified in disclosing information about the client. This has been summarised by stating that little room is left for moral or ethical considerations, except when it is a matter of life and death concerning events in the future.31 For instance, a lawyer who reported crimes committed by the client (theft of bicycles) was suspended for seven days.32 At the same time, thus disclosing information in breach of the duty of professional secrecy constitutes a breach of contract. 8. The attorney–client privilege covers all information the lawyer has come to know from and about the client, provided that this knowledge came about in the context of exercising his or her capacity as a lawyer33 and regardless of the form (digital, oral, visual) in which the information was obtained. Initially, following the wording of the law, it was assumed that this information had to be ‘confided’ in some way, but later case law made clear that this was not a requirement at all, if disclosing the information would betray the confidence the client has put in the lawyer.34 The only requirement left is that the information must have been obtained in the normal practice of the lawyer’s profession.35 Moreover, the attorney–client privilege even applies when the information concerned has no direct relation with the matter for which the lawyer was consulted. It is not necessary that this information be related to the advice given or the court case the lawyer has been dealing with. Thus the privilege applied to the date of an appointment between lawyer and client,36 to the question whether an interview had taken place,37 to the question whether a client had been referred to another lawyer,38 to bank account numbers to which payments had been made39 and to a lawyer’s bills to the client.40 On the other hand, lawyers operating in another capacity than as a lawyer are not entitled to this privilege. This calls for an objective definition of ‘operating 31 R. Verkijk, ‘De advocaat in het burgerlijk proces’ (The Lawyer in Civil Proceedings), dissertation, Boom Juridische Uitgevers, The Hague, 2010, 416. 32 Court of Discipline, 10 June 1987, Advocatenblad 1988, 251. 33 Excluded is information already obtained before this relationship started. ’s-Hertogenbosch District Court, 28 June 2002, Niewsbrief strafrecht 2003, 86. 34 Supreme Court, 23 November 1990, NJ 1991, 761. The medical privilege of a nurse also applies to the movements between rooms in a clinic the nurse has seen during a night shift. 35 Supreme Court, 12 October 2010, NJ 2011, 537. 36 Amsterdam Court of Appeal, 1 May 1944, NJ 1944, 399. 37 District Court Haarlem, 11 March 1975, NJ 1976, 125. 38 Supreme Court, 25 October 1985, NJ 1986, 176. 39 Supreme Court, 18 December 1998, NJ 2000, 341. 40 Supreme Court, 24 May 2011, NJ 2011, 262.

372

The Netherlands

in the capacity of a lawyer’, for which, according to case law, the view of the Bar Council is not decisive.41 Sharp boundaries have not been formulated, but case law suggests that the privilege has to be extended to all instances in which the lawyer has been consulted for his professional expertise. Therefore acting as an adviser for real-estate transactions or the sale of a company will also yield the attorney–client privilege.42 Things change when the lawyer takes on another capacity, like acting as a trustee in a bankruptcy43 or as a mediator,44 which leaves him or her without the privilege. Information obtained from contacts with third parties may yield the attorney–client privilege, but only if confidentiality was stipulated or implied. The latter can be derived from the nature of the contact or from the actual circumstances.45 When the client refers the lawyer to third parties for information (for example, to his spouse), then the information given is covered by the privilege.46 Information from the opposing party can be confidential as well, but not when this information is provided with the intention of being passed on to the client or anyone else.47

C

Persons subject to the duty of professional secrecy 9. The duty of professional secrecy is contractual in nature. Only parties to the contract are concerned. For the lawyer it is a duty, for the client a right. This right can be enforced in court. When a client fears that his or her lawyer, who is still bound by the duty of secrecy, will reveal information to third parties, he or she may ask in court for an order to forbid the lawyer to do so. This also means that the client may force the lawyer to use the attorney–client privilege when called as a witness.48 A breach of contract entitles the client to recover damages and could have disciplinary consequences for the lawyer (see no 28 below) and will constitute a criminal offence (see no 30 below). The client him- or herself is not in any way 41 42 43 44

45 46

47 48

Supreme Court, 8 December 1995, NJ 1996, 708. Supreme Court, 11 March 1994, NJ 1995, 3. Amsterdam District Court, 17 April 1941, NJ 1942, 345. Supreme Court, 10 April 2009, NJ 2010, 471. This decision is not undisputed: P. A. Wackie Eysten, ‘Advocaat-scheidingsmediator heeft wel verschoningsrecht’ (Lawyer–Mediator Enjoys the Privilege), Advocatenblad 2010, 72–3. The criterion should be whether confidentiality was the reason for appointing a lawyer as mediator. Supreme Court, 12 December 1958, NJ 1961, 270. Supreme Court, 21 April 1913, NJ 1913, 958. The same rule was applied in Supreme Court, 24 January 2006, NJ 2006, 109, where the suspect’s mother had given her diary to her son’s lawyer. This diary could not be seized by the prosecution as it was protected by the attorney–client privilege. Amsterdam District Court, 4 October 1943, NJ 1944, 398; Supreme Court, 13 January 2006, NJ 2006, 480. By implication of Supreme Court, 6 March 1987, NJ 1987, 1016. The claims in this passage are not undisputed (see Fernhout, Het verschoningsrecht van getuigen in civiele zaken, 180–1).

373

Professional secrecy of lawyers in Europe

hampered by the duty of professional secrecy of the lawyer. He or she can waive his or her rights and is free to speak freely about the case, including the advice the lawyer has given. He is also allowed to use correspondence the lawyer is not allowed to reveal, which is sometimes used to circumvent rules regarding correspondence between lawyers.49 Accordingly, there is no rule in evidence law (be it civil, criminal or administrative) forbidding the use of information that could be obtained because of the fact that a lawyer breached the duty of professional secrecy. A special problem can arise when lawyer and client oppose each other in a civil or disciplinary procedure. The lawyer will seek to justify the claim or defence by referring to the file, but is prevented from doing so by the duty of secrecy. This duty remains unaltered, although the circumstances of the case could justify breaking it.50 Some disciplinary courts solve the problem by assuming that the duty of secrecy also applies to the court itself, thus freeing the lawyer of the duty of secrecy, but also obliging him or her to give all the necessary information. Apart from that, no effective remedy has been developed that could guarantee the right to equality of arms in all cases. In any case, the lawyer should only produce information to the extent necessary in order to defend him- or herself against the claim.51 10. The attorney–client privilege is a privilege of the lawyer, not of the client. This is a logical consequence of the fact that the privilege finds its basis in the general interest and in public policy. It follows that it is the lawyer who decides if invoking the privilege is appropriate or not, in the given circumstances. The client cannot prevent him or her in any way from doing so, although sometimes the client may force the lawyer to invoke it via the duty of secrecy (see no 9 above). Accordingly, in a long-standing tradition of case law it has always been decided that waiver of the duty of professional secrecy does not affect the attorney–client privilege.52 When taking a decision about invoking the privilege or not, the lawyer should take not only his client’s interests into consideration, but also the interest of the Bar as a whole and its primordial function in a liberal, democratic society, as well as the interest of a due administration of justice. This means that sometimes a lawyer, giving testimony in court, will not speak while the client

49 T. Sillevis Smit, ‘Rechters verdeeld over toelaten confraternele correspondentie’ (Courts Having Differing Views on Admitting Correspondence between Lawyers), Advocatenblad 2011, no 14, 11. 50 Supreme Court, 8 April 2003, NJ 2004, 365. 51 Implicitly already decided in Amsterdam Court of Appeal, 15 May 1896, W. 6845, 2. 52 The first decision was Gelderland Court of Appeal, 12 November 1857, W. 1944, 2. Since then, no Dutch court has ever decided otherwise, although some scholars defended the opposite view (see for all the references Fernhout, Het verschoningsrecht van getuigen in civiele zaken, 191–4).

374

The Netherlands

urges him or her to do so, thus even harming the direct interests of the client. This is justified by the wish to avoid the dilemma of the silence significatif, which would occur when a lawyer would always freely speak about a case when the client had waived the duty of professional secrecy. The fact that this duty is not waived could then be interpreted by the court in such a way that apparently the lawyer cannot give testimony in favour of the client.53 Having remarked that the privilege still applies after the waiver of the duty of professional secrecy, it is important to note that although the lawyer has the power to decide not to invoke the privilege, this does not mean ipso facto that he or she is no longer bound by the duty of professional secrecy. Due to this duty, a lawyer is usually bound to invoke the privilege to avoid breaching disciplinary rules,54 or committing the criminal offence of Article 272 of the Criminal Code.55 11. When a lawyer invokes the attorney–client privilege, this will always be done in a context where others, not enjoying the privilege, would be under the obligation to disclose the information requested. The competent judicial authorities therefore will have to check if the privilege really applies. In fact, this amounts to a dilemma, since the only way to verify if the information is covered by the privilege is by getting knowledge of it, which is prevented by the privilege. Although many proposals have been made to escape this situation,56 the legislature left the solution to the courts. Thus the Supreme Court developed a test of limited review, instructing the courts to accept appeal to the attorney–client privilege when there is reasonable doubt if truthfully giving the information requested could be done without revealing what should remain hidden.57 Obviously, this is no full review and the test basically amounts to giving the lawyer who invokes the privilege the benefit of the doubt in most cases. However, the test is based on confidence in the integrity of the Bar as a whole and respects its independent position. In criminal investigations, some adapted versions have been developed (see no 38 below). Information that has been disclosed can be used in court, even if the attorney–client privilege could or should have been invoked. A problem arises when an appeal to the privilege is first rejected and later, after the testimony has

53 Which actually happened in Supreme Court, 20 January 2006, NJ 2006, 78. The official view of the Government is that courts are allowed to make this inference (Parliamentary Proceedings II 1981, 10377, no 7, 25). 54 As was stated in Court of Discipline, 18 March 1985, Advocatenblad 1986, 251. 55 T. Spronken, ‘Verdediging in strafzaken’ (Defence in Criminal Cases), dissertation, Maastricht, 2001, 546. In fact this is the outcome of a long debate, described in Fernhout, Het verschoningsrecht van getuigen in civiele zaken, 175–80. 56 These solutions all suggested the creation of an intermediate authority with full knowledge of the facts, but no authority to decide or influence the case. 57 Supreme Court, 1 March 1985, NJ 1986, 173.

375

Professional secrecy of lawyers in Europe

been given, overruled. In that case it is generally assumed that the testimony cannot be used.58 In criminal cases, information covered by the privilege but obtained in another context could raise a problem under Article 6, subsections 1 and 3(a) (the right to question witnesses), but that lies outside the scope of this chapter. 12. The problems mentioned have to be distinguished from the question whether evidence can be used after a criminal investigation of any sort that did not respect the attorney–client privilege. These procedural vices are embedded in a rather vague provision, Article 359(a) of the Code of Criminal Procedure, offering the courts a broad variety of ‘sanctions’ ranging from exclusion of the evidence as ‘forbidden fruit’ to the inadmissibility of the public prosecutor in his prosecution. In general, inadmissibility as an automatic sanction is rejected.59 Such a sanction needs special grounds60 and can only follow when police or prosecution, by not respecting the attorney–client privilege, seriously infringe the principles of due process and thus intentionally or negligently impair the rights of the suspect to a fair trial.61 On the other hand, the information cannot be used as evidence, not even to assess the validity of other evidence.62

D

Limitations and derogations 13. The absolute nature of the duty of professional secrecy has been discussed in the preceding paragraphs. In fact, there is no room left for any moral or ethical consideration, except when the lives and the health of others are at stake. On the other hand, if a lawyer can be forced to reveal information or has to tolerate this information being taken from him or her, he or she cannot be accused of breaching the duty of secrecy. This being said, the rest of this section will be devoted to the attorney–client privilege. Unlike the duty of secrecy, the attorney–client privilege is subject to a number of exceptions. If an exception applies, the lawyer is obliged and authorised to disclose the information that falls under the exception. However, given the nature of the privilege, it is difficult to speak of derogations as discussed in other chapters. In the event of derogation, the lawyer can decide whether to 58 Alkmaar District Court, 20 May 1920, NJ 1920, 261; Arnhem Court of Appeal, 23 June 1931, NJ 1934, 1498; Arnhem Court of Appeal, 13 December 1994, NJ 1996, 241. 59 Supreme Court, 11 October 2011, NJ 2011, 505. 60 Supreme Court, 12 July 2011, NJ 2011, 381. For inadmissibility, it is for instance insufficient for the police, in order to locate the suspect, illegally to use a phone call made by the suspect to his or her lawyer. Supreme Court, 16 June 2009, NJ 2009, 603. 61 Supreme Court, 30 March 2004, NJ 2004, 376, recently applied in Supreme Court, 28 September 2010, NJ 2010, 532. Inadmissibility was accepted in Amsterdam District Court, 20 December 2007, NJ 2008, 532, where the police had tapped conversations of suspects with their lawyers for years. 62 Supreme Court, 20 April 2010, NJ 2011, 222.

376

The Netherlands

disclose the information in question, but strictly speaking this is always the case, since it is up to the lawyer to decide if the privilege has to be invoked (see no 10 above). The paragraph about derogations will therefore be very brief. The exceptions must, of course, be interpreted narrowly as they constitute limitations on a privilege that is meant to protect the confidentiality of the profession and thus the general interest of its proper functioning. It will be seen that this narrow interpretation is reflected in the way the exceptions are phrased. a

Limitations

14. It is generally accepted that no exception can be made to the attorney– client privilege by balancing it against supposedly higher values, especially the value of finding the truth in court proceedings. This would lead to too much uncertainty about its scope.63 Nevertheless, when the Supreme Court decided to locate the basis of the attorney–client privilege in a principle of law (see no 4 above), it immediately recognised the possibility of ‘extremely exceptional circumstances’ that could lead to another outcome.64 It is the task of the courts to decide if such an exceptional case is at hand. Initially, it was thought that a criterion asking for ‘extremely exceptional circumstances’ would not find any instances in which to apply. However, gradually it became clear that this exception should be related to the involvement in criminal activities of the lawyer him- or herself. Being a suspect alone is not enough; the suspicion should be related to criminal offences of a serious nature.65 This is the case when a lawyer is suspected of forming a criminal association with clients and of committing crimes like money laundering66 and forgery67 on behalf of this association. Given the nature of this exception, it will not apply when the lawyer is called as a witness, since the exception only applies in criminal cases and as a witness the lawyer cannot be forced to incriminate him- or herself. 15. In civil cases, there has been debate about the position of the lawyer who is involved in a lawsuit against a client and is called to take the stand.68 Invoking the attorney–client privilege in that case seems to have no other purpose than personally to profit from it by harming the interests of the other party, i.e. the 63 64 65 66 67 68

Supreme Court, 22 September 1995, NJ 1996, 55. Supreme Court, 1 March 1985, NJ 1986, 173. Supreme Court, 12 February 2002, NJ 2002, 439. Supreme Court, 19 May 2009, NJ 2009, 443. Supreme Court, 14 June 2005, NJ 2005, 353. Since 1988, in the Netherlands parties can be forced to give testimony in their own cases (Art. 164, subsection 1, Code of Civil Procedure). They have the same obligations as other witnesses, but when they refuse to answer civil arrest is excluded (Art. 173, subsection 1, Code of Civil Procedure).

377

Professional secrecy of lawyers in Europe

lawyer’s former client. Nevertheless, in a case of a notary it was ruled that no exception applies and the privilege can be invoked.69 16. A second exception applies when the lawyer assisted a client in negotiations with another party. When no agreement is reached, the privilege holds, since judging otherwise would infringe on the right to appeal to a lawyer to assist in negotiations.70 In other cases, the fact that the meeting had the purpose to establish a situation with legal consequences for the other party entails that what has been said cannot be confidential.71 Even if parties disagree about the question whether an agreement has been reached, the lawyer, called as a witness, cannot invoke the attorney–client privilege.72 If parties disagree about the exact contents of the agreement, the privilege does not apply in case of a written agreement. If the agreement has not been put in writing, the circumstances of the case may lead to the conclusion that confidentiality was implied.73 In disciplinary matters, in cases in which the attorney–client privilege does not apply for the reasons stated in this paragraph, it is assumed that the lawyer did not breach the duty of professional secrecy by giving testimony.74 17. Disciplinary proceedings commenced against a lawyer start with an investigation by the dean of the regional bar association (Art. 46(c) Act on Advocates). In general, the dean must be able to assess the actions of the members of the Bar in order to determine whether they comply with the law and the Code of Conduct. This implies access to information that falls under the scope of the duty of professional secrecy of the lawyer. Giving this information cannot be refused, since the duty of professional secrecy and the attorney–client privilege are passed on to the dean. This falls under the scope of a general construction adopted by the Supreme Court in a case of a doctor in an advice centre. The Supreme Court ruled that for any profession (i) that is of a considerable public interest, (ii) which interest could be harmed if the professional–client privilege would not apply, and (iii) for which the interest of truth finding in legal proceedings should give way, the professional–client privilege holds.75 This can easily be extended to the relation between the dean and a member of the Bar. 69 Supreme Court, 9 August 2002, NJ 2004, 47. The decision was not widely approved. See J. B. M. Vranken, ‘Ook als partijgetuige heeft de notaris een functioneel verschoningsrecht: Terecht?’, WPNR 2002, 775. 70 Supreme Court, 22 June 1984, NJ 1985, 188; Supreme Court, 25 October 1985, NJ 1986, 176. This holds unless additional circumstances characterise the meeting as not confidential. 71 Supreme Court, 12 December 1958, NJ 1961, 270. 72 ’s-Hertogenbosch Appeal Court, 10 April 1964, NJ 1964, 482; Supreme Court, 1 March 1985, NJ 1986, 173. 73 Supreme Court, 25 September 1992, NJ 1993, 467. 74 See the case law cited in Fernhout, Het verschoningsrecht van getuigen in civiele zaken, 213–19. 75 Supreme Court, 15 October 1999, NJ 2001, 42.

378

The Netherlands

Disciplinary proceedings are held in public (Art. 49, subsection 11, Act on Advocates). Information that has been disclosed in a public hearing loses the protection given by the duty of professional secrecy and can freely be used, also against the lawyer’s client. When the doors have been closed, it is derived from the right to a fair trial (Art. 6 ECHR) that parties should have the opportunity to speak freely without having to fear the later disclosure of their statements.76 This implies that using this information in other proceedings is not allowed. 18. The position of the lawyer who is opposing his former client in a lawsuit has already been discussed (see no 9 above). The exception concerning material that is directly related to the crime that is investigated will be explained below (see no 37 below). b

Derogations

19. As has become clear from the preceding paragraphs, the decision about invoking the attorney–client privilege is exclusively attributed to the lawyer. He or she can be bound to do so if the information concerned falls under the duty of professional secrecy, but otherwise it is left to his or her sole discretion to use the privilege or not. This decision is certainly not dictated by the client’s interests. In fact, even when the client has waived the duty of professional secrecy to enable the lawyer to give testimony in court, most lawyers still refuse to disclose information about their clients.

E

Law firms 20. To understand the position of colleagues in a law firm, it is necessary to introduce the concept of a ‘derived and shared’ attorney–client privilege (and duty of professional secrecy). This concept has been developed as a result of acknowledging that a lawyer will never be able to do all the work in a case completely on his own.77 Often he has to ask others for advice and it is quite natural to share information and views with colleagues in a law firm. Apart from that, he will make use of a secretary, cleaners, interpreters, experts and so on. Assuming that all these persons are not bound by the same duty and are not able to invoke the attorney–client privilege would deprive both the duty and the privilege of their meaning. Under this assumption, all information that could be obtained from the persons the lawyer worked with would remain unprotected, and the same goes for the client (and the general interest). All these persons 76 Supreme Court, 30 March 1998, NJ 1998, 554 (for civil procedures in general). 77 The terms have been coined by D. Hazewinkel-Suringa, De doolhof van het beroepsgeheim (The Labyrinth of Professional Secrecy), Tjeenk Willink, Haarlem, 1959. In Dutch, usually only the first term is used (‘derived’), but it seemed better to join the two terms for the purpose of this chapter.

379

Professional secrecy of lawyers in Europe

therefore enjoy a derived and shared privilege and are bound not to reveal the privileged information. Granting a derived and shared privilege to all the ‘collaborators’ of the lawyer is the result of a development that started in 1927, when the medical superintendent of a hospital was allowed to invoke the privilege his doctors enjoyed.78 Since then it has been granted to a lawyer’s secretary,79 a law student working under the supervision of a lawyer,80 the staff of a lawyer’s office and the experts he consulted,81 and the staff of a foundation managing the money deposited in a law firm.82 In legal literature, a derived and shared privilege is also assumed for the successors and the heirs of a lawyer.83 A derived and shared privilege can also arise on the receiving side of information sent by the lawyer. Thus the recipient of a lawyer’s letter which would have been been covered by the privilege if it had still been in the lawyer’s possession enjoys the derived and shared privilege as well.84 In the case of correspondence, the same goes for the client him- or herself,85 who otherwise, as the source of the information, would not enjoy the privilege.86 The derived nature of this derived and shared attorney–client privilege entails that in principle the lawyer decides whether the privilege has to be invoked.87 That is obvious, since this privilege is, as explained above, entrusted to the lawyer. Considering the pros and cons should be done by him- or herself and not by, for instance, his or her secretary or cleaner. When this is practically impossible (the lawyer died or cannot be reached), the decision will have to be taken by the person enjoying the derived and shared privilege. The derived and shared privilege applies to all situations in which information from the lawyer has come into the possession of another person, as long as the lawyer him- or herself cannot be blamed for the fact that the information has been spread. Onlookers listening to a drunken lawyer boasting about his case in a pub will have to give testimony about what they have

78 Supreme Court, 30 November 1927, NJ 1928, 265. The annotator to this decision, who also was a member of the Supreme Court and wrote the decision himself, noted that the medical profession of the witness did not play a role. 79 Special Cassation Council, 8 November 1948, NJ 1949, 66; Supreme Court, 12 October 2010, NJ 2011, 537. 80 Haarlem District Court, 11 March 1975, NJ 1976, 125. 81 Supreme Court, 29 March 1994, NJ 1994, 552. For staff only, Supreme Court, 6 December 1955, NJ 1956, 52. 82 Rotterdam District Court president, 23 March 1995, KG 1995, 198. 83 Hazewinkel-Suringa, De doolhof van het beroepsgeheim, p. 65. 84 Supreme Court, 29 March 1994, 552, overruling its former decision of 26 June 1990, NJ 1990, 750. Confirmed in Supreme Court, 12 February 2002, NJ 2002, 440. 85 Supreme Court, 19 November 1985, NJ 1986, 533. 86 Supreme Court, 2 December 2005, NJ 2006, 119. 87 Supreme Court, 29 March 1994, NJ 1994, 552.

380

The Netherlands

heard, whereas the thief stealing files from a lawyer’s office will enjoy the privilege.88 21. This concept of a derived and shared privilege allows the finding of clear and satisfying solutions for all of the situations described in sections F to H below. Those sections will basically refer to this concept.

F

Legal assistants and staff 22. Law firms employ secretaries, support staff and paralegals. They enjoy the derived and shared privilege described in no 20 of this chapter.

G

External service providers 23. More and more law firms are outsourcing services such as secretarial work, the review of documents written in a foreign language, and even legal work such as due diligence or research. All persons involved enjoy the derived and shared privilege described in no 20 of this chapter.

H

Multidisciplinary associations 24. A lawyer is entitled to co-operate, on a specific matter, with a professional who is not a lawyer, provided the lawyer ensures respect for professional secrecy. Lawyers can also form professional associations with non-lawyers like notaries and accountants.89 Information can be shared to the extent necessary to safeguard the client’s interests or as a result of the actual way the professional practice is organised. All persons concerned enjoy the derived and shared privilege described in no 20 of this chapter.

2

History 25. The history of the duty of professional secrecy and the attorney–client privilege has already partly been described (see nos 3 and 4 above). It has not yet been mentioned that this history is remarkable.90 88 Fernhout, Het verschoningsrecht van getuigen in civiele zaken, 188. This can be different when the receiver of the information is bound by professional ethics himself. The lawyer who should have understood that the doctor disclosed information in breach of his duty of secrecy was acting unethically when he used this information in his client’s case. Amsterdam Disciplinary Court, 21 April 1997, Advocatenblad 1998, 442. 89 Samenwerkingsverordening 1993 (Ordinance on Associations). Associations are allowed with national and foreign lawyers, notaries, authorised patent representatives, tax consultants and tax advisers. 90 All more exact references for what follows can be found in Fernhout, Het verschoningsrecht van getuigen in civiele zaken, 7–20.

381

Professional secrecy of lawyers in Europe

Originally, the attorney–client privilege goes back to Digestes 22.5.25 (De testibus), according to which lawyers were not allowed to give testimony in their own cases. The background is clear: witnesses who have a direct interest in a case cannot be trusted. Under the French occupation, a similar rule was proposed in a draft of 1804 of a Code on Evidence Law.91 After the French period, two drafts for a Civil Code (1816 and 1820) contained the same provision, clearly aiming at the untrustworthiness of lawyers when giving testimony in their own cases. There was no trace of an attorney–client privilege and the Civil Code that was supposed to enter into force on 1 February 1831 did not even mention any more the exception for lawyers in certain cases. The Belgian revolt of 1830 was seized by King William I as an opportunity to order a new and revised draft of the Civil Code. Out of the blue, the new draft contained a fully fledged, absolute and extremely liberal professional– client privilege for all professions based on confidentiality. The same article was incorporated in the Code of Criminal Procedure. No documents can be traced that explain where this complete U-turn came from. Apparently, it was seen as something self-evident that had just been overlooked previously.

3

Supervision

A

The bar associations 26. Lawyers who belong to the Bar are independent legal professionals who are free to determine how best to defend their clients and protect their rights and interests. They should exercise their profession in accordance with the law and regulations and decisions based on the Act on Advocates (Art. 10 Act on Advocates). At the administration of the oath they swear not to take on any case they do not believe to be just (Art. 3, subsection 2, Act on Advocates). Lawyers are subject to the authority of the national and regional bar association, which, through the national and regional dean, oversees compliance with the rules governing the legal profession. The Bar authorities cannot direct or instruct lawyers in the handling of their cases. Disciplinary sanctions are imposed by the regional disciplinary courts, with a possibility of appeal to the Court of Discipline. All cases against lawyers are brought to the disciplinary courts by the deans. The attorney–client privilege is also an ethical duty (Art. 6 Code of Conduct), the violation of which will result in the imposition of disciplinary sanctions. 91 Ontwerp van Wetten omtrent het Bewys.

382

The Netherlands

B

The courts 27. Lawyers must, of course, abide by the law. The civil courts have jurisdiction to hear any civil claim for professional liability brought against a lawyer by a client. The criminal courts have jurisdiction over crimes committed by lawyers in the exercise of their profession. No special rules apply in this respect to lawyers.

4

Sanctions

A

Proceedings and sanctions

a

Disciplinary proceedings and sanctions

28. The dean of the regional bar association receives and examines complaints against the association’s members (Art. 46(c) Act on Advocates). The complaint should be in writing, if necessary written by the dean himself. The dean has to try to reconcile the complainant and the lawyer first before sending the complaint to the disciplinary court. The dean can also start proceedings on his or her own initiative (Art. 46(f) Act on Advocates). In both cases, he or she first investigates the complaint, either by him- or herself or by charging the investigation to a member of the supervisory board. On the request of the complainant, the dean is bound to submit the complaint to the disciplinary court.92 The disciplinary courts are composed of a chairman and substitute chairmen, who are all appointed by the minister of justice, and other members. The other members are all lawyers themselves (Art. 46(b) Act on Advocates). Every complaint is brought before five members of the board, one of whom is the chairman or a substitute chairman (Art. 47 Act on Advocates). The dean is not part of the board, but, if he or she wishes, is allowed to be present at or invited to the hearing (Art. 48(h) Act on Advocates). The member of the supervisory board who made the investigation cannot be a member of the disciplinary court (Art. 47, subsection 3, Act on Advocates). The chairman may reject complaints that are inadmissible, clearly unfounded or frivolous (Art. 46(g) Act on Advocates).93 Both the lawyer and the complainant are heard in a public hearing. They can be assisted by a lawyer. Witnesses and experts can be heard if this is deemed necessary by the disciplinary court. The doors of the hearing can be closed for weighty reasons (Art. 49 Act on Advocates). 92 A project of law (Parliamentary proceedings II 2009/10, 32382, 2) is currently in Parliament, proposing to grant the dean the power to reject clearly unfounded complaints him- or herself. 93 In this case, on an objection within fourteen days the disciplinary court may overrule the decision of its chairman.

383

Professional secrecy of lawyers in Europe

The following disciplinary sanctions can be imposed by the disciplinary court (Art. 48, subsection 2, Act on Advocates): (i) a simple warning, (ii) a reprimand, (iii) a suspension from the practice of law for a period of up to one year or (iv) expulsion from the Bar. The latter three sanctions can be made public if the disciplinary court thinks this is necessary to secure the interests for which disciplinary sanctions are made possible. The disciplinary court must give the reasons for its decision (Art. 48, subsection 1, Act on Advocates). 29. Decisions of the disciplinary court can be appealed to the Court of Discipline within thirty days after the decision has been sent to all interested parties (Art. 56 Act on Advocates). The power to appeal has been granted to the lawyer, the complainant, the regional dean and the national dean. Appeal must be filed in a written statement containing the grounds of appeal. The court is composed of three members chosen from the judiciary and two lawyers admitted to the Bar. The procedure is not different from the procedure before the disciplinary court. The decisions of the court are final and cannot be appealed. b

Criminal proceedings and sanctions

30. Violation of the duty of professional secrecy is punishable by criminal sanctions, i.e. a prison term of up to one year and a fine of the fourth category, which means a fine of up to €19,000 (Art. 272 Criminal Code). The district court (rechtbank) has jurisdiction. The court’s decision can be appealed to the competent court of appeal, whose decision can in turn be appealed, although only on legal grounds, to the Supreme Court. Criminal sanctions can also be imposed when the lawyer, being heard as a witness, decides not to invoke the attorney–client privilege while his duty of professional secrecy still exists. In that case, he can avoid a conviction if he can rely on special grounds justifying his decision.94 c

Civil proceedings and damages

31. The decision to invoke the attorney–client privilege is exclusively granted to the lawyer. The privilege is not especially aimed at the interests of the client. Therefore this decision can never be the ground for a civil lawsuit of the client against the lawyer. 32. Violation of the duty of professional secrecy is a breach of the contract with the client and damages may be awarded if the breach caused harm to the client. The client bears the burden of proof in this regard. The district courts have jurisdiction over such proceedings, and appeal is possible to the courts of appeal and, finally, to the Supreme Court (on legal grounds only).

94 Supreme Court, 8 April 2003, NJ 2004, 365.

384

The Netherlands

B

Relationship between criminal sanctions and disciplinary sanctions 33. Disciplinary and criminal sanctions are imposed independently and have in principle no effect on each other. The sanctions are different in nature and therefore cannot be related directly to the ne bis in idem principle. However, the minister of justice developed a view on the relation between different sanction systems that is more or less based on the una via principle. This policy implies that disciplinary enforcement of rules concerning lawyers is preferred and that criminal proceedings will only be started when weighty interests are at stake.95

5

Duty to provide information to the authorities

A

Money laundering and terrorism 34. Legislation concerning money laundering and financing of terrorism goes back to 1993 and was the result of the First Anti-Money Laundering Directive (Directive 91/308/EEC). Subsequent directives and developments within the Netherlands itself led to numerous adaptations.96 Currently, the said regulations can be found in and are based on the Act to Prevent Money Laundering and Financing of Terrorism (WWFT).97 Institutions defined by this statute – the definition is rather broad, including natural persons like notaries, accountants and lawyers – are bound to investigate the identity of their clients (Art. 3 WWFT) and to inform the Financial Intelligence Unit about certain unusual transactions (Art. 16 WWFT). For lawyers, this has been restricted to matters involving the transfer of real estate, the establishment of private limited companies, the transfer of companies, tax advice and the like (Art. 1, subsections 12 and 13, WWFT). The exception of Article 23, subsection 2, of the Third Anti-Money Laundering Directive (Directive 2005/60/EC) has been copied into Article 1, subsection 2, of the WWFT, thus freeing lawyers from all obligations under these regulations in cases in which their advice and assistance is aimed at the legal position of their client in or outside legal proceedings. 35. The WWFT provides for a system of administrative sanctions in the event an institution does not comply with this law. Professionals (like lawyers) who could suffer disciplinary sanctions for trespassing this statute are exempted from 95 Parliamentary proceedings II 2005/06, 29849, 30, 4. 96 A complete overview up to 2009 can be found in M. G. Faure, H. Nelen, F. J. Fernhout and N. J. Philipsen, Evaluatie tuchtrechtelijke handhaving, Wet ter voorkoming van Witwassen en Financiering van Terrorisme, The Hague: Boom Juridische uitgevers, 2009, 9–17. Later changes of the law did not affect the position of lawyers. 97 Wet ter voorkoming van witwassen en financiering van terrorisme (Stb. [Staatsblad, Dutch Bulletin of Acts, Orders and Decrees] 2008, 303).

385

Professional secrecy of lawyers in Europe

the administrative sanctions (Arts. 26 and 27 WWFT). In combination with the fact that lawyers tend to refuse the supervising body (Bureau for Financial Supervision) inspection of their files because of their duty of professional secrecy,98 some debate is ongoing about the question whether this duty should not yield to the interest of fighting money laundering and terrorism. The state secretary of justice recently announced that he is developing a new system of supervision to deal with this problem,99 which is heavily criticised by the Bar Association and by scholars.100

B

Other information 36. The Code of Criminal Procedure comprises numerous provisions giving investigating authorities the power to order citizens and institutions to supply certain information or objects.101 Not complying with such an order is a criminal offence.102 All these provisions make an exception for information covered by the attorney–client privilege.103 Moreover, lawyers do not have an obligation to report crimes if this knowledge is covered by the privilege (Art. 160, subsection 2, Code of Criminal Procedure).

6

Treatment of a lawyer’s documents and correspondence in the context of judicial investigations 37. When, in the course of an investigation, the authorities come upon documents prepared by a lawyer, or letters to or from a lawyer, or documents handed over to a lawyer in a certain case,104 they should consider these documents to be privileged, even when these documents are found in possession of the suspected client.105 All these documents cannot be seized,106 and cannot be used as evidence in court (see no 10 above). Excepted are all documents (and 98 The report mentioned in note 96 above remarked that disciplinary measures either are not taken or are very lenient. 99 Letter of 13 April 2011 to the Chairman of Parliament. 100 Y. Buruma, ‘Het advocatenprivilege bedreigd’ (The Attorney–Client Privilege in Danger), DD 2011, 80–108. 101 There are fifteen such provisions, varying from keys to encrypted files to objects belonging to the subject. 102 Arts. 184 and 193 Criminal Code. 103 This exception is made by reference to Art. 96(a), subsection 3, containing the exception for seizable objects. 104 Supreme Court, 24 January 2006, NJ 2006, 109. 105 Supreme Court, 19 November 1985, NJ 1986, 533. 106 Art. 98, subsection 1, Code of Criminal Procedure. For documents in possession of someone other than the lawyer, Supreme Court, 1 November 1989, NJ 1989, 349.

386

The Netherlands

computer files107 ) that have been the object of the criminal offence or have served to commit it (Art. 98, subsection 2, Criminal Code). In the case of the search of a lawyer’s office or premises, special procedural rules apply, to be discussed in the next paragraph. When the documents are found elsewhere, the investigating authorities should check if these documents are prima facie confidential. If this is the case, they are not allowed to take knowledge of their contents.108 Otherwise, the seizure of the documents may afterwards be disputed in a special procedure (Art. 552(a) Code of Criminal Procedure). Obviously, the above does not apply when the exception to the attorney– client privilege, as discussed above (see no 14 above), holds. In that case, there is no difference between documents from a lawyer and other documents, although the investigation still has to be executed in such a way that professional secrecy is respected as much as possible.

7

Search of a lawyer’s office 38. Article 98 of the Code of Criminal Procedure gives rules for searching the offices, premises, ships and vehicles of persons enjoying the professional– client privilege. These searches are allowed with the consent of the lawyer, but also when they are limited to documents that fall outside the scope of the attorney–client privilege, to documents that have been the object of the criminal offence or have served to commit it or when the searches are aiming at objects other than documents.109 In any event, searches have to be conducted in such a way that the secrecy of the clients is respected whenever possible. Documents to which the attorney–client privilege applies cannot be seized and may not be the object of a search. As stated above, it is left to the lawyer to decide if the documents are privileged or not. Obviously, this could give rise to a difference of opinion with the searching authorities. The public prosecutor enacted guidelines to solve this problem, covering all problems that can arise in case of the use of powers of criminal investigation against lawyers.110 For searches, the following rules have been laid down.111

107 108 109 110

Supreme Court, 15 January 1991, NJ 1991, 668. Supreme Court, 1 November 1988, NJ 1989, 349. Supreme Court, 20 June 1988, NJ 1989, 213. Aanwijzing toepassing opsporingsbevoegdheden en dwangmiddelen tegen advocaten, 7 March 2011, Stcrt. [Staatscourant, Dutch Government Gazette] 2011, 4981. 111 It has to be said that the rules are not very precise. The following is a description of the way things actually go.

387

Professional secrecy of lawyers in Europe

39. The searching officers should be informed precisely of what will be searched for.112 If the search is not extremely urgent, the regional dean has to be invited to be present during the search. The search has to be supervised by the examining magistrate (Art. 96(c), subsection 1, Code of Criminal Procedure). During the search, everything must be done to guarantee the privacy of clients who are not involved in the investigation. The search is in general limited to files related to clients who are under investigation. No other files should be opened or looked at. The opinion of the lawyer that a document is privileged should be respected, unless it is obvious that this is not the case. In case of disagreement about the status of a document, the opinion of the dean can be asked. If no agreement is reached, the documents can be seized and will be sealed by the magistrate in a closed envelope if he or she is of the opinion that they are not privileged.113 The investigating authorities can ask permission to disclose the contents in case of great urgency. The magistrate will set a time limit for the lawyer to start a procedure before the district court to complain of the seizure of the documents. The decision of the district court may later be disputed by the accused when defending the case.

8

Tapping of telephone conversations with a lawyer 40. Tapping of telecommunications is allowed in case of suspicion relating to a criminal offence for which preventive custody is possible (Art. 126(m) Code of Criminal Procedure). The criminal offence should constitute a serious invasion of the legal order and tapping should be urgently required by the investigation at hand. The tapping order has to be issued by the examining magistrate. Tapped conversations will later be detailed in a police report. Apart from tapping, many similar powers – such as systematic observation – fall under the same rules as will be related here, for which tapping serves merely as an example. There is no rule forbidding the investigating authorities to tap telecommunication lines of a lawyer. The legislature has opted for an approach in which only afterwards will it be checked whether a lawyer participated in the tapped telecommunications. Article 126(aa) of the Code of Criminal Procedure provides that all reports and objects that are the result of the tapping order shall be added to the file. However, any communications to or from a lawyer (or any other person enjoying the professional–client privilege) to be found in

112 This was prescribed in Supreme Court, 20 June 1988, NJ 1989, 213. The search should be goal-oriented and only be directed towards those parts of the office where seizable material is likely to be found. 113 This opinion is formed afterwards. The dean has no right to be present then. Supreme Court, 19 May 2009, NJ 2009, 443.

388

The Netherlands

the reports or the objects have to be destroyed insofar as these communications are privileged. Other communications from or to these persons can only be added to the file with the permission of the examining magistrate. When these rules have not been observed, the said communications cannot be used as evidence.114 In extreme cases inadmissibility of the public prosecutor will follow, i.e. when the prosecution, by not respecting the attorney–client privilege, seriously infringes the principles of due process and thus intentionally or negligently impairs the rights of the suspect to a fair trial.115 When a lawyer is a suspect him- or herself, an exception to the attorney–client privilege could exist (see no 9 above). In that case, the investigating authorities ask the advice of the regional dean. In case of disagreement, the tapped communications are only added to the file with the permission of the examining magistrate.116 Obviously, this system is open to abuse, since the investigating authorities need to have knowledge of the contents of privileged information to decide whether or not this information has to be destroyed. Several lawyer associations fought a long battle with the state to establish a practice that would be more respectful towards their professional secrecy.117 In the end an agreement was reached, which entered into force on 1 June 2011.118 The agreement is based on a system of automatic number identification. All lawyers can pass the telephone and fax numbers they use on to a database, maintained by the Netherlands Bar Association. These numbers are communicated daily over a secured connection to the competent authorities. A system of automatic number identification will then switch off the recording device when the number is recognised, thus preventing privileged information from reaching the authorities. Of course, the rules described above still apply to communications that have been tapped.

9

The lawyer as witness 41. A lawyer can be called to testify as a witness, either in court or before any commission or institution that has been empowered to hear witnesses. In almost every regulation regarding the hearing of witnesses, the attorney– client privilege is recognised explicitly. Where this has been omitted, often 114 Supreme Court, 2 October 2007, NJ 2008, 374. 115 Supreme Court, 30 March 2004, NJ 2004, 376, recently applied in Supreme Court, 28 September 2010, NJ 2010, 532. Inadmissibility was accepted in Amsterdam District Court, 20 December 2007, NJ 2008, 532, where the police had tapped conversations of suspects with their lawyers for years. 116 Aanwijzing toepassing opsporingsbevoegdheden en dwangmiddelen tegen advocaten, 7 March 2011, Stcrt. 2011, 4981, chapter ‘Opnemen gesprekken’ (Tapping Conversations). 117 See, for instance, ECtHR, 25 November 2004, no 16269/02, Aalmoes v. The Netherlands. 118 Art. 4(a), Besluit bewaren en vernietigen niet-gevoegde stukken (Decision Regarding Saving and Destroying of Not-Added Documents).

389

Professional secrecy of lawyers in Europe

in ancient regulations, a general Dutch principle of law stating that, in the public interest, those professionals whose professional practice must be based on confidentiality cannot be forced to reveal this confidential information to the courts will entail that the privilege applies.119 The relation to the duty of professional secrecy has already been discussed (see no 10 above). A lawyer who is called to testify cannot refuse to appear as a witness. After all, not all of his knowledge is covered by the privilege and an appeal to it has to be examined for each question that is asked.120 However, in civil cases the matter can be submitted to the court before the actual hearing and the court may allow the lawyer not to appear at all.121

10

The lawyer and the press 42. It is generally accepted that a lawyer can, with the client’s consent, speak to the press in order to defend the client against allegations made in the press. However, the lawyer should refrain from conducting the case in the press rather than in the courtroom. In any case, the lawyer cannot disclose privileged information to the press and should even keep the interests of others in mind, although this is an impairment of the lawyer’s freedom of speech, resulting from his special position.122 Similar caution should be exercised when participating in social media like Facebook and Twitter.123

11

Powers of the tax administration and other authorities 43. Under Dutch law, no tax authority is entitled to compel a lawyer to disclose information which is protected by the attorney–client privilege. However, the lawyer, as an employer who is bound to withhold part of the wages of his personnel, cannot invoke the privilege when the tax authorities need information to calculate the amount due.124

12

State security service 44. The Dutch General Intelligence and Security Service (Algemene Inspectieen Veiligheidsdienst), the AIVD, is governed by the Law on Intelligence and Security Services 2002 (Wet op de inlichtingen- en veiligheidsdiensten 2002). 119 120 121 122 123

Supreme Court, 1 March 1985, NJ 1986, 173. Fernhout, Het verschoningsrecht van getuigen in civiele zaken, 304–5. Supreme Court, 19 September 2003, NJ 2005, 454. Court of Discipline, 14 March 2011, LJN YAO433. M. Aantjes, ‘Geen online vrienden voor advocaten’ (No Online Friends for Lawyers), Advocatenblad 2012, no 2, 32–3. 124 Art. 53(a) Algemene wet inzake rijksbelastingen (General Tax Law).

390

The Netherlands

The AIVD has been granted numerous and barely limited powers to collect data in order to guarantee national security. These powers can be used when no other means of collecting information are available, but only proportionally to the objective of using these powers (Art. 31). The information gathered by this intelligence service is secret and can only be shared with other state organs when certain requirements are met. There are no restrictions to the use of these powers in relation to professionals enjoying the professional–client privilege. When the information collected by the AIVD is used in criminal proceedings, all the requirements of a fair trial nevertheless have to be met.125 Although such a case has not yet occurred, it is likely that the right to a fair trial has been violated when AIVD information has been used that was obtained from the suspect’s lawyer, if that information was privileged. 125 Supreme Court, 5 September 2006, NJ 2007, 336.

391

24 Norway john christian elden ∗ Advokatfirmaet Elden DA

Preliminary note 393 1 Scope of and limitations on professional secrecy 393 A Statutory basis and implications 393 B Scope 396 C Persons subject to the duty of professional secrecy 397 D Limitations and derogations 397 E Law firms 398 F Legal assistants and staff 399 G External service providers 399 H Multidisciplinary associations 399 2 History 400 3 Supervision 400 A The Bar Association 400 B The courts 400 4 Sanctions 400 A Proceedings and sanctions 400 a Disciplinary proceedings and sanctions 400 b Criminal proceedings and sanctions 401 c Civil proceedings and damages 401 B Relationship between criminal sanctions and disciplinary sanctions 401 5 Duty to provide information to the authorities 401 A General 401 B Money laundering and terrorism 402 6 Treatment of a lawyer’s documents and correspondence in the context of judicial investigations 403 7 Search of a lawyer’s office 405 8 Tapping of telephone conversations with a lawyer 407 9 The lawyer as witness 409 10 The lawyer and the press 410 11 Powers of the tax administration and other authorities 411 12 State security service 411 ∗ Associate lawyers H˚akon Bodahl-Johansen, Jannicke Naustdal and Øyvind Precht-Jensen participated in producing this article.

392

Norway

Preliminary note 1. In Norway, legal professional secrecy is regarded as a fundamental guarantee of the rule of law promoting the interests of the client, respect for the administration of justice and the laws of society. The real background to the strict duty of professional secrecy is that it makes it possible for communication between client and attorney to occur in full confidence. The duty of professional secrecy is therefore a precondition for the profession of the lawyer. It is only when the client is confident that the information provided to the lawyer will not be released to others that the lawyer can obtain the information necessary to an optimal addressing of the client’s interests. The purpose of the duty of professional secrecy is thus to promote open and complete communication between attorney and client. The same factors that dictate the inviolability of the priestly confessional dictate the attorney’s duty of professional secrecy. The duty of professional secrecy fulfils a deep human need. It is a part of our civilisation to put the individual’s fundamental needs before the interests of the state, and this is also expressed by Article 8 of the European Convention on Human Rights.1 In recent years, however, Norwegian authorities have asserted that the duty of professional secrecy prevents criminal investigation.2 It has also been claimed that the duty of professional secrecy prevents lawyers from fulfilling their duty of disclosure and the authorities from gaining access to lawyers’ client files. More and more people believe that the duty of professional secrecy should yield. In this regard it is important to be aware of why we have a statutory duty of professional secrecy for lawyers and to understand the intrinsic value of this right for the client.3

1

Scope of and limitations on professional secrecy

A

Statutory basis and implications 2. The duty of professional secrecy does not have a particularly prominent place in Norwegian legislation. It is nevertheless a core value of the Norwegian law profession. By virtue of the justifications for the lawyer’s duty of professional secrecy, Norwegian lawyers are subject to a strict duty of professional secrecy. The key statutory provision that deals with the duty of professional secrecy is the General Civil Penal Code, Section 144. Under this provision, lawyers

1 It is thus a question of a vocational duty of professional secrecy. 2 Norwegian tax authorities have claimed that the duty of professional secrecy prevents detection of tax evasion. 3 Cf. also Berit Reiss-Andersen in her annual address to the Norwegian Bar Association in 2009: ‘The Attorneys’ Duty of Confidentiality: Under Threat from Good Intentions’.

393

Professional secrecy of lawyers in Europe

who disseminate confidential information may be punished with fines and imprisonment of up to six months. The provision reads: Clergymen of the Church of Norway, priests or pastors in registered religious communities, lawyers, defence counsel in criminal cases, conciliators in matrimonial cases, medical practitioners, psychologists, chemists, midwives and nurses, as well as their subordinates or assistants, who unlawfully reveal secrets confided to them or their superiors in the course of duty, shall be liable to fines or imprisonment for a term not exceeding six months. A public prosecution will only be instituted when requested by the aggrieved person or required in the public interest.

This is, however, a penal provision that affects the person who violates the duty of professional secrecy. In addition to this provision come a number of special provisions on the duty of professional secrecy in specific legislation. Other important provisions on the duty of professional secrecy include the Criminal Procedure Act (Section 119), which prohibits the courts from hearing witness testimony from lawyers on matters that fall within their duty of professional secrecy. This is an exception to the general duty to testify in criminal cases. There is a corresponding provision in the Civil Procedure Act (Sections 22–5) for civil cases. That is to say, the duty of professional secrecy takes precedence over the duty to testify (see S. 119 Criminal Procedure Act and Ss. 22–5 Civil Procedure Act). These provisions represent a prohibition on taking testimony from lawyers on matters confided to them in the course of their duty. It is thus not expressly enshrined in Norwegian legislation that the lawyer has a duty of professional secrecy. Many people would suggest that this is surprising, given its importance to the profession. 3. In addition to the duty of professional secrecy, lawyers have a duty of discretion through the ethical regulations to which all Norwegian lawyers are subject, the so-called ‘Rules of Conduct for Lawyers’. As noted above, the lawyers’ duty of professional secrecy is not positively enshrined in statute, but the Rules of Conduct state that: A lawyer is obliged, in accordance with rules of law, to respect confidentiality in relation to circumstances confided in him/her. Information which the lawyer receives in his/her profession as a lawyer shall be treated with discretion, also when the information is not covered by his/her legal duty of confidentiality. There is no time limit for duty of discretion.

The duty of professional secrecy also appears in the European Convention on Human Rights. Article 8 grants citizens the right of respect for their private life, their homes and their correspondence. Case law from the European Court of Human Rights lays down that this right must to a certain extent apply also to corporate bodies. Exceptions from the duty of professional secrecy must therefore be in accordance with Article 8 of the Convention. Moreover, the 394

Norway

duty of professional secrecy will usually be a criterion for ‘fair trial’ within the meaning of Article 6. 4. The lawyer’s duty of professional secrecy is sacred and fundamental to the relationship of trust that must exist between the lawyer and the justiceseeking public. The superior objective of the duty of professional secrecy is to facilitate a relationship of trust between client and lawyer, so that the client feels able to provide the information the lawyer needs to safeguard the client’s interests. A lawyer’s duty of professional secrecy undoubtedly constitutes an important guarantee of due process.4 Without a duty of professional secrecy, it is easy to imagine how many people would be unwilling to contact a lawyer at all. The duty of professional secrecy also functions as a protection of the client’s intimate sphere. In this context it must be emphasised that it is not merely that private individuals benefit from the lawyer’s duty of professional secrecy, but also corporate bodies need a sphere that is not accessible to all and sundry, in which they can share information about their plans, future patents and negotiations without this coming to the ears of outsiders. Without a duty of professional secrecy, getting legal advice would be a gamble for a company, endangering competitive and other commercial interests.5 A lawyer’s duty of professional secrecy and duty of discretion may be waived with the consent of the party who has the right to secrecy, which underlines the fact that the object of the duty is to protect the confidences that the client gives the lawyer rather than for the lawyer to protect what he or she comes to know in the course of his or her duties. 5. In Norwegian law it is an independent objective for the duty of professional secrecy to promote the administration of justice. This means that the lawyer’s duty of professional secrecy contributes to efficiency and due process. For this reason there is a need for the state to protect this right of the client. It therefore follows from the Norwegian Rules of Conduct for Lawyers that ‘the lawyer’s duty to maintain professional secrecy about the information he/she receives promotes the administration of justice as well as the client’s interests and therefore deserves special protection by the state’. The duty of professional secrecy facilitates people’s receiving legal assistance, and is therefore a fundamental part of the rule of law. Many people might avoid contacting a lawyer in cases involving sensitive information. This would undermine real access to legal assistance. Following from this, it is a key value that the duty of professional secrecy permits the lawyer to have the case well illuminated. The lawyer’s duty of professional secrecy thereby promotes materially correct decisions. The lawyer’s duty to keep the information he or she receives secret promotes the administration of justice as 4 NOU 2009:15, Chapter 29.2, on ‘The Fundamental Purpose of the Duty of Discretion’. 5 Cf. also Berit Reiss-Andersen, ‘The Attorneys’ Duty of Confidentiality’.

395

Professional secrecy of lawyers in Europe

well as the client’s interests, and therefore deserves special protection by the state.6 This is another vital aspect of a well-functioning rule of law. Furthermore, the duty of professional secrecy is necessary for the lawyer to be independent. If the lawyer has no right to pass the information on, he or she appears independent of anybody other than the client. Since the duty of professional secrecy promotes the free exchange of information between client and lawyer, the lawyer is enabled to provide materially correct advice. In this manner, more people will follow the current regulations, in line with the intentions of the authorities. The duty of professional secrecy also ensures that knowledge of justice actually accrues to the lawyer, so that the lawyer’s duty to induce the client to refrain from illegal acts is activated. The duty of professional secrecy thus has an important function in illuminating the case. It is through trust, both between client and lawyer and between the legal society and its parties, that the possibility to reach more materially correct decisions is promoted. The client must have confidence that the duty of professional secrecy applies also after he or she has confided; the lawyer must trust that the professional secrecy he or she has promised the client will not subsequently be abolished by the authorities.7

B

Scope 6. A lawyer’s duty of discretion covers all information with which the lawyer becomes acquainted in his or her profession as a lawyer and covers more than what is subject to professional secrecy. On the other hand, a lawyer’s duty of discretion is not absolute in the same way as the duty of professional secrecy. Violations of a lawyer’s duty of discretion can lead to disciplinary action and liability in damages, but not to criminal liability under the General Civil Penal Code. In 2005 the Disciplinary Board provided that: The rule on the duty of discretion is incorporated into the Rules of Conduct for Lawyers, Section 2.3.2, second paragraph. The duty of discretion in principle covers all information that the lawyer receives in a case, regardless of whether the information comes from his/her own client, witnesses or the opposing party; see in that connection section 2.3.1, first paragraph, which states the purpose of the rule on the duty of discretion. The purpose must be assigned weight in determining the scope of the provision. A lawyer’s duty of discretion is not an absolute prohibition against communicating information. A sound professional judgement may dictate that communicating it is the right thing to do. Factors in this evaluation will 6 Cf. Regulations for Advocates from the Ministry of Justice, FOR-1996-12-20-1161, Chapter 12. 7 Berit Reiss-Andersen, ‘The Attorneys’ Duty of Confidentiality’.

396

Norway

include the nature of the information, whom it concerns and from whom it comes. Information must not be disseminated beyond the circle necessary to safeguard the client’s interests.8

C

Persons subject to the duty of professional secrecy 7. A lawyer’s breach of the duty of professional secrecy may bring criminal sanctions: imprisonment for no longer than six months or fines. In addition, the lawyer’s duty of professional secrecy is contractual in nature. Furthermore, this duty is enshrined in the ethics code of the legal profession. Consequently, any breach of the duty of professional secrecy constitutes a violation of the ethical rules as well as of statutory provisions (see no 23 below). As stated above, professional secrecy is provided in the interest of the client. The latter is therefore in a position to waive the attorney–client privilege and instruct the lawyer to speak (see no 4 of this chapter).

D

Limitations and derogations 8. The attorney–client privilege is subject to a number of exceptions and derogations. First, the client is always entitled to waive the privilege (see no 4 of this chapter above). 9. Under the Norwegian Money Laundering Act the lawyer is obliged to report his or her own client’s suspicious transactions to the Norwegian National Authority for Investigation and Prosecution of Economic and Environmental Crime (Økokrim) (see no 30 of this chapter below).9 The lawyer is forbidden to inform the client of such reporting.10 10. As explained below in no 43 of this chapter, the client is not protected from a tax audit of the lawyer’s business. The tax authorities are authorised to copy computer servers in the lawyer’s office and bring them to the tax office for further examination. The copied material may include documents and information entrusted by the client. 11. Under the Norwegian Personal Data Act the lawyer must give the Data Protection Authority (charged with addressing personal data protection) access to his or her documents, premises and tools without hindrance from the duty of professional secrecy.11 12. Under Section 139 of the General Civil Penal Code the lawyer has a duty to avert serious crimes and must notify public authorities even if the information is in principle covered by the duty of professional secrecy; in other words, has been confided. 8 Case D092/2005. 9 The Money Laundering Act, Section 18; cf. Section 20. 10 Section 21 of the Act. 11 Section 44 Personal Data Act.

397

Professional secrecy of lawyers in Europe

13. The police have an extended right to make use of communications surveillance in their investigations, but in principle this does not apply to conversations between lawyer and client.12 Experience, however, shows that such conversations are often recorded and used in investigations even though they cannot be used as evidence in the main hearing. 14. The Aviation Accident Commission may obtain information without hindrance from the statutory duty of professional secrecy.13 15. To a certain extent and on specified conditions the Supreme Court has allowed for the lawyer, after the death of the client, to be released from the duty of professional secrecy.14 16. The Norwegian National Authority for Investigation and Prosecution of Economic and Environmental Crime can forward the information received from the lawyers in their money-laundering reports to the IRS and customs and excise services (see Section 30 of the Money Laundering Act). 17. In addition to these restrictions, which are enshrined in statute, there have been a number of proposals that have not yet been adopted. It is proposed that the tax authorities can demand that the lawyer provide information on transactions and underlying factual information about clients. It has been proposed further that public commissions of inquiry not be hampered by professional secrecy. This means that lawyers may have a duty of disclosure in all cases that occasion a public inquiry. The purpose of these rules is not to weaken the duty of professional secrecy, but to combat serious crime and undesirable acts. The question raised by Norwegian lawyers is, however, whether the duty of professional secrecy is ‘threatened by good intentions’.15

E

Law firms 18. In a law firm lawyers have a duty of professional secrecy towards each other. As a principle, a lawyer is prevented from sharing with a colleague privileged information concerning a client. But it could be that the agreement with the client states that more than one lawyer will be working on the case. The same agreement can also state that all of the firm’s lawyers will be working on the case. If so – and by accepting the agreement – the client consents to this kind of information being shared among the lawyers. It can also be that it must be interpreted as being in the lawyer’s commission that more than one lawyer – and their secretaries – must get this kind of 12 This follows from the General Civil Penal Code, Section 16(a). 13 Sections 12–16 Aviation Act. 14 See Rt. 2006, page 633. 15 Berit Reiss-Andersen, ‘The Attorneys’ Duty of Confidentiality’.

398

Norway

information in order for the assignment to be completed. This has not been clarified by Norwegian courts, however. In practice this kind of information is shared between the lawyers as it is necessary to complete the lawyer’s assignment. But, to be sure, Norwegian lawyers should include such a provision (that the lawyer may disclose information in the case to colleagues) in the agreement with the client – at least if the assignment is a civil one. The situation is different when lawyers work in a cost-sharing structure. In this case, the lawyers do not practise law jointly; they only share costs and office space. In this case, they need to keep separate files. A client of one lawyer is not a client of the others. The attorney–client privilege is therefore limited to information shared with the lawyer who represents the client and does not extend to the other lawyers who belong to the cost-sharing structure.

F

Legal assistants and staff 19. The General Civil Penal Code (Section 144) states that lawyers’ subordinates or assistants are subject to the duty of professional secrecy. A law firm’s employees such as secretaries, support staff and paralegals are, in other words, covered by the attorney–client privilege, even though they are not lawyers. The information shared with these individuals, with the intention that it be passed on to the lawyer handling the case, is covered by the attorney–client privilege. Indeed, they are considered representatives of the firm for which they work. In addition, the Rules of Conduct for Lawyers (Section 2(3)(3)) provide that lawyers must ensure that their employees fulfil the same duty of secrecy as themselves.

G

External service providers 20. The General Civil Penal Code does not require that the assistants are employed by the law firm. Non-employed assistants may thus be covered by the attorney–client privilege on the condition that they are working on a case. When confidential documents are sent outside the firm to non-lawyers, the duty of professional secrecy continues to apply. If documents or similar are sent out of the firm to others who are not lawyers, a consent from the client is required.

H

Multidisciplinary associations 21. A lawyer is entitled to co-operate, on a specific matter, with a professional who is not a lawyer, if the client agrees. To what extent respect for professional secrecy should be ensured rests on the scope of the client’s consent. The law firm may, in addition to legal practice, only conduct activities normally associated with such work. The requirement is that the additional business has a natural connection to the law firm’s practice. The aim is to encourage emergence of law firms that cover a larger academic spectrum. As 399

Professional secrecy of lawyers in Europe

an example, a law firm that specialises in building and construction law can hire a structural engineer. Otherwise, lawyers cannot form a professional association with nonlawyers. Cost associations with non-lawyers are acceptable, but should not result in the lawyers and non-lawyers working together on cases as part of the same association. In any event, privileged information shared by lawyers with non-lawyers in order to prepare the client’s case should remain protected.

2

History 22. The lawyer’s duty of professional secrecy is not to be found specifically regulated in older Norwegian legislation. However, professional secrecy was considered accepted and important – and it was thus not considered importunate to establish the principle by law. In 1793 the duty of secrecy in civil cases was established by law. In criminal cases the duty to testify still prevailed over the duty of secrecy. This changed with the introduction of the Penal Code of 1866.

3

Supervision

A

The Bar Association 23. The attorney–client privilege is also an ethical duty. The Rules of Conduct for Lawyers (Section 2(3)(2)) state that the lawyer must comply with the rules of professional secrecy. A violation of the ethical rules may result in disciplinary sanctions, such as a comment, reprimand or warning. The Norwegian Bar Association’s disciplinary committees handle cases regarding such violations. The decisions of the committees may be appealed to the public Disciplinary Board – a body outside the Bar Association.

B

The courts 24. Lawyers must, of course, abide by the law. The civil courts have jurisdiction to hear any claim for professional liability brought against a lawyer by a client. The criminal courts have jurisdiction over crimes committed by lawyers in the exercise of their profession. No special rules apply in this respect to lawyers.

4

Sanctions

A

Proceedings and sanctions

a

Disciplinary proceedings and sanctions

25. The Norwegian Bar Association’s disciplinary committees handle cases regarding breaches of professional secrecy on the basis of a complaint against 400

Norway

the lawyer. The lawyer must be a member of the Bar Association (membership of the Norwegian Bar Association is not compulsory). The procedure is in writing. The committees may impose disciplinary sanctions such as a comment, a reprimand or a warning. The committee can also file a report on the lawyer to the Supervisory Council for Legal Practice. The public Disciplinary Board handles complaints in the second instance, and in the first instance for lawyers that are not members of the Bar Association. The disciplinary sanctions are the same, as is the procedure of the case. The legal basis of the board can be found in the Act Relating to the Courts of Justice (Section 227). b

Criminal proceedings and sanctions

26. The General Civil Penal Code (Section 144) states that public prosecution takes place after the victim’s petition, or when demanded by public interest. Normal criminal procedure applies, as in other criminal cases. The sanctions are fines or imprisonment for no longer than six months. The lawyer may also be sentenced to lose his licence to practise as a lawyer. The statutory basis for the latter is the General Civil Penal Code (Section 29). c

Civil proceedings and damages

27. Violation of the attorney–client privilege is a breach of contract with the client and damages may be awarded if the breach has caused harm to the client. The client bears the burden of proof in this regard. The civil courts have jurisdiction over such proceedings, and appeal is possible to the courts of appeal and, finally, to the Supreme Court (on legal grounds only).

B

Relationship between criminal sanctions and disciplinary sanctions 28. Disciplinary and criminal sanctions are imposed independently and have in general no effect on each other. The Prosecution Instructions demand that the prosecution authority shall inform the Supervisory Council for Legal Practice when a charge which is made against a lawyer may affect the lawyer’s licence, or where there is a court decision resulting in loss of licence to practise as a lawyer (Sections 5(5) and 5(6)). The principle of ne bis in idem is not violated if an administrative sanction is followed by a criminal sanction like a fine or imprisonment.

5

Duty to provide information to the authorities

A

General 29. The duty of professional secrecy is under particular pressure from the many statutory provisions that govern the duty of disclosure of various matters (see nos 9 to 16 of this chapter). The duty of professional secrecy is also under 401

Professional secrecy of lawyers in Europe

threat from the statutory provisions that give the public authorities the right of access to correspondence between the lawyer and the client. The duty of professional secrecy is a benefit enjoyed by the citizenry. For the right to confidential contact with one’s lawyer to be set aside, there must be a statutory authority to do so. This follows from the Norwegian principle of legality, which dictates that any burdensome infringement of the rights of the citizenry requires a sufficiently clear and precise statutory authority in law. That such a statutory authority for infringement of the right to professional secrecy with one’s lawyer may be set aside also follows from Article 8 of the European Convention on Human Rights, in which the right to private life and correspondence is enshrined. The object is that the citizenry shall easily be able to predict when the right to respect for their correspondence must yield precedence. This also follows explicitly from a number of decisions of the Norwegian Supreme Court.16 Report no 74 to the Storting (1977–8) states that when a statutory right to demand information collides with a statutory duty of professional secrecy incumbent upon the party from whom the information is desired, the right to demand information must, as a main rule, yield precedence to the duty of professional secrecy. The provisions on duty of disclosure to public bodies must consequently give way to the duty of professional secrecy under other statutory provisions, unless clearly stated or assumed otherwise in these statutory provisions.

B

Money laundering and terrorism 30. Lawyers are subject to the Money Laundering Act when assisting clients in planning or carrying out financial transactions. In such cases, the lawyer must identify the client seeking advice before providing assistance. However, if the client is seeking assistance in ascertaining its legal position or with respect to litigation, the lawyer can accept the case before fulfilling the identification requirement. The Money Laundering Act (Sections 17 and 18) states that if the lawyer suspects that a transaction is related to the proceeds of an offence or offences covered by the Penal Code (Sections 147(a), 147(b) or 147(c) (terrorism)), further investigations to confirm or disprove suspicion shall be carried out. If such investigations do not disprove the suspicion, the lawyer shall forward information to the Norwegian National Authority for Investigation and Prosecution of Economic and Environmental Crime regarding the transaction and the circumstances which have led to suspicion. The lawyer shall provide all 16 HR-2008-00202-A (Transocean), para. 141. See also the decisions of the European Court of Human Rights of 27 September 2005 in Sallinen v. Finland, and of 25 March 1998 in Kopp v. Switzerland.

402

Norway

necessary information about the transaction and the suspicion. The information that is forwarded shall as far as possible contain a description of the grounds of the suspicion, including information about the suspect, information about possible third parties, possible account information, information about movements on the account, and information about the type and size of the transaction, as well as whether the transaction has been completed. Information about to whom the funds have been transferred and on the fund’s origin must also be included. As a supplement to this information, relevant documents should be enclosed or forwarded. Lawyers and other persons who provide legal assistance shall not be obliged to report on matters of which they have become aware through the work of determining the client’s legal status, or on matters which they have obtained before, during or after a trial, when the information is relevant to the litigation. The same applies to auditors and other reporting entities when they assist lawyers or other persons who provide legal assistance in the work mentioned. Sharing, in good faith, information with the Norwegian National Authority for Investigation and Prosecution of Economic and Environmental Crime does not lead to a breach of the duty of professional secrecy, nor can a liability for damages or prosecution be based on it.

6

Treatment of a lawyer’s documents and correspondence in the context of judicial investigations 31. Professional secrecy implies that lawyers must never hand over material to outsiders – not even the police – without a clear legal basis from the courts. In this context the lawyer’s duty of professional secrecy comes under enormous pressure, and, in a number of decisions, the Norwegian Supreme Court has outlined the relationship between the duty of professional secrecy and the prosecution authority’s right to search and seize documents whose content may be protected by the lawyer’s duty of professional secrecy. 32. Section 203 of the Criminal Procedure Act governs the right of the prosecution authority to seizure; that is, to take possession of physical objects or documents belonging to private individuals. Section 204 states that it is not permitted to seize documents or objects subject to the lawyer’s duty of professional secrecy. This means that there is a prohibition against the police seizing such documents and objects. The provision states that: Documents or anything else whose contents a witness may refuse to testify about pursuant to Sections 117–121 and 124–125, and which are in the possession either of a person who can refuse to testify or of a person who has a legal interest in keeping them secret, cannot be seized. In so far

403

Professional secrecy of lawyers in Europe

as a duty to testify may be imposed in certain cases pursuant to the said provisions, a corresponding power to order seizure shall apply.

It follows from the above wording that there is a seizure prohibition. The provision makes exception from the right to seizure where the witness is not allowed to testify and where there are certain forms of witness exemption. For the rules on the duty of professional secrecy in the Criminal Procedure Act (Section 119), there is consequently a prohibition against the courts’ hearing such testimony and it is, moreover, a criminal offence under the Penal Code (Section 144) for the vocational group in question to violate the duty of professional secrecy. Of particular practical importance is the fact that there is no right to seize information subject to an unconditional duty of professional secrecy, such as confidences to a doctor, priest or lawyer under the Penal Code (Section 119). This is an especially practical exemption with a view to lawyers’ and doctors’ duties of professional secrecy. 33. The Supreme Court has found that in general there must be a presumption that documents and their equivalent located in the office of an independent, privately practising lawyer are subject to the duty of professional secrecy and thereby subject to the seizure prohibition under the Criminal Procedure Act (Section 204; see also Section 119). In a decision of 7 September 2006, the Supreme Court also laid down that the confidence criterion in the provision on the duty of professional secrecy embraces ‘[w]hat the lawyer by virtue of his/her office and as part of the relationship with the client obtains or gains access to on behalf of the client’. According to the Supreme Court, this includes not only ‘what has been told to the person concerned, but also what appears from handed-over or obtained documents . . . and from the situation in general’.17 34. But it is only the proper legal practice that is protected under the Criminal Procedure Act. Consequently, the Appeals Committee of the Supreme Court did not find anything wrong with the Court of Appeal’s interpretation when it found that money transfers that took place to or from clients via accounts controlled by the lawyer ‘in principle’ lay outside what can be regarded as legal practice.18 It is only ‘the proper legal practice’ – legal assistance and advice – that is covered by the evidence prohibition in Section 119 of the Criminal Procedure Act.19 In cases where a lawyer is conducting real-estate broking or asset management, or is an administrator for a decedent estate, the evidence exclusion in Section 119 will in general not apply to this business. If a legal question arises in connection with real-estate brokerage or asset management about which the client needs advice, the legal counsel will, however, be covered by the evidentiary prohibition in Section 119. 17 Rt. 2006, page 1071.

404

18 Rt. 2008, page 645.

19 Rt. 1999, page 911.

Norway

35. In addition, it is a condition that the documents must be in the possession of ‘either . . . a person who can refuse to testify or . . . a person who has a legal interest in keeping them secret’. This means that seizure may not be made of documents in lawyers’ offices that are confidential and about which the lawyer is thereby unable to testify. The provision does not then discriminate on the basis of whether the exempt document is found on the accused or on his or her lawyer. The vital issue is that the content (the confidence) is protected. 36. Under Section 204, second paragraph, of the Criminal Procedure Act there is an exception to this immunity in that the seizure prohibition of Section 204, first paragraph, does not apply if the documents contain ‘confidences between persons who are suspected of being accomplices to the criminal act’. Confidences between guilty parties, therefore, are not protected. For example, if the accused and his or her lawyer are suspected of having forged documents together, their correspondence on this may be seized.

7

Search of a lawyer’s office 37. The duty of professional secrecy also involves a prohibition against seizure of material containing confidential information (see Section 204 of the Criminal Procedure Act). The Norwegian Supreme Court20 has held that there must in principle be a presumption in favour of documents and their equivalents located in the office of an independent, privately practising lawyer being subject to the duty of professional secrecy and thereby immune to seizure. The lawyer has a right to be present as an observer during the search in order to address the duty of professional secrecy and the accused’s interests. The lawyer shall, immediately after the search, be given a receipt of what has been seized pursuant to the Criminal Procedure Act (Sections 207 and 208). The Oslo District Court entered a judgment under which the state was declared liable for damages, inter alia for having unlawfully refused to allow the suspect to have his lawyer present.21 Where the Criminal Procedure Act, Section 204, is invoked by the lawyer during the search in his office, rules have been promulgated for what procedure shall be followed. The ground rules were laid down by the Supreme Court: Documents that their possessor claims, prior to or during the search, are immune to seizure under Section 204, may not be reviewed by the police during the search. If the police consider that the documents are not covered by the provision and may have a content that can justify seizure, they must be sent to the Court of Examining and Summary Jurisdiction, 20 Rt. 1996, page 1081. 21 The judgment is published in RG 1994, page 1024. Judgment of 24 November 1993 in case no 92-4962 A-24.

405

Professional secrecy of lawyers in Europe

which will decide the question of seizure. In the case in question, it was desired to search the accused’s safe, and he claimed it contained, inter alia, confidential correspondence between himself and his defence counsel.22

Thus it is the District Court that shall clarify whether the material in question may be seized. It is the District Court – and not the prosecution authority – that decides whether the underlying criteria for the seizure are present. 38. After packing cases and the result of the rough seizure at the lawyer’s office have been secured and sent to the court, the court must review this. In this respect the Oslo District Court stated in its decision of 30 April 2005: In principle the police . . . cannot make provisional seizures of documents of the above-mentioned character on the authority of the Criminal Procedure Act, Section 203. This applies unconditionally if it is clear that the documents in question are of such a character. It is, however, not sufficient to argue vis-`a-vis the police that the documents are of such a character as to fall under the seizure prohibition. To the extent that the police consider that the documents are not embraced by the seizure prohibition and may have a content that justifies seizure, the police may take provisional seizure of these, and then take the seizure prohibition before the District Court, cf. Rt. 1986–1149 and Bjerke/Keiserud: Straffeprosessloven (the Criminal Procedure Act), Volume I, third edition (2001) page 718. The Court finds that the Criminal Procedure Act, Section 205, third paragraph, has corresponding application in cases of this character.23

If the court is to review the material secured by the search, a description of the practical solution has been provided by a decision of Nordmøre District Court dated 30 November 2005: Question of what procedure is to be followed when the Court is to consider the seizure of documents from a lawyer’s office. Two lawyers were charged with financial breach of trust, and the police had conducted a search of their offices. The material was handed over to the District Court without the police having reviewed it. The District Court decided that it would review the documents itself without the accused’s counsel’s being allowed to review them or comment beforehand. The decision was appealed to the Court of Appeal, and pursuant to the Criminal Procedure Act, Section 381, the District Court revised its decision. The accused’s counsels were to be allowed to review the material in its entirety and comment specifically on the seizure immunity in relation to each individual document. The District Court would thereafter take a decision under the Criminal Procedure Act, Section 204, cf. Section 119, regarding what material was not subject to the duty of professional secrecy. The police would have this handed over to them in order to evaluate whether to take seizure in it, cf. the Criminal 22 Rt. 1986, page 1149.

406

23 RG 2005, page 1446; TOSLO-2005-40109.

Norway

Procedure Act, Section 205 and Section 203. If seizure was made, this may again be brought before the court by the accused under the Criminal Procedure Act, Section 208.24

At this stage of the case, it is thus only the defence counsel and the judge who have access to the material, not the prosecution authority, which is normally precisely the party against whom the duty of professional secrecy in these cases applies. When the court is considering whether there exists due cause as a basis for being able to review the seizure at all, as described above there must exist such cause regardless of the content of the documents that are to be reviewed. Search and seizure may not, therefore, be used as a fishing expedition to establish due cause.25

8

Tapping of telephone conversations with a lawyer 39. The principle is that all conversations and all communication between lawyer and client are protected against outside access – including from the police and the courts. The purpose of the duty of professional secrecy is not to protect the lawyer, but to protect the client’s confidences and preserve the trust that is necessary to the performance of a lawyer’s assignment. The duty of professional secrecy is a due-process guarantee and a precondition for a functioning rule of law. This is enshrined in both national and international ethical rules for lawyers (including in the Rules of Conduct for Lawyers, Section 2(3)(1)). It follows from ECtHR case law that so-called ‘lawyer conversations’ are protected under Articles 8 and 6(3) of the European Convention on Human Rights (see Chapter 1 of this book). Regarding the use of investigative methods such as communications surveillance, it follows with practical necessity that the police will record all conversations an accused has with the outside world through a particular telephone or computer or in a particular room – including any conversations to which nobody shall have access. Such situations are not specially regulated in the Criminal Procedure Act Chapter 16(a). The Criminal Procedure Act (Section 216(g)) nevertheless regulates the police’s duty to destroy surveillance material obtained pursuant to Sections 216(a), 216(b) and 216(m) on room surveillance (regarding Chapter 16(b) see below) in two situations: (i) where the material is without significance for the prevention or investigation of criminal offences (litra a), or so-called ‘surplus material’; and (ii) where the materials ‘relate to statements concerning which the court may not, pursuant to the provisions of Sections 117 to 120 and 122, require the person concerned to testify, unless said person is suspected 24 TNOMO-2005-171347.

25 Rt. 1996, page 1081 and Rt. 1986, page 1149.

407

Professional secrecy of lawyers in Europe

of a criminal act that might have provided independent grounds for control’ (litra b). As has been shown, lawyer conversations are covered by the provision’s litra b (see Section 119 of the Criminal Procedure Act). The provision also lays down that the duty to delete such conversations applies ‘as soon as possible’. Confidential conversations are not a part of the documents in the case; access cannot be given to the suspect’s communication with a lawyer (or doctor, priest etc.).26 The conversations shall therefore be deleted without waiting for procedural steps such as petitions for access and so on, in contrast to ordinary surplus material, on which see below. 40. Even if lawyer conversations cannot be used as evidence, it is easy to imagine how the police in their investigation may (informally) make use of what the suspect says to his lawyer before the conversations are deleted. The law does not solve the following problem: does it follow from the wording of the Criminal Procedure Act (Section 216(g)) (‘statements’) that the police at their own discretion can listen to a lawyer conversation if the conversation does not immediately contain any confidences in the true sense of the term, but, for example, is introduced by a conversation about the weather or other trivia? One might go even further. Do the police have a legal right to listen to lawyer conversations recorded in full, and thereby obtain knowledge of their content, before they are deleted as evidentiary material? Or, the other way round: can it be interpreted into the Act that the police are prohibited from listening to the suspect’s confidential conversations with his or her lawyer? In the report of the Method Control Committee, NOU 2009:15, the issue is discussed normatively (Chapter 24, ‘Storage and Deletion of Material Obtained by Use of Hidden Coercive Means’). Chapter 24(6) states that the majority of the Committee cannot see that the rule on deletion in the Criminal Procedure Act (Section 216(g) litra b (as it now reads)) in itself means a prohibition of the police listening to recordings of confidential conversations before they are deleted. The Committee’s opinion of what can be derived from the Act does not clarify what is actually current law. The Committee’s minority disagrees with that view and states that we cannot live with a situation that in reality means that we can with open eyes let professional secrecy and protection under Article 8 of the Convention yield precedence in case after case until we are ‘sure’ that protection exists. The presumption must be that professional secrecy is protected, and there must be due cause against the lawyer in the light of other evidence before surveillance can take place . . .

26 Rt. 2005, page 1137.

408

Norway

A working group appointed by the Norwegian Bar Association worked on this issue in 2010–2011, and concluded that an interpretation of all sources of law led to the conclusion that it is forbidden to listen to confidential conversations that are recorded in communications surveillance.27 Factors that are argued in defence of a listening prohibition – and not merely a deletion duty – for the police include the fact that it is the communication itself with persons covered in the Criminal Procedure Act (Section 119) that is protected. It cannot be up to the police to distinguish between what are confidences and what is more general conversation and to decide where this boundary runs in practice. It is also argued that support for this view can be derived from statements in decisions published in Rt. 2005, page 196; Rt. 2009, page 396; and Rt. 2005, page 1137. The advice from the Bar Association’s working group is, first, that lawyers ought to make it very clear at the beginning of a conversation that they are calling in their capacity of lawyer, and that the conversation is subject to attorney–client privilege and contains confidences that are protected by both national and international rules on protection of professional secrecy. If they are applying the regulatory system loyally, the police ought then – as soon as it is clarified that the conversation is confidential – cease the surveillance or switch off the recording and delete the conversation. All lawyers ought, under all circumstances, to be aware that all conversations with clients can be listened to – as long as this has not been sufficiently clarified by the legislator. In the course of the autumn of 2011, however, the Norwegian Bar Association worked towards a clarification of current law in this area.

9

The lawyer as witness 41. A lawyer can be called to testify in court as a witness. However, the court is prohibited from receiving testimony from the lawyer regarding information confided in the course of duty (Section 119 Criminal Procedure Act and Sections 22–5 Dispute Act). The Criminal Procedure Act Section 119 reads: Without the consent of the person entitled to the preservation of secrecy, the court may not receive any statement from clergymen in the state church, priests or pastors in registered religious communities, lawyers, defence counsels in criminal cases, conciliators in matrimonial cases, medical

27 See the full report at www.advokatforeningen.no/PageFiles/21645/Rapport om vern av fortrolig kommunikasjon mellom advokat og klient ved kommunikasjonskontroll etter straffeprosessloven.pdf.

409

Professional secrecy of lawyers in Europe

practitioners, psychologists, chemists, midwives or nurses about anything that has been confided to them in their official capacity. The same applies to subordinates and assistants who in their official capacity have acquired knowledge of anything that has been confided to the persons mentioned above.

This is a provision that prohibits any evidence that violates the statutory professional secrecy. The court must refuse the testimony even if the witness wants to testify. It is important to stress that a violation of the statutory professional secrecy is punishable (see Section 144 Penal Code). There is a clear limitation in the law’s condition ‘confided to them in their official capacity’. Anything confided to them privately will not be included by this condition (cf. Rt. 1992, page 894). Not all work carried out by a lawyer is included in this condition of the law. As an example, it is only the proper legal practice that falls under the provision. The Supreme Court has assumed that this includes the lawyer’s role as counsel or legal adviser (see Rt. 2008, page 645). Earlier, it was assumed that information about whether or not a client relationship exists was not covered by the statutory professional secrecy in the Penal Code (Section 144) as long as the disclosure of the client did not reveal information that has been confided to the lawyer (see Rt. 1999, page 911). After the decision of the Supreme Court in Rt. 2010, page 1638, it is now clear that the name of the client is included in the statutory professional secrecy. The Supreme Court found that the lawyers’ professional secrecy prohibited a law firm from complying with a surrender order and handing over information to the Norwegian National Authority for Investigation and Prosecution of Economic and Environmental Crime about the recipient of three specified transactions through the firm’s client account (see Sections 119 and 210 Criminal Procedure Act).

10

The lawyer and the press 42. The Rules of Conduct for Lawyers (Section 2(4)(2)) state that a lawyer should exercise special restraint when it comes to media coverage of impending or pending litigation where he or she is or has been committed. The lawyer can under no circumstances disclose privileged information to the press without the client’s consent. One must consider that the clients on many occasions are of the opinion that they do not wish anything written about their case, even if there is reason to redress errors in the press. Regarding court cases, the situation in some countries is that it is almost prohibited to contact the press. The strict rules that can be found in the UK

410

Norway

regarding ‘conflict of interest’ in relation to the courts have no counterpart in Norway – and the time for such rules has probably not arrived yet. Regarding administrative cases, the situation could lead the lawyer to take the initiative towards the press in order to attract attention and debate to the case – of course, in the interest of the client. In relation to court cases, this would be different – both in criminal and civil cases. In such cases restraint should be shown in taking the initiative towards the media. The situation may be different if the case has already been covered by the media. In such situations it can at times be necessary for the lawyer to bring forward the client’s opinions in order to balance and correct what has already been written. This would mostly apply in criminal cases, where the criminal act in itself often will trigger media publicity with follow-ups on the investigation, the charges and the court case itself. In such cases, the lawyer must also remember that it is the interest of the client that must be safeguarded. Normally, and in any case if there is sufficient time, the client’s consent should be provided.

11

Powers of the tax administration and other authorities 43. The client is not protected from a tax audit of the lawyer’s business. The lawyer is obliged to give the tax assessment authorities access to the material without the lawyer being able to invoke the duty of professional secrecy for the client.28 The tax authorities can, in this work, copy computer servers in the lawyer’s office and bring them to the tax office for further examination. The copied material may include documents and information entrusted by the client.

12

State security service 44. The Norwegian state security service (Politiets sikkerhetstjeneste) is subject to the same rules concerning investigation and investigative methods as the rest of the police in Norway. In such cases very intrusive investigative methods are often involved, and it is thus absolutely necessary that the basic rules in the the Criminal Procedure Act are respected by the state security service. This applies in all cases concerning tapping of telephones, outside surveillance or observation, room surveillance, etc. The correspondence between the lawyer and the client must nevertheless be respected. 28 Tax Assessment Act, Section 4–10 no 2.

411

25 Poland wojciech marchwicki Advocate, member of the Professional Ethics Committee at the National Bar Council

˙ marek niedu zak Advocate, assistant lecturer at the Department of Theory and Philosophy of Law at Kozminski School of Law

Preliminary note 413 1 Scope of and limitations on professional secrecy 413 A Statutory basis and implications 413 B Scope 414 C Persons subject to the duty of professional secrecy 417 a Advocates and legal advisers 417 b Foreign lawyers 417 D Exceptions and limitations 420 E Law firms 425 F Legal assistants and staff 425 G External service providers 427 H Multidisciplinary associations 427 2 History 427 3 Supervision 429 A The bar associations 429 B The courts 429 4 Sanctions 430 A Proceedings and sanctions 430 B Relationship between criminal sanctions and disciplinary sanctions 431 5 Duty to provide information to the authorities 432 A Money laundering and terrorism 432 B Collective settlement of debts 433 6 Treatment of a lawyer’s documents and correspondence in the context of judicial investigations 434 7 Search of a lawyer’s office 435 8 Tapping of telephone conversations with a lawyer 435 9 The lawyer as witness 436 10 The lawyer and the press 438 11 Powers of the tax administration and other authorities 438

412

Poland

12 State security service 13 Future, and conclusion

438 439

Preliminary note 1. There are two similar free legal professions in Poland – advocate (adwokat), which is comparable to a certain extent to the English barrister, and legal adviser (radca prawny), somewhat analogous to the English solicitor – whose members belong to two separate and independent bars, and therefore the rules concerning the lawyer’s obligation to maintain the confidentiality of information entrusted to the lawyer in connection with his or her practice are codified in separate statutes and internal bar regulations. The rules for the functioning of the two legal professions are set forth in separate legal acts: the Law on Advocates and the Act on Legal Advisers. Whereas advocates work only as independent practitioners, a legal adviser may also practise the profession as an employee (in-house lawyer). The division into these two professions and a lawyer’s membership of one of the corresponding bar associations is not of merely formal significance, but has some bearing on the scope of protection of professional secrecy (discussed below).

1

Scope of and limitations on professional secrecy

A

Statutory basis and implications 2. The following laws are of particular relevance in analysing the duty of lawyers in Poland to maintain professional secrecy: the Constitution of the Republic of Poland dated 2 April 19971 (the Constitution); the Law on Advocates dated 26 May 1982;2 the Act on Legal Advisers dated 6 July 1982;3 the Act on Performance of Legal Services in the Republic of Poland by Foreign Lawyers dated 5 July 20024 (the Act on Foreign Lawyers); the Act on Counteracting Money Laundering and Financing of Terrorism dated 16 November 20005 (the Act on Money Laundering); the Penal Code dated 6 June 1997;6 the Criminal Procedure Code dated 6 June 1997;7 the Petty Offences Procedure 1 2 3 4 5 6 7

Journal of Laws Dz. U. 1997, no 78, item 483, as amended. Journal of Laws Dz. U. 1982, no 16, item 124, as amended. Unified text: Journal of Laws Dz. U. 2010, no 10, item 65, as amended. Journal of Laws Dz. U. 2002, no 126, item 1069, as amended. Unified text: Journal of Laws Dz. U. 2010, no 46, item 276, as amended. Journal of Laws Dz. U. 1997, no 88, item 553, as amended. Journal of Laws Dz. U. 1997, no 89, item 555, as amended.

413

Professional secrecy of lawyers in Europe

Code dated 24 August 2001;8 the Civil Procedure Code dated 17 November 1964;9 the Administrative Procedure Code dated 14 June 1960;10 and the Law on Procedure before the Administrative Courts dated 30 August 2002.11 The following codes of professional ethics are of particular importance: the Code of Ethics for Advocates,12 and the Code of Ethics for Legal Advisers.13

B

Scope 3. It is commonly accepted in the Polish doctrine and case law that legal professional secrecy serves not so much to protect the lawyer as to protect the interests of the client, and in a broad sense to protect the interests of justice. This position derives from a belief that the existence of a guarantee of discretion with respect to information entrusted to qualified professionals is a necessary condition for the effective realisation of the right to a defence and the right to professional representation before courts and other state bodies. Under Article 42(2) of the Constitution, ‘Anyone against whom criminal proceedings have been brought shall have the right to a defence at all stages of such proceedings. He or she may, in particular, choose counsel or avail him- or herself – in accordance with rules specified by statute – of counsel appointed by the court.’ Also of great relevance for assessing the scope of professional secrecy are Article 47 (‘Everyone shall have the right to legal protection of his private and family life and of his or her honour and good reputation, and to make decisions about his or her personal life’) and Article 51(1) (‘No one may be obliged, except on the basis of statute, to disclose information concerning his or her person’) of the Constitution. Under Article 6(1) of the Law on Advocates, ‘An advocate is required to maintain in secrecy anything he or she learns in connection with providing legal assistance.’ Article 6(2) provides, ‘The duty to maintain professional secrecy may not be limited in time.’ Similarly, in the case of legal advisers, ‘A legal adviser is required to maintain in secrecy anything he or she learns in connection with providing legal assistance. The duty to maintain professional secrecy may not be limited in time’ (Art. 3(3)–(4) of the Act on Legal Advisers). Neither the Law on Advocates nor the Act on Legal Advisers makes the duty to maintain secrecy dependent on whether or not the information was entrusted 8 9 10 11 12 13

414

Unified text: Journal of Laws Dz. U. 2008, no 133, item 848, as amended. Journal of Laws Dz. U. 1964, no 43, item 296, as amended. Unified text: Journal of Laws Dz. U. 2000, no 98, item 1071, as amended. Journal of Laws Dz. U. 2002, no 153, item 1270, as amended. Unified text available at www.nra.pl/nra.php?id=249. Unified text available at www.kirp.pl/Krajowa-Rada-Radcow-Prawnych/Wewnetrzne-aktyprawne-KRRP/Inne.

Poland

to the advocate or legal adviser with a reservation that it be maintained in secrecy. Secrecy will extend to information obtained from the client, or from witnesses or third parties, or even from the adversary. This position was adopted specifically by the Polish Supreme Court in a ruling of 29 November 1963: As now, the broad extent of the concept of the duty to maintain professional secrecy does not permit a holding that only what is learnt from one’s own client is a secret. Any information received from any source (including the advocate’s own observations) constitutes a secret – and not only with respect to information concerning the advocate’s client in the given matter, but also concerning other persons, in particular a co-accused. A similar scope of understanding of the duty of professional secrecy of defence counsel may be explained by the need to establish confidence in the discretion of advocates, which in turn enables them to perform their tasks properly.14

4. The great importance of legal professional secrecy for the justice system is confirmed in judicial rulings. In a resolution of 16 June 1994, of crucial significance for interpretation of the scope of professional secrecy under Polish law, the Supreme Court held: The professional secrecy of advocates constitutes an extremely important guarantee of the proper performance of the profession of advocate. Provision of proper legal assistance by advocates depends on confidence in their discretion, and societal confidence in advocates is fundamentally defined by respect for advocates’ professional secrecy. It is important in this respect that provision of legal assistance by advocates is a factor assuring the correctness of the process of applying the law, in particular as it jointly defines the proper functioning of the justice system. As a condition for proper performance of advocates’ professional duties with respect to providing legal assistance, professional secrecy of advocates also constitutes a guarantee of effective realisation of the functions and tasks of the Bar set forth in Article 1(1) of the Law on Advocates. It serves to protect the interests of persons receiving legal assistance from advocates, but it is also of essential importance for the Bar, and, for all of the reasons indicated above, also for the process of applying the law, particularly for the justice system.15

The Constitutional Tribunal has stated, in turn: ‘Professional secrecy of legal advisers was introduced primarily in the interest of their clients . . . Professional secrecy also represents an essential guarantee and necessary condition for practice of the profession of legal adviser.’ The tribunal also stressed, 14 Resolution of the Polish Supreme Court of 29 November 1963 (Case no VI KO 61/62). 15 Resolution of the Polish Supreme Court of 16 June 1994 (Case no I KZP 5/94).

415

Professional secrecy of lawyers in Europe

A person seeking legal assistance decides whom to entrust with information concerning himself, and possibly whether to agree to further disclosure thereof, and a member of the legal profession (which is also a profession of public trust), as the repository of the secret, generally has a duty to maintain it . . . The existence of a system for providing legal assistance independent of the organs of public authority is also a requirement for a democracy under the rule of law. A condition for the proper functioning of this system is that persons in need may without hindrance provide complete information about their own factual and legal situation to the persons assisting them. In consequence, the protection of the secrecy of information obtained during the course of providing legal assistance (particularly including the handling of a judicial case) derives also from the principles of the rule of law, and the institutional guarantee thereof is provided by Article 17(1) of the Constitution.16

5. The duties connected with maintaining secrecy have been specified to a large degree in internal regulations of both of the Polish bars, in their codes of ethics. The codes specify the scope of responsibility of advocates and legal advisers for actual and effective maintenance of the secrecy of information provided to them in confidence. Under Section 19(1) of the Code of Ethics for Advocates, an advocate is required to maintain in secrecy and secure against disclosure or unintended use everything he or she learns in connection with performance of professional obligations. Thus an advocate is personally required not only to refrain from disclosing information constituting a secret, but also to take measures to prevent disclosure of such information by someone else. The Code of Ethics for Advocates expressly refers as well to protection of documents. Under Section 19(2), materials located in the advocate’s files are subject to professional secrecy. Secrecy also extends to all reports, notes and other documents, regardless of where they are located, concerning a matter obtained from the client or from other persons (S. 19(3)). The Code of Ethics for Legal Advisers, in turn, provides that the duty to maintain secrecy extends to all information obtained by the legal adviser, regardless of the form thereof or the manner in which it is documented (Art. 12(2)). The duty to maintain professional secrecy includes not only a prohibition against disclosure of information, but also a prohibition against use thereof in the legal adviser’s own interest or in the interest of a third party (Art. 12(3)). A legal adviser also may not act professionally for any entity if to do so would threaten a violation of the duty to maintain professional secrecy (Art. 16). The codes of ethics are binding on advocates and legal advisers, and violation of the rules established therein may subject the lawyer to disciplinary 16 Judgment of the Polish Constitutional Tribunal of 2 July 2007 (Case no K 41/05).

416

Poland

sanctions. The codes do not constitute universally binding law, however, and cannot serve as the grounds for a ruling in the process of application of the law by state authorities or courts. Nonetheless, in practice they may be taken into consideration and cited as an argument supporting an interpretation of regulations of law.17

C

Persons subject to the duty of professional secrecy

a

Advocates and legal advisers

6. The duty to maintain professional secrecy is clearly binding on a lawyer to whom information has been entrusted in connection with his or her professional practice. As mentioned above, there are two separate legal professions in Poland: advocates (adwokaci) and legal advisers (radcowie prawni). The division into these two professions and a lawyer’s membership of one of the corresponding bar associations is not of merely formal significance, but has some bearing on the scope of protection of professional secrecy. In the context of the subject matter of this article, there are two main differences between advocates and legal advisers that should be highlighted: 1. A legal adviser has a limited capacity to appear in a criminal proceeding (legal advisers may not act as defence counsel).18 2. A legal adviser may practise the profession as an employee (in-house lawyer).19 The Law on Advocates and the Act on Legal Advisers are applicable to trainees seeking admission to the respective professions. b

Foreign lawyers

7. A third and specific group of lawyers required to maintain professional secrecy constitutes foreign lawyers performing their services in the territory of Poland. The rules for providing services and conducting professional practice 17 In the order dated 20 April 2005 (Case no I KZP 6/05), concerning professional secrecy imposed on persons practising under the Act on Protection of Mental Health, the Polish Supreme Court stated that the professional requirement for discretion is derived not only from legal norms but also from ethical norms. The Constitutional Tribunal took a similar position in the judgment of 22 November 2004 (Case no SK 64/03), concerning professional secrecy imposed on legal advisers. 18 Under Article 82 of the Criminal Procedure Code, only a person authorised to defend the accused under regulations concerning advocates may appear as defence counsel. A legal adviser may, however, appear as attorney for a party other than the accused (Art. 87, para. 1, Criminal Procedure Code, in connection with Art. 88). 19 Under Art. 4(b)(1)(1) of the Law on Advocates, an advocate may not practise the profession if he or she is in an employment relationship. The only exception provided is for scholarly and academic staff. The regulations concerning legal advisers do not include such restrictions on employment.

417

Professional secrecy of lawyers in Europe

by foreign lawyers in Poland are set forth in the Act on Foreign Lawyers.20 Under that Act, it is possible to provide permanent legal services upon admission to the list maintained by the regional bar council (for advocates) or the regional chamber of legal advisers, or to provide cross-border services as a kind of adjunct to the lawyer’s main practice in another country. Thus the Act addresses four situations which entail a different range of rights and responsibilities of the lawyer: (i) a permanent practice in Poland by a lawyer from the European Union (no 8 below), (ii) a permanent practice in Poland by a lawyer from outside the European Union (no 9 below), (iii) cross-border services in Poland by a lawyer from the European Union (no 10 below), and (iv) crossborder services in Poland by a lawyer from outside the European Union (no 11 below). These are discussed in the following paragraphs. 8. A lawyer from the European Union admitted to the list maintained by the regional bar council is authorised to conduct a permanent practice in a scope corresponding to the profession of an advocate, and a lawyer admitted to the list maintained by the regional chamber of legal advisers in a scope corresponding to the profession of a legal adviser (Art. 13(1) Act on Foreign Lawyers). Unless otherwise provided by statute, a lawyer from the European Union admitted to the list maintained by the regional bar council has the same rights and responsibilities as an advocate, or if admitted to the list maintained by the district chamber of legal advisers, the same rights and responsibilities as a legal adviser. This includes the obligation to comply with the rules of professional ethics (Art. 14). 9. A lawyer from outside the European Union who is admitted to the list is authorised, as part of a permanent practice, only to provide legal advice and prepare legal opinions concerning the law of the lawyer’s home jurisdiction or international law, in a scope corresponding to the profession of advocate or legal adviser (Art. 18, Act on Foreign Lawyers). In conducting a permanent practice, a lawyer from outside the European Union is subject to the conditions for practice of the profession and the rules of professional ethics applicable to advocates or legal advisers, as the case may, depending on the list to which the lawyer is admitted (Art. 20(1)). This means that while the foreign lawyer is required to maintain professional secrecy, under pain of disciplinary sanctions, there are no express regulations under which, within the scope of his or her actions, the lawyer would assume the rights and responsibilities of a Polish advocate or legal adviser. 20 This Act implements the principle of freedom to perform business activity, which with respect to provision of legal services is addressed by two directives: (i) Council Directive 77/249/EEC of 22 March 1977 to facilitate the effective exercise by lawyers of the freedom to provide services, and (ii) Directive 98/5/EC of the European Parliament and of the Council of 16 February 1998 to facilitate practice of the profession of lawyer on a permanent basis in a Member State other than that in which the qualification was obtained.

418

Poland

10. A lawyer from the European Union is authorised to provide cross-border services using the professional title obtained in the home jurisdiction, expressed in the official language of that country, with an indication of the professional organisation in the home jurisdiction to which he or she belongs, or the court before which he or she is entitled to appear under the law of that country. Within the limits of such authority, the lawyer may perform any actions which an advocate or legal adviser is authorised to perform (Art. 35, Act on Foreign Lawyers). When providing cross-border services involving representation of a client in proceedings before courts or other public authorities, a lawyer from the European Union is subject to the same conditions for practice of the profession as applicable to an advocate or legal adviser (Art. 36(1)). More specifically, such lawyer is required to comply with the rules of professional ethics governing advocates or legal advisers, taking into account the rules of professional ethics in force in the lawyer’s home jurisdiction (Art. 36(2)). When providing cross-border services other than, as mentioned, representing a client in proceedings before courts or other public authorities, a lawyer from the European Union is required to comply with the conditions for practice of the profession in force in his or her home jurisdiction, taking into account the conditions for practice of the profession governing advocates or legal advisers insofar as compliance with the latter conditions may be required of a person who is not conducting a permanent practice and if justified for proper performance of professional actions and maintaining the dignity of the profession (Art. 37(1)). This rule applies respectively to compliance with rules of professional ethics (Art. 37(2)). For culpable violation of the duty to comply with the conditions for practice of the profession and the rules of professional ethics, a lawyer from the European Union is subject to disciplinary sanctions in accordance with the regulations concerning disciplinary sanctions for advocates or legal advisers, under rules analogous to those governing a lawyer from the European Union conducting a permanent practice (Art. 41). 11. In performing cross-border services, a lawyer from outside the European Union is authorised to represent a party to a civil proceeding who is a citizen or national of the country in which the lawyer is authorised to practise the profession. This authority is further conditioned on the existence of the analogous authority of a Polish lawyer in the country of origin of the foreign lawyer (reciprocity), unless otherwise provided by a treaty ratified by the Republic of Poland or the regulations of an international organisation of which Poland is a member (Art. 42 Act on Foreign Lawyers). A lawyer from outside the European Union is subject respectively to laws governing compliance with the rules for practice of the profession, co-operation with an advocate or legal adviser, presentation of a document certifying that the lawyer practises in the home jurisdiction, 419

Professional secrecy of lawyers in Europe

service of correspondence, and principles of disciplinary responsibility (Art. 42).

D

Exceptions and limitations 12. The most important limitations on the scope of protection of professional secrecy are provided for in regulations governing criminal procedure. (Restrictions on the scope of protection of professional secrecy under the Act on Money Laundering will be discussed later in this article.) In practice, the Criminal Procedure Code provides for two degrees of protection of professional secrecy: secrecy for defence counsel (which constitutes a kind of special instance of the secrecy for advocates) (no 13 below), and secrecy for advocates (or legal advisers) other than secrecy for defence counsel (no 14 below). This distinction is not directly supported by the Law on Advocates or the Act on Legal Advisers, but only by the Criminal Procedure Code. The current understanding of the distinction in the Polish literature and case law was established by a resolution of the Supreme Court dated 16 June 1994.21 While resolutions of the Supreme Court are not a source of law in Poland, nonetheless the authority and importance for legal practice of such resolutions cannot be overstated. In practice, the resolution resolved a dispute concerning the relationship between the Law on Advocates, which provides for the duty to maintain in secrecy everything an advocate learns in connection with providing legal advice or conducting a matter, and the Criminal Procedure Code, which (under certain conditions) authorises the court to take the testimony of an advocate with respect to facts covered by professional secrecy. In the opinion of the Supreme Court, the rule set forth in the Law on Advocates is in the nature of a general law (lex generalis), in relation to which regulations in the Criminal Procedure Code are in the nature of a specific law (lex specialis). 13. It is beyond doubt or dispute that secrecy for defence counsel is subject to absolute legal protection. Under Criminal Procedure Code Article 178(1), it is impermissible to take testimony as a witness of defence counsel or an advocate acting for a detainee with respect to facts of which he or she learnt while providing legal advice or conducting the matter. This means that an advocate (a legal adviser may not act as defence counsel in a criminal proceeding) may not be interrogated at all with respect to information obtained in connection with the defence. As stressed by the Supreme Court, The criminal procedure law in force does not provide for the ability to release an advocate from the duty to maintain defence secrecy . . . It is impermissible to interrogate an advocate at all as a witness with respect to 21 Resolution of the Polish Supreme Court dated 16 June 1994 (Case no I KZP 5/94).

420

Poland

facts which he or she learnt as defence counsel providing legal advice or conducting a matter.22

14. With respect to professional secrecy for an advocate (or legal adviser) other than defence counsel, maintaining secrecy is the lawyer’s duty but not the lawyer’s privilege. Therefore, ‘without obtaining a release therefrom, persons practising the professions provided for in Criminal Procedure Code Article 180, para. 2 cannot be called upon to testify, and such persons have no right to share their necessary knowledge with prosecutorial authorities without such release’.23 Moreover, it is clear that the absolute prohibition on interrogating defence counsel as a witness in a criminal proceeding does not depend on the will of the defence counsel.24 The scope of ‘ordinary’ professional secrecy for purposes of criminal procedure is set forth in the Criminal Procedure Code, Article 180, para. 2, pursuant to which persons required to maintain secrecy applicable to notaries, advocates, legal advisers, tax advisers, physicians or journalists may be interrogated with respect to facts covered by such secrecy only when necessary for the sake of justice and when the facts cannot be established on the basis of any other evidence. In a preparatory proceeding, the court rules on testifying or release from testifying, at a hearing without participation of the parties, within seven days at the latest from service of the prosecutor’s motion. Therefore, in the course of a criminal proceeding, the court may lift the secrecy of an advocate or legal adviser, but this is subject to two conditions which must both be met: (i) it is necessary for the sake of justice, and (ii) the fact to be proved may not be established on the basis of any other evidence. The first of these conditions in particular cannot be regarded as specific and strictly defined – especially since it may frequently be argued that the sake of justice always requires that a case be decided on a full evidentiary foundation. For this reason it should be stressed, as the Cracow Court of Appeal has held: This does not have to do with facts which the [prosecutor] conducting the investigation would like to learn for whatever reason, but facts necessary for justice. This also involves a demonstration that there is no other evidence for examination of such facts . . . If these conditions [i.e. for release from professional secrecy] were treated lightly, granting release from secrecy would be a formality, and the socially important role of advocates would be changed into the function of informers for the prosecutorial authorities, paid by their own clients. Release from secrecy is an exception from the rule that an advocate may refuse to testify. Resort to this

22 Resolution of the Polish Supreme Court dated 16 June 1994 (Case no I KZP 5/94). 23 Order of the Cracow Court of Appeal dated 30 March 2009 (Case no II AKz 110/09). 24 Order of the Cracow Court of Appeal dated 1 June 1995 (Case no II AKz 237/95).

421

Professional secrecy of lawyers in Europe

exception must be justified, and the exception may not be discretionarily expanded.25

It also follows from case law that it is necessary for the motion to the court to define precisely the scope of the circumstances to be covered by a release from professional secrecy: A decision on release from professional secrecy may not be treated as a formality. The client’s trust in the advocate, which is a condition for proper performance of the tasks of the Bar, is a great value whose infringement is the price for achieving justice, without which justice could not be achieved. Both of the conditions must be based on an evaluation of the factual circumstances of the case, and cannot result from a discretionary assessment escaping appellate review . . . The scope of the circumstances covered by the release must be precisely defined. A generalised definition of the scope of the release would mean that the release would not concern specific circumstances, but would provide carte blanche for discretionary use of the release from professional secrecy by the prosecutorial authorities.26

The court’s decision to lift professional secrecy is not discretionary.27 The decision must also lead to proof of a fact that is defined as precisely as possible.28 Pursuant to the Criminal Procedure Code (Art. 181, para. 1), if the court issues an order permitting interrogation with respect to facts covered by professional secrecy, such testimony is taken at a closed hearing. An interlocutory appeal is possible against the order of the court. The practical aspects of release from the obligation to maintain secrecy are significant for advocates. The legal press reported on the case of an advocate in Warsaw who was interrogated by the prosecutor’s office with respect to facts relating to the advocate’s appearance as counsel for the injured party in a criminal case. The advocate remained silent and refused to respond to any of the questions put to him. The prosecutor then decided to charge the advocate with obstruction of the investigation by concealing the truth (based on Penal Code, Article 233, para. 1, pursuant to which any person who, in providing testimony that is to serve as evidence in a judicial proceeding or other proceeding conducted pursuant to statute, testifies falsely or conceals the truth is subject to up to three years’ imprisonment). The advocate cited the holding of the Supreme Court in a ruling dated 22 January 2003 that ‘unjustified refusal to testify is not “concealing the truth” within the meaning of Penal 25 26 27 28

422

Order of the Cracow Court of Appeal dated 13 January 2009 (Case no II AKz 651/2008). Order of the Cracow Court of Appeal dated 19 March 2009 (Case no II AKz 64/2009). Order of the Cracow Court of Appeal dated 30 March 2009 (Case no II AKz 110/09). Order of the Wrocław Court of Appeal dated 18 September 2009 (Case no II AKz 472– 478/2009).

Poland

Code Article 233, para. 1’.29 In light of that holding, which has been upheld in practice, an advocate who remains silent may not be charged with a crime, but may only be subject to sanctions for disciplining witnesses provided in the Criminal Procedure Code, i.e. a fine (of up to PLN 10,000), or being brought to appear by force, and, in the event of persistent refusal to testify, detention of the witness for up to thirty days (Criminal Procedure Code, Arts. 285 and 287). As a result, the criminal investigation in the matter was discontinued. In practice it may be hoped that, when faced by determined objection by an advocate, the prosecutor’s office will be cautious in invoking the sanctions provided for in the Criminal Procedure Code, counting on a negative reaction from the media and the public. 15. Pursuant to the Criminal Procedure Code, Article 73, para. 1, an accused who is under temporary arrest may consult with defence counsel without the presence of other persons and by correspondence. However, during a preparatory proceeding, when giving permission for consultation, the prosecutor may, in a specifically justified instance, require that consultation be conducted in the presence of the prosecutor or other person appointed by the prosecutor. The prosecutor may also provide that correspondence between the suspect and defence counsel be monitored.30 However, such requirements may not be imposed or maintained after the suspect has been held under temporary arrest for longer than fourteen days. The right to contact an advocate also applies to a detainee. Pursuant to the Criminal Procedure Code (Art. 245, para. 1), upon request of a detainee, he or she should promptly be provided an opportunity to contact an advocate in any available manner, including direct consultation; the detaining officer may provide that his own presence is required. The opportunity to exercise the right to a defence thus does not attach only upon formal charging with commission of a crime, but with the initial action by the prosecutorial authorities directed toward prosecution of a specific person.31 In such instance the advocate is not yet defence counsel, but only a legal adviser to the detainee. If commission of a crime is charged during the period of detention, the attorney takes on the status of defence counsel. The right of the detaining officer to be present during direct consultation between the detainee and the advocate is not exceptional in nature, as is the case with consultations between an accused under temporary arrest with defence counsel during the preparatory proceeding.32 29 Resolution of seven-judge panel of the Polish Supreme Court dated 22 January 2003 (Case no I KZP 39/02). 30 Art. 73, §3 (regarding monitoring of correspondence) was ruled to be unconstitutional by the Constitutional Tribunal in a decision of 10 December 2012 (Case no K 25/11). 31 Judgment of the Polish Supreme Court dated 9 February 2004 (Case no V KK 194/03). 32 Art. 245, §1 (regarding presence of the detaining officer) was ruled to be unconstitutional by the Constitutional Tribunal in a decision of 11 December 2012 (Case no K 37/11).

423

Professional secrecy of lawyers in Europe

The presence of a third party during consultations with a defence counsel or an advocate, or monitoring of their correspondence, may significantly hinder realisation of the right to a defence. 16. Polish law does not require a client who obtains professional counsel to maintain secrecy. It may be argued that since the protection of secrecy is commonly treated as a form of privilege protecting the person availing himor herself of the lawyer’s services, there is no reason to deprive the interested party him- or herself of the ability to disclose information, in line with the principle that where there is consent there is no injury (volenti non fit iniuria). On the other hand, there is a risk that, because of the evidentiary limitations primarily concerning advocates (and to a lesser extent legal advisers), the prosecutorial authorities or the court may seek to circumvent such barriers by obtaining the desired information from the clients, attempting through use of methods of persuasion to make the client willing to voluntarily disclose information that is covered by secrecy. An example may be found in a situation that involved a well-known Warsaw advocate. Several persons sought his advice in connection with a pending proceeding in which they had not been accused. Then, one of the persons decided to co-operate with the prosecution. Thus, in a different proceeding, the prosecutor interrogated the person who had entered into co-operation with the prosecution concerning the circumstances of the advice the advocate had given him in the earlier proceeding. In this manner, the prosecutor’s office could circumvent the evidentiary barriers protecting defence secrecy. Notwithstanding the client’s ability to voluntarily disclose the content covered by the lawyer’s professional secrecy, it should be stressed that under current law the client has no ability to release the advocate or legal adviser from the obligation to maintain secrecy, even if an important interest of the client’s argues in favour of such release. Under Article 6(3) of the Law on Advocates, an advocate may not be released from the obligation to maintain professional secrecy with respect to facts learnt while providing legal assistance or conducting a matter.33 This provision applies as well to the lawyer’s client. The Bar has often argued that professional secrecy is absolute and even the client may not release the advocate from the obligation to maintain it. Ferdynand Payen is often cited as an authority for this position.34 If this position is accepted (and it appears to predominate among Polish advocates), even the client’s consent to the advocate’s disclosure of information covered by professional secrecy will not protect the advocate from facing disciplinary sanctions, or even (under specific conditions) criminal sanctions. 33 Similarly, under Article 3(5) of the Act on Legal Advisers, a legal adviser may not be released from the obligation to maintain professional secrecy with respect to facts learnt when providing legal assistance or conducting a matter. 34 See F. Payen, O powołaniu adwokatury i sztuce obro´nczej (The Advocate’s Calling and the Art of Defence), Warsaw and Cracow, 1938, at 161–2.

424

Poland

17. Nonetheless, there is a certain difference that is noticeable in the essence of the obligation to maintain professional secrecy as understood by the Bar and as understood by the Supreme Court. Although the Supreme Court has not taken a definitive position on this issue, in a judgment of 20 December 2007 the Supreme Court did state that an advocate’s use of information or documents obtained from the client, with the client’s approval, cannot be regarded as a violation of secrecy by the advocate: Use during the course of the trial, with the client’s approval, of information and documents obtained from the client cannot be regarded in terms of the advocate’s violation of the secrecy imposed on him. An allegation of violating professional secrecy may properly be raised, however, if the advocate uses information or documents obtained in exercise of his professional duties for a purpose unrelated to conducting the matter entrusted to him.35

If this view were accepted, then the client’s consent would mean that the advocate may disclose information covered by professional secrecy without subjecting himself to criminal or disciplinary sanctions. However, under the judgment referred to above, the client’s consent to disclosure of documents during the course of the proceeding cannot constitute a general lifting of the obligation to maintain secrecy. It thus appears that, under Polish law, there is currently no clear and unequivocal determination of whether the duty to respect the professional secrecy of advocates or legal advisers is absolute in nature (and does not depend on the will of the client), or contractual (and wholly dependent on the will of the client), or of a mixed nature somewhere in between.

E

Law firms 18. Polish law and the professional norms in force with respect to professional secrecy address the duty to respect secrecy only to natural persons – members of the Bar of advocates or legal advisers – and not to law firms, joint practices of advocates, or partnerships in which the partners are lawyers.

F

Legal assistants and staff 19. Both the Law on Advocates and the Code of Ethics for Advocates address the obligation to respect professional secrecy to members of the advocates’ bar, and thus advocates as well as advocate trainees. The situation with respect to members of the legal advisers’ bar is analogous. Nonetheless, although it is debatable, this does not mean that extension of professional secrecy of advocates (or legal advisers) to persons co-operating with the 35 Judgment of the Polish Supreme Court of 20 December 2007 (Case no SDI 28/07).

425

Professional secrecy of lawyers in Europe

advocate (or legal adviser) in providing legal assistance has been entirely foreclosed. First and foremost, under Section 19(4) of the Code of Ethics for Advocates, an advocate shall require his colleagues and staff and all persons hired by the advocate while practising the profession to comply with the obligation to maintain professional secrecy. A similar requirement is imposed on legal advisers. Under Article 13 of the Code of Ethics for Legal Advisers, a legal adviser who co-operates with other persons in practising the profession must demand of such persons that they maintain confidentiality under the rules applicable to the legal adviser him- or herself, and expressly require them to do so. Thus the obligation to ensure actual protection of professional secrecy is imposed on the advocate (or legal adviser). This obligation of the lawyer does not, however, result in a right of co-operating with persons to invoke protection of secrecy in a criminal or civil proceeding, particularly as this is set forth in internal regulations of the bar associations. Nonetheless, the Criminal Procedure Code (Art. 180, para. 2) (discussed in detail above in no 14 of this chapter), which provides for protection of the institution of professional secrecy of advocates and legal advisers for purposes of criminal procedure, refers not only to advocates and legal advisers, but, literally, to ‘persons required to maintain’ secrecy. Particularly in light of the need to interpret the law in terms of its purpose, as well as the conclusions flowing from the rules of professional ethics cited above, this wording apparently makes it possible to address the duty to respect secrecy not only to members of the Bar of advocates or legal advisers, but also to other persons, specifically persons co-operating with an advocate or legal adviser in providing legal assistance. Some support for this position is also found in the case law, for example the judgment of the Cracow Court of Appeal of 25 November 1993, stating that the provincial court correctly refused to admit evidence from the testimony of a person delegated by the prosecutor to be present at the meeting between the accused and defence counsel with respect to the substance of the discussion, because admitting such evidence would infringe the accused’s right to a defence and would circumvent the prohibition against interrogating defence counsel concerning facts he or she learnt while performing his or her function.36

And when ruling on the issue of secrecy required of persons performing actions identified in the Act on Protection of Mental Health dated 19 August 1994,37 the Supreme Court held in an order dated 20 April 200538 that the 36 Judgment of the Cracow Court of Appeal of 25 November 1993 (Case no II Akr 144/93). 37 Journal of Laws Dz. U. 1994, no 111, item 535, as amended. 38 Order of the Polish Supreme Court of 20 April 2005 (Case no I KZP 6/05).

426

Poland

provisions of this Act which are the source of the requirement to maintain secrecy apply inter alia to psychologists, despite the lack (at that time) of an Act governing the professional corps of psychologists which would establish professional secrecy, because the obligation to maintain professional secrecy applies to any person who performs the actions identified in the Act. It appears that this holding could be fully extended to situations involving the professional secrecy of advocates or legal advisers. For these reasons, it may be cautiously accepted that a ‘person required to maintain the secrecy of advocates (or legal advisers)’ as referred to in the Criminal Procedure Code (Art. 180, para. 2) may mean not only an advocate or advocate trainee, but also a person co-operating with an advocate or legal adviser in the provision of legal assistance.

G

External service providers 20. The law and the professional rules in force with respect to professional secrecy do not address the issue of the outsourcing of legal services. The only issue regulated in this respect is the permissibility of appointing another advocate or legal adviser as a substitute, unless the appointment made by the client expressly limits the ability to appoint substitutes. An advocate or legal adviser acting as a substitute is clearly subject to the same rules concerning respect for professional secrecy as the original attorney.

H

Multidisciplinary associations 21. Neither Polish law nor the codes of ethics of the two legal professions directly address the situation of co-operation between advocates or legal advisers and members of other professions in the context of the rules for respecting professional secrecy (see no 19 of this chapter).

2

History 22. The line of demarcation in the history of the contemporary Polish bar is issuance by Head of State Marshal J´ozef Piłsudski of the Decree on the Interim Statute of the Bar of the Polish State in 1918 (after Poland regained its independence following the First World War).39 Pursuant to Article 8 of the decree, an advocate had to maintain secrecy with respect to information obtained due to practice of the profession and could not be compelled to disclose it before a court or other authority. The substance of the rule set forth in the 1918 decree was essentially carried forward in the next two laws governing the Bar in Poland. Under Article 20 of the Law on the Advocates’ Profession, Regulation of the President of Poland dated 7 October 1932, an advocate was required 39 Journal of Laws Dz. U. 1918, no 22, item 75.

427

Professional secrecy of lawyers in Europe

to maintain in secrecy information provided to him due to his practice of the profession.40 And under Article 71 of the Law on the Advocates’ Profession dated 4 May 1938, an advocate was required to maintain in secrecy information provided to him due to his practice of the profession.41 After the Second World War, Poland became one of the satellite states of the Soviet Union, and thus the functioning of the rule of law was a fiction. While Article 53 of the Act on the Advocates’ Profession dated 27 June 1950,42 adopted during the Stalinist era, did guarantee that an advocate was required to maintain in secrecy everything learnt due to the practice of the profession, this law nonetheless served only as a fac¸ade. It was only following the thaw that took place in Poland after Stalin’s death and the relative liberalisation of the regime after autumn 1956 that the Communist authorities began to admit certain elements of the rule of law. Specifically, the Act on the Advocates’ Profession of 19 December 1963 was adopted in the wake of these changes.43 Under Article 7 of this act, an advocate was required to maintain in secrecy everything learnt in connection with providing legal advice or conducting a matter. 23. It was during the period when the 1963 Act was in force that a dispute arose in Polish jurisprudence between supporters of the absolute nature of the duty to maintain the professional secrecy of advocates, and supporters of the view that such protection was relative. The dispute had to do with the relationship between the rule in the Act on advocates’ providing for the obligation to maintain in secrecy everything which the advocate learnt in connection with providing legal advice or conducting a matter, and the provision in criminal procedure which (under certain conditions) enabled the court to take the testimony of an advocate with respect to facts covered by professional secrecy. This dispute was not definitively resolved until the Supreme Court adopted the resolution of 16 June 1994 (see no 12 of this chapter). The principled attitude of the advocates’ bar to the issue of protection of professional secrecy is noteworthy. In the period prior to the Second World War, in a resolution of 13 October 1934, the Executive Committee of the Polish Bar Council – the highest body of the advocates’ bar association – stressed how essential it was to protect all information obtained by an advocate in connection with the practice of the profession. A similar position was presented also after the war.44 There was a departure from this position, however, in the resolution of the Presiding Committee of the Polish Bar Council of 10 November 1966, 40 41 42 43 44

428

Journal of Laws Dz. U. 1932, no 86, item 733. Journal of Laws Dz. U. 1938, no 33, item 289. Unified text: Journal of Laws Dz. U. 1959, no 8, item 41. Journal of Laws Dz. U. 1963, no 57, item 309, as amended. See resolution of the Executive Committee of the Polish Bar Council of 21 November 1958 and position of the Executive Committee of the Polish Bar Council of 22 January 1960.

Poland

admitting the possibility of interrogating an advocate if the court or the prosecutor released him or her from the duty to maintain professional secrecy. This position was extracted through strong political pressures during the Communist era. In later resolutions the advocates’ bar returned to its original position on the inviolability of professional secrecy.45 It should be stressed, however, that such resolutions must not be treated as a source of law, but only as the position of the Bar on the dispute over the nature and scope of the professional secrecy of advocates.

3

Supervision

A

The bar associations 24. Under Article 80 of the Law on Advocates, advocates and advocate trainees are subject to disciplinary responsibility for acting contrary to law, rules of ethics, or the dignity of the profession, and for violating their professional duties. An advocate’s violation of rules for the protection of professional secrecy undoubtedly constitutes an act contrary to law (specifically Article 6 of the Law on Advocates) as well as rules of ethics (specifically Section 19 of the Code of Ethics for Advocates). The dean of the regional bar council may also impose a sanction of admonition on a member of the regional chamber. An appeal from the sanction of admonition imposed by the dean will lie to the disciplinary court, which rules on such matters as a second and final instance. Under Article 64(1) of the Act on Legal Advisers, legal advisers and legal adviser trainees are subject to disciplinary responsibility for culpable, improper practice of the profession and for acts contrary to the legal advisers’ oath or the rules of ethics. If the culpability is minor, the dean of the regional chamber of legal advisers may admonish the legal adviser or legal adviser trainee, and there is a right of appeal from the admonition to the disciplinary court.

B

The courts 25. Disciplinary cases involving advocates are decided by the disciplinary court of the regional chamber and by the High Disciplinary Court. The disciplinary court of the regional chamber usually hears all cases as a court of first instance. The High Disciplinary Court hears cases as a court of second instance that were heard at the first instance by the disciplinary court of the regional chamber, but 45 See resolutions of the Presiding Committee of the Polish Bar Council of 7 November 1968 and 27 October 1993, and resolutions of the Polish Bar Council of 12 December 1993 and 18 June 1994.

429

Professional secrecy of lawyers in Europe

it hears disciplinary cases involving members of the Polish Bar Council or the regional bar councils as a court of first instance. Disciplinary cases involving legal advisers are heard by the disciplinary courts of the regional chambers of legal advisers and by the High Disciplinary Court.

4

Sanctions

A

Proceedings and sanctions 26. The Law on Advocates provides for the following disciplinary sanctions: (i) admonition, (ii) reprimand, (iii) a fine (from five to fifty times the basic bar association membership dues), (iv) suspension from professional duties for a period from three months to five years, and (v) disbarment. Alongside a reprimand or fine the advocate may also be prohibited from serving as a patron for advocate trainees for between one and three years. Alongside the sanction of suspension, a prohibition on the advocate’s serving as a patron is also declared, for between two and ten years. A reprimand or fine entails loss of eligibility for election to an office in the bar association for three years after the ruling becomes legally final. Suspension entails loss of eligibility for election to office in the Bar, as well as the right to vote, for six years after the ruling becomes final. Disbarment entails removal from the roll of advocates. Fines are not imposed in the case of advocate trainees. Disbarment with respect to trainees entails removal from the roll of trainees with no right to seek readmission to the roll of advocate trainees or to the roll of advocates for ten years after the disbarment ruling becomes final. The disciplinary court may also order that the ruling be announced to the members of the Bar in a journal published by the Bar. 27. The Act on Legal Advisers provides for the following disciplinary sanctions: (i) admonition, (ii) reprimand with a warning, (iii) suspension from the right to practise the profession for a period from three months to five years, (iv) a fine no less than half the average monthly wage in the national economy in the month preceding the disciplinary ruling and no greater than five times the average monthly wage, and (v) deprivation of the right to practise the profession or, in the case of legal adviser trainees, removal from the trainee programme. Alongside a reprimand with warning or fine the legal adviser may also be prohibited from serving as a patron for trainees for between one and five years. Alongside the sanction of suspension, a prohibition on the legal adviser’s serving as a patron is also declared, for between two and ten years. Deprivation of the right to practise entails removal from the roll of legal advisers. Removal from the trainee programme entails removal from the roll of trainees with no right to seek readmission to the roll of trainees or the roll of legal advisers for

430

Poland

ten years after the ruling becomes final. The sanction of suspension of the right to practise the profession does not apply to legal adviser trainees. 28. As the Supreme Court has stated, disciplinary sanctions are an instrument for protecting the public trust in the advocates’ profession and for the persons who practise it.46 Such trust may be assured only by proper performance by advocates of their professional duties, in a manner that is consistent with the law and with the rules of ethics in force in the profession. Under the Law on Advocates, a disciplinary proceeding involves an investigation, a proceeding before the disciplinary court, and an enforcement proceeding. The parties to the disciplinary proceeding are the accuser, the defendant and the injured party. The accuser in the proceeding is the disciplinary counsel, and the defendant is the advocate or advocate trainee against whom the proceeding is brought. The injured party is the person whose legal interests were directly violated by the behaviour of the advocate or trainee. The defendant may be represented by defence counsel and the injured party may be represented by an attorney. The body with jurisdiction to hear the case is the disciplinary court of the chamber of advocates of which the defendant is a member at the time of commencement of the proceeding. The disciplinary court commences the proceeding upon motion of an authorised accuser, decides any legal issues that arise, and rules pursuant to its conviction based on a free assessment of the totality of the evidence, taking into account circumstances that speak both for and against the defendant. The disciplinary court rules at a hearing or in session. Its decisions are issued in the form of rulings or orders. A ruling may essentially be issued only at a hearing. Hearings before the disciplinary court are generally open. A cassation appeal to the Supreme Court may be sought against a ruling issued by the High Disciplinary Court at the second instance, by the parties, the minister of justice, the ombudsman or the president of the Polish Bar Council. A cassation appeal may be filed on grounds of gross violation of law as well as gross disproportion of the disciplinary sanction. Matters concerning disciplinary procedure that are not governed by the Law on Advocates are governed by the Criminal Procedure Code as relevant. Pursuant to the Act on Legal Advisers, a disciplinary proceeding against a legal adviser is conducted in a manner similar to a proceeding under the Law on Advocates.

B

Relationship between criminal sanctions and disciplinary sanctions 29. Under Article 86 of the Law on Advocates, a disciplinary proceeding is conducted notwithstanding a criminal proceeding concerning the same act, but it may be suspended until completion of the criminal proceeding. There is an 46 Judgment of the Polish Supreme Court of 1 April 2004 (Case no SDI 14/2004).

431

Professional secrecy of lawyers in Europe

analogous rule in the Act on Legal Advisers (Art. 67(1)). Thus the rule is that the disciplinary proceeding is independent of the criminal proceeding,47 and criminal liability is wholly autonomous from disciplinary liability. In practice, however, if an advocate or legal adviser were convicted for violation of professional secrecy under either of the two articles of the Penal Code discussed in the next paragraph, the lawyer would certainly also face disciplinary sanctions. Violation of the duty to maintain professional secrecy on the part of an advocate or legal adviser may entail sanctions under the criminal law. Specifically, under the Penal Code (Art. 266, para. 1), a person who, in violation of a statute or an obligation he or she has undertaken, discloses or uses information which he or she learnt in connection with an office held; work performed; or public, social, economic or scientific activity, is subject to a fine, probation or imprisonment for up to two years. This offence is prosecuted upon the motion of the injured party. In theory, violation of professional secrecy by an advocate or legal adviser might also qualify as an offence under the Penal Code (Art. 241, para. 1), under which a person who, without permission, publicly disseminates information from a preparatory proceeding before it is disclosed in the judicial proceeding is subject to a fine, probation or imprisonment for up to two years. This offence is prosecuted ex officio.

5

Duty to provide information to the authorities

A

Money laundering and terrorism 30. In accordance with Article 6(4) of the Law on Advocates and Article 3(6) of the Act on Legal Advisers, the duty to maintain professional secrecy does not apply to information provided pursuant to the Act on Money Laundering. Article 2(1)(n) of the Act on Money Laundering includes among the persons subject to reporting requirements advocates practising the profession, legal advisers practising the profession other than as an employee of a central or local governmental agency, and foreign lawyers providing legal assistance outside an employment relationship. Under Article 8(3)(b) in connection with Article 8(3) of the Act on Money Laundering, persons subject to the reporting requirements who are advocates, legal advisers or foreign lawyers and who are conducting a transaction the circumstances of which indicate that it may be connected with money laundering or financing of terrorism are required to register the transaction, regardless of its nature or value. This obligation is connected with providing assistance to a client in planning or conducting transactions involving (i) purchase or sale of real estate or an enterprise; (ii) management of money, securities or other property; (iii) opening or operating accounts; (iv) organising contributions or 47 Judgment of the Polish Supreme Court dated 1 April 2004 (Case no SDI 9/2004).

432

Poland

surcharges to share capital, or organising contributions to create, operate or manage the activity of companies; or (v) creation, operation or management of enterprises in some other organisational form. 31. The regulations limiting professional secrecy in connection with combating money laundering were the subject of analysis by the Polish Constitutional Tribunal in terms of their consistency with the Constitution. In the ruling, the Tribunal held that the limitations on the secrecy of communications arising under the Act on Money Laundering are supported by constitutional values justifying interference in the sphere of the constitutional rights and freedoms of individuals. Such limitations are therefore, in the opinion of the Tribunal, necessary and proportionate, but with one very categorical reservation . . . Regulations that deprive an individual involved in the process of dispensation of justice of access to legal assistance would be inconsistent with the principles of a fair trial which are a component of the constitutional right of access to the courts. If the obligations provided by the Act on Money Laundering to gather and transmit information about clients were to refer to the sphere of professional activity that involves preparing, conducting or shaping a judicial proceeding, or determining the results following therefrom, it could hardly be called legal assistance because the actions of persons practising legal professions of public trust could ultimately harm, not help, the client’s situation.48

In accordance with Article 11(5) of the Act on Money Laundering, the obligation to report on transactions covered by the Act does not apply to an instance where an advocate, legal adviser, foreign lawyer, auditor or tax adviser represents a client on the basis of an appointment as attorney ad litem in connection with a pending proceeding or advises on such proceeding. As stated in the judgment cited above, the Constitutional Tribunal regards as impermissible an interpretation of the provisions of the Act on Money Laundering that the obligation to gather and transmit information would refer to lawyers practising professions of public trust to the extent that they are providing legal assistance consisting of determining the legal situation of the client or otherwise connected with a judicial proceeding that is in preparation, has been commenced (or is being conducted) or has been completed.49

B

Collective settlement of debts 32. Polish law does not provide for any limitations on the professional secrecy of advocates or legal advisers in connection with collective settlement of debts. 48 Judgment of the Polish Constitutional Tribunal of 2 July 2007 (Case no K 41/05). 49 Judgment of the Polish Constitutional Tribunal of 2 July 2007 (Case no K 41/05).

433

Professional secrecy of lawyers in Europe

6

Treatment of a lawyer’s documents and correspondence in the context of judicial investigations 33. The degree of protection of documents depends on whether they may be regarded as containing content that constitutes secrecy of defence counsel or other professional secrecy. The general standard in this respect is set forth in the Criminal Procedure Code (Art. 225, paras. 1 and 2). As stated there, if the director of a state or local governmental institution, or a person whose items have been seized or whose premises have been searched, declares that a document that has been turned over or found in the search contains information that is classified or subject to professional secrecy or other legally protected confidentiality, or is personal in nature, then the body conducting the action shall promptly submit the document in a sealed package, without reading it, to the prosecutor or the court. However, this procedure does not apply to correspondence or other documents containing classified information subject to a ‘restricted’ or ‘confidential’ clause, or concerning professional secrecy or other legally protected confidentiality, if the holder of the document is a person suspected of commission of a crime, or to documents of a personal nature of which the person is the holder, author or addressee. It is accepted that ‘documents are regarded as containing information covered by the secrecy of a legal adviser only if they are correspondence, notes or other documents containing content which the legal adviser learnt in connection with providing legal assistance and they concern the subject of legal assistance provided’.50 A broader scope of protection is afforded to documents containing information that constitutes secrecy of defence counsel. Under the Criminal Procedure Code (Art. 225, para. 3), if defence counsel or another person requested to turn over items or at whose premises a search is conducted declares that documents turned over or found during the search cover circumstances connected with performance of the function of defence counsel, the body conducting the activity shall leave such documents with the person in question without examining them or reviewing their content. If, however, such declaration by a person who is not defence counsel raises doubts, the body conducting the activity shall forward the documents promptly to the court, without reading them, in a sealed package. After reviewing them, the court shall return the documents in whole or in part to the person from whom they were taken, or issue an order to seize the documents for purposes of the proceeding. As stressed in the case law, conditioning seizure of documents on a decision by the court is intended to serve as a check on the actions of prosecutorial authorities. In an order of 15 May 2008 (Case no II AKz 294/08), the Warsaw Court of Appeal held:

50 Order of the Warsaw Court of Appeal dated 15 May 2008 (Case no II AKz 294/08).

434

Poland

Abuses by a prosecutorial authority of the institution of the search to circumvent the relative evidentiary prohibition against interrogating a legal adviser as a witness cannot be permitted. Obtaining documents in this manner, as well as notes made by the legal adviser, whose content would for obvious reasons be the same as his potential testimony at trial if the grounds existed, would constitute a clear violation of procedural norms concerning the possible manners of obtaining evidence.

In accordance with Article 226 of the Criminal Procedure Code, with respect to issues concerning use of documents containing information that is classified or covered by professional secrecy as evidence in a criminal proceeding, the prohibitions and limitations concerning interrogation of an attorney or defence counsel as a witness (Arts. 178–81, Criminal Procedure Code) apply.

7

Search of a lawyer’s office 34. A search may be conducted in order to find, detain or haul in a suspect, or to find items that may constitute evidence in the case or which are subject to seizure in a criminal proceeding. The search may be conducted by the prosecutor or the police. In either instance, an appropriate order of the court or prosecutor is required, designating the person whose premises are to be searched. In the event of a search, internal bar association regulations require the lawyer to demand the presence of a representative of the bar association during the search. Under Section 20 of the Code of Ethics for Advocates, if a search is conducted at premises where the advocate practises the profession or at his private dwelling, the advocate is required to demand the presence of a representative of the advocates’ bar association. Similarly, Article 18 of the Code of Ethics for Legal Advisers provides that a legal adviser is required to demand the presence of a representative of the legal advisers’ bar association at a search which could result in disclosure of information covered by the legal adviser’s professional secrecy.

8

Tapping of telephone conversations with a lawyer 35. Under the Criminal Procedure Code, monitoring and recording of telephone conversations may be ordered by the court upon motion of the prosecutor in order to discover and obtain evidence for a pending preparatory proceeding or to prevent commission of a new offence. However, in exceptional circumstances not allowing for delay, monitoring and recording of telephone conversations may be ordered by the prosecutor, who is then required to apply to the court within three days for ratification of the order. Monitoring and recording of telephone conversations is permissible only when the pending proceeding or justified fear of commission of a new offence involves a serious crime – for example, murder or kidnapping, or the production, processing, 435

Professional secrecy of lawyers in Europe

trading or smuggling of narcotics, although the list of crimes, in the Criminal Procedure Code (Art. 237, para. 3), is fairly extensive. Monitoring and recording of telephone conversations is permissible with respect to a suspect, an accused, an injured party, or another person who may be in contact with the accused or who may have a connection to the perpetrator or the threatened new offence. Unfortunately, the Polish criminal procedure regulations do not provide for additional restrictions on the ability to monitor and record telephone conversations that are conducted with an advocate or legal adviser and intrude into the scope of professional secrecy. In this respect, reference must be made to the general provisions on protection of the professional secrecy of advocates (or legal advisers).

9

The lawyer as witness 36. In a civil proceeding, under the Civil Procedure Code (Art. 261, para. 2), a witness may refuse to answer a question put to him if the testimony would entail violation of important professional secrecy. It is clear that this reference includes the secrecy of advocates and legal advisers. It is true that this provision refers to the ability to refuse to answer a question if there is a risk of violation of important professional secrecy, and not just any professional secrecy. This distinction plays no major role in practice. However, because the advocate or legal adviser him- or herself makes the assessment of whether the given fact violates important secrecy or not, this formulation may in fact be beneficial to the lawyer, permitting a response in a situation where unimportant information may be helpful to the client. It should be recognised, however, that in the response the lawyer may not indicate circumstances detrimental to the client, as this would conflict with the essence of professional secrecy. In civil procedure, there are no regulations enabling the court to set aside professional secrecy. 37. In an administrative proceeding, the witness may refuse to answer a question if the answer could cause violation of a duty to maintain legally protected professional secrecy (Art. 83, para. 2, Administrative Procedure Code), and thus this includes the secrecy of an advocate or legal adviser. 38. In a proceeding before the administrative courts, it is not permissible at all to introduce evidence in the form of witness testimony.51 As a rule, it is also impermissible to take evidence in any other form, because the administrative court exercises review of legality based on the evidence gathered in the proceeding before the administrative authority that issued the decision being challenged 51 Judgment of the Supreme Administrative Court in Warsaw of 25 February 2000 (Case no I SA 428/99).

436

Poland

(Art. 133, para. 1, of the Law on Procedure before the Administrative Courts). The court may, however, on its own motion or upon motion of the parties, admit supplementary evidence from documents if it is necessary to resolve material doubts and will not excessively prolong the proceeding (Art. 106, para. 3). In such cases, under Article 106, paragraph 5, civil procedure regulations will apply before the administrative courts, as relevant, and thus also the restrictions on taking evidence from documents subject to the professional secrecy of advocates or legal advisers. 39. In proceedings involving petty offences, the court may not release the obligation to maintain secrecy connected with practice of the profession of advocate or legal adviser (Art. 41, para. 4, of the Petty Offences Procedure Code). 40. The position of an advocate as a witness in a criminal proceeding has been discussed previously (no 14 of this chapter). 41. Additional barriers to interrogating an advocate or legal adviser as a witness are set forth in internal bar regulations. Under Section 19(8) of the Code of Ethics for Advocates, an advocate shall not call an advocate or legal adviser as a witness in order to seek disclosure of information obtained in connection with practice of the profession. An analogous rule is found in Article 17 of the Code of Ethics for Legal Advisers.52 The duty to remain silent falls away if, in connection with a given conversation with the client, the advocate becomes the defendant in a disciplinary proceeding or the accused in a criminal proceeding. As the Supreme Court held in a ruling of 29 November 1963, This obligation may cease only in instances in which the advocate’s client him- or herself has disclosed the content of the discussions or fragments thereof, thus letting it be known that he or she does not care about maintaining the secrecy of the discussions in the portion disclosed, and also if – specifically upon the initiative of such client – there is a disciplinary or criminal proceeding pending against the advocate him- or herself in connection with the content of such discussions. In the latter instance, the right to a defence comes into play, which cannot be limited by the advocate’s being bound by the duty to maintain professional secrecy. If this duty were to be maintained, the advocate would find him- or herself in a position worse than any other person who is an accused.53

52 A legal adviser may not move the admission of evidence in the form of testimony of another legal adviser or an advocate as a witness with respect to circumstances known to them in connection with practice of the profession. 53 Resolution of the Polish Supreme Court of 29 November 1963 (Case no VI KO 61/62).

437

Professional secrecy of lawyers in Europe

10

The lawyer and the press 42. It is accepted that an advocate or legal adviser may, with consent of the client, provide relevant information to the media in order to protect the interests of the client. It is necessary, however, to maintain the appropriate moderation and proportion between substantive work and media appearances. An advocate should avoid situations in which he or she becomes a de facto spokesman or lobbyist. Moreover, statements by an advocate must not violate professional secrecy.

11

Powers of the tax administration and other authorities 43. The duty to maintain professional secrecy may not constitute grounds to refuse to disclose information to the tax authorities necessary to establish or verify tax obligations. As the Supreme Administrative Court in Katowice held in its judgment of 21 September 1998: The professional secrecy of advocates does not extend to information that must be included in financial documents (invoices, bills and so on), and thus a taxpayer who practises the profession of advocate has no grounds to refuse to present such documents to the duly appointed authorities, including the tax authorities.

Article 6 of the Law on Advocates, referring to the duty to maintain professional secrecy, ‘provides no grounds for holding that the personal details of clients or general information about the nature of the legal assistance provided them is covered by secrecy either – at least insofar as necessary to properly determine the VAT rate’.54 Thus refusal to disclose source documents in this respect for purposes of a tax audit may not be justified by protection of professional secrecy.

12

State security service 44. Numerous acts governing the operations of the police and several special services (e.g. the Central Anticorruption Bureau, the Internal Security Agency, the Military Counterintelligence Service and the Military Intelligence Service) include authorisation to apply to the court, upon consent of the Prosecutor General, for an order to conduct operational monitoring. However, in exceptional circumstances not allowing for delay, which could result in loss of information 54 Judgment of the Supreme Administrative Court in Katowice of 21 September 1998 (Case no I SA/Ka 2214/96).

438

Poland

or concealment or destruction of evidence of a crime, operational monitoring may also be ordered solely upon written consent of the relevant prosecutor, and then followed by an application to the relevant court for issuance of an order on the matter. In the Acts governing the operations of the police and the other services mentioned, there are also no restrictions on the ability to conduct operational monitoring with respect to communications with an advocate or legal adviser covered by professional secrecy. It should be acknowledged that the protection afforded to the professional secrecy of advocates and legal advisers constitutes a specific law with respect to these regulations. However, so far this issue has not been unequivocally resolved in the case law.

13

Future, and conclusion 45. Discussion has been under way in Poland in recent years concerning the possible future merger of the professions of advocate and legal adviser. The result may ultimately have a certain impact on regulations governing professional secrecy, but it is difficult to predict at this time what shape such changes might take. Meanwhile, a discussion is also under way concerning possible amendment of the bar association rules governing the scope of the duty to maintain professional secrecy by advocates and legal advisers. Regardless of whether the new proposals for the codes of ethics are enacted, it appears that some legislative changes are necessary to provide more effective protection of professional secrecy. Two issues should be regarded as the most critical. First, it appears necessary to expressly extend the existing protection to cover persons working with advocates or legal advisers, and to eliminate or at least limit the ability to interrogate an advocate in a criminal proceeding with respect to circumstances covered by professional secrecy other than the secrecy of defence counsel. Without doubt, the professional secrecy of an advocate or legal adviser should be valued more highly than the efficiency of a criminal proceeding, which is seen by the prosecutorial authorities as grounds to set aside the protection of secrecy under the Criminal Procedure Code. Moreover, even if it were acknowledged that the benefits associated with establishing the substantive facts in a criminal proceeding, which the institution of releasing an advocate or legal adviser from the duty to maintain professional secrecy surely serves, are more important than the value associated with respect for professional secrecy, the current wording of the Criminal Procedure Code enabling release from secrecy is definitely too vague. It appears necessary at least to clarify the grounds for releasing an advocate or legal adviser from the duty to maintain professional secrecy. Second, the issue of the client’s ability to release the lawyer from 439

Professional secrecy of lawyers in Europe

the duty to maintain professional secrecy also appears to be important. This requires a final determination under Polish law of whether the duty to respect legal professional secrecy is absolute (notwithstanding the will of the client), contractual (dependent on the will of the client), or mixed.

440

26 Portugal ana cristina delgado Legal Adviser of the Legal Department Conselho Geral da Ordem dos Advogados Portugueses

Preliminary note 442 1 Scope of and limitations on professional secrecy 443 A Statutory basis and implications 443 B Scope 444 C Persons subject to the duty of professional secrecy 446 D Limitations and derogations 446 E Law firms 449 F Legal assistants and staff 449 G External service providers 449 H Multidisciplinary associations 449 2 History 450 3 Supervision 451 A The Bar Association 451 4 Sanctions 451 A Proceedings and sanctions 451 a Disciplinary proceedings and sanctions 451 b Criminal proceedings and sanctions 452 c Civil proceedings and damages 452 B Relationship between criminal sanctions and disciplinary sanctions 452 5 Duty to provide information to the authorities 453 A Money laundering and terrorism 453 6 Treatment of a lawyer’s documents and correspondence in the context of judicial investigations 454 7 Search of a lawyer’s office 454 8 Tapping of telephone conversations with a lawyer 458 9 The lawyer as witness 459 10 The lawyer and the press 459 11 Powers of the tax administration and other authorities 459 12 State security service 459

441

Professional secrecy of lawyers in Europe

Preliminary note 1. The Portuguese Bar Association’s Statute (Professional Statute), laid down in Decree-Law no 84/84 of 16 March 1984, amended by Law 6/86 of 23 March 1986, then Decree-Law no 119/86 of 28 May 1986, Decree-Law no 325/88 of 23 September 1988, Law 33/94 of 6 September 1994, Law 30E/2000 of 20 December 2000 and Law 80/2001 of 20 July 2001, currently lies in Law 15/2005 of 26 January 2005. Keeping professional secrecy is a professional duty described by Article 87 of Law 15/2005, a duty before the client but also between lawyers. This specific duty between professionals regards all facts given by the opposite party or its representative during preliminary negotiations (oral or written) – even if a party is not assisted by another lawyer, it involves confidence through the legal professional’s intervention. 2. Modern society accepts that trust be placed in legal professionals, within their ethics and ethical procedures and mostly due to professional secrecy. There is an old saying in Portugal that ‘every truth must be unveiled, both to a lawyer and to a priest’. Professional secrecy is set upon a public-order interest, not an agreement. All the Bar’s jurisprudence reflects this, through many decisions rendered by the General Council and the Superior Council, throughout history. In Portugal, every lawyer is compulsorily registered at the Bar Association and is under a duty of professional secrecy. Only legal professionals admitted to the Bar are entitled to use the title of lawyer and to act in court. 3. Lawyers (advogados) should be distinguished from solicitors (solicitadores), who have brief legal education and whose practice regards specific legal acts, injunctions and courts of first instance. These professionals are compulsorily enrolled at the Cˆamara dos Solicitadores (a different regulation authority) under Law 49/2004 of 24 August 2004. Both professionals provide legal services and information, receiving adequate fees for delivered service, and both have to practise under client privilege. Solicitors obtain their licence after three years – lawyers need to graduate in law, which takes three to five years. Solicitors go through one year’s training and may act in courts of first instance or before state departments, when it is not compulsory to be represented by an attorney. Lawyers have thirty months of internship, and broader powers to intervene in any type of court or state department. 4. Lawyers (and trainee lawyers in the second year of traineeship) are allowed to perform some public deeds, such as authenticity terms, signature witnessing and translation certification, previously exclusive to notaries. Trainee lawyers can act in any subject, as long as they get senior supervision from a mentor, to stand on their own in criminal cases submitted to a single court, non-criminal 442

Portugal

cases up to €5,000 in value, cases involving the under-aged and divorces by mutual agreement (Art. 189 Statute). Solicitors are represented by their chamber, as lawyers are represented by the Portuguese Bar Association. Solicitors have their own Professional Statute – Decree-Law no 88/2003 of 26 April 2003 (see www.solicitador.net/ estatutos.asp?estID=1).1 Portuguese lawyers are independent professionals and may practise as inhouse lawyers, as partners or associates in law firms or even as employees for law firms. 5. The Portuguese Bar Association oversees the profession, divided between ´ seven district councils: Lisbon, Oporto, Coimbra, Evora, Faro, Madeira and Azores, with their own legal jurisdiction but pursuing national policies and executive decisions from General Council, chaired by the baston´ario (president).

1

Scope of and limitations on professional secrecy

A

Statutory basis and implications 6. There are several legal instruments in Portugal sustaining the basis of the attorney–client privilege. The Constitution of the Portuguese Republic (Art. 208) gives lawyers the necessary immunity powers to act within the strict limits of practice (also Law 25/2008 of 28 August 2008, usually called LOFTJ). Portugal provides public protection through security procedures for searches of legal offices (Art. 70 Professional Statute), prohibition of the apprehension of legal correspondence or professional items (Arts. 71, 72 and 87, para. 3), prohibition of the apprehension of correspondence or surveillance between counsellor and defendant (Art. 172, para. 2, Criminal Procedure Code), the right to meet personally and privately with a client, even if one remains under civil or military custody (Art. 73 Professional Statute), and by authorising lawyers to communicate with their clients even though they have been put in isolation (Arts. 67(e) and 143, para. 4, Criminal Procedure Code). Professional secrecy protection is also one of the immunities laid down in Article 208 of the Portuguese Republic Constitution: ‘the law ensures lawyers all necessary immunities to perform the mandate and regulates legal representation, as an essential element of the administration of justice’. 7. Furthermore, violation of lawyers’ professional secrecy is considered a crime (Art. 195 Criminal Code). Perpetrators can face prison or a fine representing 1 To access the Solicitors Chamber website go to www.solicitador.net/home.asp.

443

Professional secrecy of lawyers in Europe

up to 240 days; the defendant decides whether to pay the fine or to serve up to one year in prison. Someone who takes advantage of such violation by causing damage to others or to the state can also be criminally sanctioned (Art. 196). On a disciplinary level, professional misconduct with serious guilt involving non-compliance with this duty is heavily punished. If damage occurs, it also implies professional liability before the client or civil liability for tort if a third party was involved. Public protection of professional secrecy is also reflected in admission of evidence in civil procedure: persons under the duty of professional secrecy may refuse to testify (Art. 618, para. 3, Civil Procedure Code). In criminal proceedings, lawyers can refuse to testify also (Art. 135, para. 1, Criminal Procedure Code). Finally, for any procedure, the Professional Statute states that any information obtained in violation of professional secrecy cannot be used as evidence in a court of law and is void (Arts. 201 and 205 Civil Procedure Code). Apprehension of legal correspondence or surveillance of conversations between counsellor and criminal defendant (Art. 172, para. 2, Criminal Procedure Code (CPC)) are regarded as an invasion of confidential correspondence (Art. 32, para. 8, Constitution of the Portuguese Republic; Art. 126, paras. 1 and 3, CPC) and are never admitted unless the court finds them as evidence of part of a criminal action. The prohibited use of evidence in violation of the above rules entitles a lawyer to demand its removal from the case file.

B

Scope 8. Secrecy has no time limit, prevailing regardless of the case’s closure. It continues to apply after termination of the case and even if the lawyer has been disbarred. Secrecy does not apply in the event of disciplinary, criminal or civil liability of the lawyer; so, for instance, if one demands compensation for damages caused because of violation of professional secrecy, there is a limited time to file the claim with the court. Sanctions for non-compliance include suspension of membership. 9. Lawyers must keep confidential all information known within their practice brought to them by clients or of which they have been informed while practising (Art. 87 Professional Statute). For this matter, the term ‘client’ not only refers to the person who seeks legal advice, but also to the person who had the lawyer as legal representative with respect to an agreement or who is represented in a court of law, whether the legal service demands court representation or not, whether the lawyer is paid a fee or acts pro bono, whether the lawyer has accepted the representation or not. Every lawyer who directly or indirectly comes across the case is also under the duty.

444

Portugal

In many cases, a lawyer has no formal power-of-attorney document, so the duty arises from a lawyer acting as simple counsellor or as someone providing support in a legal situation. Professional secrecy refers to all facts delivered by the client (expressly stated as confidential or not), as well to those presented on his or her behalf through a spokesman, written or verbally. If a lawyer has a legal situation to handle and meanwhile acquires a fact useful to the case but unrelated to his or her power of attorney, this fact is also under professional secrecy because it came to him or her while s/he was practising. Lawyers have loyalty and information duties towards the client but, even to his/her own client, the duty of independence demands that certain details referring to the other party not directly relevant to the case, for instance, cannot be unveiled. 10. Professional secrecy is extended to partners, co-plaintiffs, co-defendants or co-interested parties besides the client, and his/her representative (Art. 87 Professional Statute). 11. Professional secrecy applies also to facts revealed by the opposite party during negotiations accompanied by a lawyer (Art. 87(e) and (f)(1) Professional Statute). The duty of secrecy also applies between lawyers, between the opposite party and the client (as well as their own representatives) regarding the facts that allowed them to initiate negotiations to try and solve the initial antagonism. Secrecy covers all types of negotiation within this context, including a court negotiation agreement as well as any other agreement first started in writing or orally, regardless of whether these negotiations result in an agreement. The facts revealed during these negotiations are covered by professional secrecy if at least one lawyer is involved: so when parties start to negotiate by themselves, no professional secrecy applies. Successful negotiations should not raise any questions unless someone tries to claim misinterpretation or use of force to reach an agreement. Unsuccessful negotiations include situations where parties give away some information in order to reach agreement, considering that ‘sometimes it is better to close a bad agreement than to pursue a good court case’ – and this may cast a shadow upon evidence. Likewise, in-house lawyers are also bound to professional secrecy during negotiations. Despite their employment contract with a company, they have to maintain independence and technical autonomy. 12. Lawyers must regard as covered by professional secrecy confidential facts communicated by colleagues, including when they represent the Bar Association as elected members (Art. 87(b) Professional Statute). For example, the bar district council’s president, when requested by a lawyer to qualify information as not secret, cannot share the secret information with 445

Professional secrecy of lawyers in Europe

colleagues (Arts. 87(4)(m)(1) and 51 Professional Statute). If the authorisation to withdraw professional secrecy is denied, lawyers can then appeal to the bar’s president (baston´ario). Both the district council’s president and the Bar Association’s president are bound by professional secrecy with respect to facts revealed by lawyers. Even if the president authorises a lawyer to reveal certain facts, the lawyer can always, in the end, refuse to disclose facts covered by secrecy.

C

Persons subject to the duty of professional secrecy 13. A lawyer is under the obligation to ensure that his or her staff and associates will comply with professional secrecy (Art. 2(3)(4) of the Code of Conduct of the Council of European Bars (CCBE); Art. 87(1)(c) and (2), (7) and (8) Professional Statute). Legal scholars, who are not lawyers but who have authorisation to provide written legal advice, are also bound by a duty of secrecy (Bar General Council Decision n.E–27/05 of 16 December 2005). A lawyer succeeding a colleague originally has privilege regarding facts revealed to his predecessor in the case – including office partners, associates or trainees in the same office or law firm – insofar as they have become acquainted with the case. This large range of subjects emerges not from a duty towards the Bar Association, but from the actual agreement between the lawyer and his or her staff, mainly from the employment agreement which demands loyalty and discretion from the employee, when it refers to business facts of the organisation (Art. 121(1)(e) Employment Code). Violation may result in dismissal based on serious cause. 14. Lawyers can request a dismissal from secrecy from the bar district council’s president under a very strict procedure established in Regulation 94/2006 of 25 May 2006 (see www.oa.pt/Conteudos/Artigos/detalhe_ artigo.aspx?idc=30819&idsc=25368&ida=46058) (see no 12 of this chapter). This is considered exceptional. A law firm member of staff or other non-professional cannot request dismissal from professional secrecy. Noncompliance with professional secrecy may result in criminal sanctions or civil damage compensation (Arts. 195 and 196 Criminal Code; Art. 618, para. 3, Civil Procedure Code; Art. 135, para. 1, Criminal Procedure Code; Art. 87(5) and (7) Professional Statute).

D

Limitations and derogations 15. As previously mentioned, professional secrecy is not based on contract law. If the duty’s beneficiary is a former client who expressly states that the lawyer may reveal a fact for the former client’s own benefit, for instance to give a sustainable alibi against an alleged crime, the lawyer must follow

446

Portugal

procedures (as explained by legal scholar Orlando Guedes da Costa) since, by analogy, publicity regarding the client’s name is allowed through prior authorisation (Art. 89(b)(3) Professional Statute). Written authorisation must then be presented as evidence, to be accepted as valid (Art. 87(5) Professional Statute).2 If a person takes advantage of such display and is not an ex-client, the situation is different, since a lawyer cannot be considered an ordinary witness in a case and, even if secrecy is withdrawn, a lawyer may always refuse to testify. 16. When none of the previous situations occurs, professional secrecy is only withdrawn by a dismissal granted by the district council’s president, with possible appeal to the Bar Association’s president. It must relate to facts which are absolutely necessary for the client’s or his/her representative’s dignity, rights and legitimate interests. In civil procedure cases, if a lawyer refuses to testify, the judge can ask the Bar Council to withdraw the secrecy obligation. In all other procedures, it is only the lawyer who can request dismissal of professional secrecy. Even if dismissal is granted, a lawyer remains entitled to maintain professional secrecy (Art. 87(6) Professional Statute). Dismissal and exemption from professional secrecy fall within the competence of the district council’s president, although it can be granted to a Council member appointed for this purpose. The Bar Association’s president only decides upon appeals against a refusal to dismiss professional secrecy. Other than the above, no appeal against this decision is admissible before a court, not even before administrative courts which are competent to hear appeals against other final decisions from the Bar, as a public association (Art. 6(3) Professional Statute and Art. 268(4) Constitution of the Portuguese Republic). A procedure before an administrative court would, in essence, violate professional secrecy, because only the Bar decides what is covered by professional secrecy. 17. Dismissal of the duty of secrecy is clearly an exception to that duty. A first condition for obtaining a dismissal is an absolute need to use certain facts as evidence, and that no other evidence is available. Second, it must be established that a client’s defence, based on dignity, rights or legitimate interests, is definitely in jeopardy. Therefore, if the facts might endanger the defence, dismissal has to be refused. Facts concerning third parties which are not relevant, or raise no advantage for the client, also cannot be unveiled. Dismissal is seldom granted and the Bar strictly demands absolute need. Moreover, it is considered to the benefit of both parties in formerly unsuccessful negotiations. For instance, in the case of evidence to sustain rights against a 2 Orlando Guedes da Costa, Direito Profissional do Advogado (Legal Profession Law), Almedina, 7th edn (2010), 381.

447

Professional secrecy of lawyers in Europe

statute of limitations, when one of the parties accepts and recognises the other party’s right, it is common to ask for dismissal regarding those facts. Besides the client’s interest, dignity, rights or legitimate interests of defence, a lawyer’s needs to defend him-/herself may demand an exemption. In such cases, client–lawyer trust is no longer a question and consequently professional dignity gives place to dismissal, as long as it does not cause excessive damage to the client. 18. A lawyer’s exclusive legitimacy to gain exemption and, after authorisation, his respective right to keep it, was extended to a judge or court through the Criminal Procedure Code (Art. 135). According to this provision a lawyer can refuse to testify about facts covered by professional secrecy, but the court, having doubts about the refusal’s legitimacy, may proceed with measures to decide whether this refusal is justified. If the court finds it to be illegitimate, an official order for testimony is released. Before a legitimate refusal, an appeal court may also set secrecy aside on grounds of higher interests. Some controversy between legal scholars and courts arises with respect to the above – because the rules on legitimate use of professional secrecy are not clear. If a refusal is illegitimate, only a court order will allow testimony to take place notwithstanding professional secrecy.3 In civil procedure cases, there is an actual ‘duty’ to refuse unless the interests are more important, in which case the court is authorised to apply the above procedure for criminal procedure, with obvious adaptations (Arts. 519(3) and (4)(c) and 618(3) Civil Procedure Code). Every time a court is requested to apply the above procedure, the Bar Association must be heard, and if facts are not covered, there is no right to refuse to testify in court. When the court reaches a different conclusion (against the Bar) it must justify its decision (Art. 163 Criminal Procedure Code). In the end, the decision lies in the court’s hands but appeal is possible according to Article 399(1) of the Civil Procedure Code. In general, only very limited situations overcome prior judgment from the Bar, since public law and the state have set up professional secrecy as an instrument for the defence of public-interest values. 19. In accordance with Article 35 of Law 25/2008 of 5 June 2008 (see http://dre. pt/pdf1sdip/2008/06/10800/0318603199.pdf) implementing the EC Directive 2005/60 of 26 October 2005 on money laundering, lawyers and solicitors have a duty to report any suspicious operations to the president of the Portuguese Bar Association and to the president of the Chamber of Solicitors (see no 34 of this chapter).

3 Germano Marques da Silva, Crimes de Emiss˜ao de Cheque sem Provis˜ao, Principia, 1997, 107.

448

Portugal

20. In accordance with the Professional Statute, independence and autonomy are professional obligations. In line herewith, Article 92 of this Statute provides that ‘a lawyer has the duty to act within the legitimate and legal interests of the client, according to the law and to professional ethics rules’. Consequently a lawyer, as our ethical rules foresee, facing illegitimate or illegal pretensions, has a professional duty to refuse the case and refrain from counselling.

E

Law firms 21. In Portugal lawyers who work for a law firm tend to share privileged information but are bound to secrecy between themselves. It is generally accepted that no restrictions apply to this kind of shared information. When a client hires a law firm, all lawyers within the firm are engaged, usually in a joint power of attorney, and any of them may handle the case. Attorney–client privilege applies to all information provided by clients, regardless of whether the attorney is a partner or an associate. In every case, they work on behalf of the firm.

F

Legal assistants and staff 22. Law firms employ secretaries and other support staff. Shared information, to be passed on to any lawyer handling the case, is covered by the attorney–client privilege.

G

External service providers 23. More and more law firms are currently outsourcing services such as secretarial work, foreign-language translation, document review or research – in every case the duty extends to every professional involved regardless of whether he or she is a lawyer.

H

Multidisciplinary associations 24. Lawyers are entitled to co-operate, on specific cases, with non-legal professionals provided the lawyer ensures from the expert due respect for professional secrecy. This does not mean that a lawyer cannot share information with a nonlawyer; information can be shared but only with the client’s consent and to the necessary extent to safeguard the client’s interests. However, multidisciplinary associations in which lawyers work with nonlawyers on a permanent basis are not admissible in Portugal. 449

Professional secrecy of lawyers in Europe

2

History 25. Professional secrecy for lawyers as a duty (attorney–client privilege) is not a modern concept. The 1837 Judiciary Reform through Decree from 29 November 1836 and 13 January 1837 (Art. 114) proclaimed that confessors, doctors, surgeons and midwives did not have to testify about secrets acquired within their activities. The Judiciary Reform of 1841 expressly added lawyers to this group (Art. 966). The Criminal Code of 1852 established an obligation to maintain attorney– client secrecy and sanctioned any violation with fines and temporary suspension (see Art. 289) for between three months and three years. Later, in 1896, that penalty was reduced to two years. The Portuguese Civil Code of 1867 stated that lawyers who agreed to defend a party could not represent, on the same issue, the opposite party, even if he had cancelled the former power of attorney (Art. 1360). If he were to disclose any secret to the opposite party, to give documents or information, he would be definitely prohibited to appear in court (Art. 1361). Decree 12334 of 18 September 1926 (Art. 50) provided that it was a lawyer’s duty towards his client to keep information secret, preventing the lawyer from testifying against the client. The Judiciary Statute, set by Decree 13809 of 22 June 1927 (Art. 753) and by Decree 15344 of 12 April 1928, maintained this duty. The Criminal Procedure Code of 1929 (Art. 217) established different professions that were not required to testify, including lawyers, priests, prosecutors, notaries, doctors and midwives. The Judiciary Statute set by Decree 33547 of 23 February 1944 (Art. 555) maintained that it was the lawyer’s duty towards his client to maintain absolute secrecy, preventing the lawyer from testifying against the client. The Criminal Code of 1982 (Art. 195) provided a penalty for breach of professional secrecy of up to one year’s imprisonment or a fine equivalent to up to 240 days. In accordance with Article 196, any professional who took advantage of professional secrecy to damage another person or the state was punished by up to one year’s imprisonment and/or a fine equivalent to up to 240 days. 26. The Portuguese Bar Association’s Statute of 1984 (Art. 81(1)) provided that a lawyer was required to keep professional secrecy regarding (i) facts within professional matters that had been delivered by the client, on the client’s order or with the client’s knowledge, within his profession; (ii) facts that came from other colleagues as a bar-elected member; (iii) facts delivered by the client’s co-plaintiff, co-defendant or co-interested party or the client’s representative; and (iv) facts that the client’s opposite party delivered during negotiations and related to pending cases.

450

Portugal

Article 81(2) of the Portuguese Bar Association’s Statute of 1984 stated that the duty of professional secrecy existed whether a case was requested or taken by the lawyer, with or without court representation, with or without fees, whether the lawyer agreed to pursue or represent the case or not, and this was extended to every lawyer who had been in contact with the case. Professional secrecy also covered documents or any other things directly or indirectly related to the issue under secrecy (Art. 81.◦ (3)). The duty of professional secrecy ends when it is absolutely necessary to defend a lawyer’s or client’s dignity, rights or legitimate interests, through prior authorisation of the respective district council’s president, with appeal to the president of the Bar (Art. 81.◦ (4)). Lawyer’s statements cannot be admitted as evidence in court if they are illegitimate (if they do not follow procedure and if they break professional secrecy) (Art. 81.◦ (5)). If the lawyer is given permission to withdraw from the duty he or she may still, in the end, keep the information secret. 27. The Criminal Procedure Code of 1987 (Art. 135) established all the different professions that were not required to testify, including lawyers, priests, prosecutors, notaries, doctors and midwives. If there were any doubts about the legitimacy of refusals, the court could pursue any necessary enquiries and, after concluding that refusal was illegitimate, could require testimony.

3

Supervision

A

The Bar Association 28. A registered lawyer is an independent legal professional who is free to determine how best to defend his or her clients and protect their rights and interests. Lawyers are subject to the Bar Association’s authority, which, through ethics councils, oversees compliance with the legal profession’s code of ethics. Bar authorities cannot direct or instruct lawyers in how to handle their own cases. Their authority is limited to imposition of disciplinary sanctions if a lawyer is charged with breaking his or her ethical duties. If an ethics council finds that a lawyer has violated the code of ethics, disciplinary proceedings will be initiated. The attorney–client privilege is also an ethical duty, whose violation will result in disciplinary sanctions.

4

Sanctions

A

Proceedings and sanctions

a

Disciplinary proceedings and sanctions

29. Being a professional association with public powers delivered by Parliament, with self-regulation and self-disciplinary jurisdiction (Art. 109 451

Professional secrecy of lawyers in Europe

Professional Statute), the Bar has exclusivity on this issue and no other entity can act upon a lawyer’s conduct. 30. After a disciplinary decision rendered by an ethics council, it is possible to appeal to the Superior Council, within the Bar’s disciplinary jurisdiction. This body will later review disciplinary decisions, confirm them or return them for reassessment. Sanctions vary according to the facts and are the following: admonishment, censure, fine (approximately €5,000 in the first instance and €30,000 on appeal), suspension from practice (for up to ten years) and disbarment (expulsion) (Art. 125 Professional Statute). b

Criminal proceedings and sanctions

31. Violations of attorney–client privilege and of professional secrecy are punished by criminal sanctions: a prison term of up to one year or a fine equivalent to up to 240 days (Art. 195 Criminal Code). According to Article 47 of the Criminal Code, each day may be equivalent to an amount ranging from five euros to 500 euros, determined by the court, based on the defendant’s financial situation. Criminal courts have jurisdiction on these cases. Court decisions can be appealed to a competent court of appeal (tribunal da relac¸a˜ o), which then can be appealed, only on legal grounds, to the Supreme Court. No criminal sanctions can be imposed if a lawyer breaks attorney–client privilege by testifying in court on facts under professional secrecy (including before an investigating magistrate). However, disciplinary sanctions may still be imposed and the client can claim damages for any harm suffered (see below). c

Civil proceedings and damages

32. Violation of attorney–client privilege is a breach of contract with the client and compensation for damages may be awarded, if the breach has caused harm to the client. The client bears an obligation to deliver evidence for this purpose. Courts of first instance have jurisdiction over such proceedings, and appeal is possible to courts of appeal and, finally, to the Supreme Court (on legal grounds only).

B

Relationship between criminal sanctions and disciplinary sanctions 33. Disciplinary and criminal sanctions may be imposed independently and have no effect on each other. In accordance with Article 116 of the Professional Statute, the attorney general of any court, and the criminal investigation authorities, have a duty to inform the Bar Association of any disclosure or complaint presented against a lawyer. If a criminal sanction is finally set on a lawyer, this is notified in the Bar’s record (Art. 136(2) Professional Statute) and the Ethics Council may

452

Portugal

initiate disciplinary proceedings against a lawyer based upon the same facts, naturally for violation of different rules.

5

Duty to provide information to the authorities

A

Money laundering and terrorism 34. Professional obligations with respect to money laundering and financing of terrorism are laid down in Law 25/2008 of 5 June 2008 (see no 19 of this chapter). In accordance with Article 35 of the above law, lawyers and solicitors have a duty to report any suspicious operations to the president of the Portuguese Bar Association and the president of the Chamber of Solicitors. These entities (the presidents) have then to communicate promptly and without restrictions to the Portuguese Attorney General and, with respect to the criminal police, to the Financial Information Unit. This duty to report does not apply when a lawyer or a solicitor gathers information for analysis of a legal situation requested by a client, within the context of legal advice, when practising defence or legal representation of a client before court or on account of a pending court case, including counsel on how to present or to avoid a lawsuit, as well as information obtained before, during or after a lawsuit. These professionals have also an abstention duty (when facing suspect activity) and a co-operation duty (with the authorities mentioned above, as well as with any investigating or criminal authorities) to deliver information, upon request of any judicial authority, to the president. Operations such as the purchase and sale of real property, or businesses, as well as equity; management of funds, securities or other assets belonging to clients; opening and management of bank, savings or securities accounts; creation, operation or management of a company or similar structures, as well as legal arrangements; acting on behalf of the client in any financial or real-estate operation; and acquisition and sale of rights over professional sportspersons may not be regarded exactly as the core of the legal profession.4 35. As far as legal practice is concerned, professional secrecy is anchored in a strong defence of the public interest – it is a lawyer’s legal protection but it is also any client’s interest, which demands preservation from the state. On the other hand, by means of Articles 76 and 77 of the Professional Statute (approved by Law 15/2005 of 26 January 2005), the legal profession is incompatible with any activity that might affect a lawyer’s independence and autonomy. Therefore non-financial legal activities and professions, like those of the notary and the 4 Da Costa, Direito Profissional do Advogado, 381.

453

Professional secrecy of lawyers in Europe

lawyer, because they are considered part of the administration of justice, should not follow the same rules as other professions.5

6

Treatment of a lawyer’s documents and correspondence in the context of judicial investigations 36. The treatment of a lawyer’s documents, and the search of a lawyer’s office, are subject to a special legal regime, basically set out in the Criminal Procedure Code (CPC) and the Statute of the Bar Association (Professional Statute), due exactly to a need to preserve professional secrecy as much as possible (see no 40 of this chapter). As formerly stated, the duty to keep professional secrecy is one of the core essences of legal practice, a sine qua non condition of its existence,6 and at the same time one of the lawyer’s most important duties. Legal practice cannot be imagined without protection of professional secrecy – which is in the public interest. It cannot be reduced, therefore, to a simple duty produced by letter of agreement or any contract between a lawyer and third parties or clients. This is commonly accepted by courts.

7

Search of a lawyer’s office 37. The search of a lawyer’s office is explicitly regulated by law, i.e. Articles 176 and 177 of Title III of the Criminal Procedure Code. Before conducting a search, a copy of the search order is delivered to the person in charge of the location, who can attend the search, and can be be accompanied or replaced by a reliable person without delay. If such people are not present, it is delivered to a relative, a neighbour, a doorman or someone else who can replace them. Search of a house or its annexes can only be ordered or authorised by a judge, between 7 a.m. and 9 p.m., otherwise it is void. Home searches can also be ordered by the public prosecutor’s office and carried out by the criminal police. In the case of a lawyer’s office, a judge will personally oversee it, previously calling the local bar president and asking for his presence. Seizure of a lawyer’s documents or those that fall under professional secrecy is regulated by Articles 178 to 180 of the Criminal Procedure Code. All objects used or destined to be used in a crime; objects representing the profit, price or reward of crime; and any objects left at a crime scene which can be used as evidence, are liable for seizure, are attached to the case 5 Ibid., 381. 6 Rog´erio Alves, ‘Buscas e Apreens˜oes em Escrit´orios de Advogados: Reflex˜oes sobre o Respectivo Regime Legal’, JusJornal, 1226, 2 May 2011.

454

Portugal

file and, whenever possible, are delivered to a determined keeper or a court clerk handling the case. Seizures are always ordered or confirmed by court authority. The criminal police may perform seizures during searches, emergency cases or whenever delaying the situation presents danger, to a maximum period of seventy-two hours. Property owners or any right holders submitted to seizure may request modification or withdrawal of the measure. If seized objects are likely to be declared forfeit to the state and if they do not belong to the defendant, court authority can order the person’s presence at a hearing if possible. A judge may authorise or order seizure of any documents presented in writing, even at a post office, and any telecommunications, letters, orders, valuables, telegrams or other correspondence, if he has reasonable grounds to believe that the correspondence was sent by the suspect or was addressed to him, even under a different name or through a different person, but the crime which is the subject of the search must be punishable by at least three years’ imprisonment, and the operation must have great interest for discovering truth or evidence. It is strictly prohibited, under penalty of becoming void, to make any seizure, arrest or control of any other form of correspondence between the defendant and the counsellor, unless the court has reasonable grounds to believe that it is the subject or element of an actual crime. The person ordering the seizure will be the first to know its content. If he or she considers it relevant evidence, it will be included in the case; otherwise he or she will return it to its rightful owner and it can no longer be used as evidence, bound as it is by the duty of secrecy towards its content even if it has no interest for the case. These procedures were fully developed by statute in Law 15/2005 of 26 January 2005 (Arts. 70–2). Imposition of stamps, enrolments, searches and equivalent diligences in lawyers’ offices or in any other place where files are kept, as well as interception and recording of conversations or communications, through telephone or an e-mail address used by a lawyer within the profession, duly mentioned in the Bar’s register, can only be performed and chaired by a competent court judge. A judge should make a call, in advance, to the actual lawyer, as well as the Bar’s district council chairman, chairman’s delegate, other bar representative or delegated other member. If the lawyer representing the Bar fails to be present or the urgency of the operation is not compatible with the preceding procedures, a judge shall appoint to appear immediately any lawyer, preferably from amongst those who have been part of the Bar’s bodies or, when that is not possible, a lawyer indicated by whoever owns the office or the file. Family members or the lawyer’s employees may also watch proceedings as long as they introduce themselves to the judge. Until the arrival of the Bar’s delegate, some possible actions to preserve papers or objects might occur. The 455

Professional secrecy of lawyers in Europe

document search record expressly mentions people at the location, as well as any events occurring during the search. There cannot be seizure of any kind of correspondence referring to the exercise of the profession between a lawyer and a client, or between a lawyer and anyone who entrusted or intended to entrust legal powers or has requested an opinion, although it has not yet been given or even has been refused. Written information or instructions about the subject of the case, appointments and legal mandates or opinions are always considered correspondence. Only correspondence concerning criminal actions or intentions, referring to the lawyer who has been declared the defendant, may be seized. During operations, a lawyer or, in his absence, any family member, employee or Bar representative, may present any claim they consider adequate. If a claim submission aims to preserve professional secrecy, the judge shall immediately set aside any documents or objects without reading them or examining them, in a sealed envelope. Grounds for claiming must be presented within five days, delivered to the court where the case is pending, and forwarded, within the same period, to the president of the Court of Appeal, in the sealed envelope. After unsealing and decision, the documents are returned to the court where the case is pending, and sealed again with the Court of Appeal decision attached. 38. This decision to perform a search specifically states its facts and legal grounds, no matter how urgent the situation might be. A judge (closest to the location of the search) has twenty-four hours to decide on a search request presented by the district attorney or the police investigators. After deciding, the judge informs the Bar Association’s competent district council president to attend operations or send a representative (Art. 177 Criminal Procedure Code). The Professional Statute provides, in addition, that the lawyer in question must also be notified (Art. 70 Professional Statute). Notification to the Bar representative must be presented ‘with due anticipation’, without stating a specific period, but common sense accepts enough time must be given to reorganise schedules and attend the search or, if not, to send another reliable member instead. Baston´ario Rog´erio Alves, professional scholar, lawyer and former Bar president, underlines that the actual Bar can appoint more than one representative to attend searches, if necessary.7 These details must be given to the Bar, and are subject to secrecy of investigation (segredo de justic¸a), so that the Bar ensures adequate assistance during the whole time the search lasts in order to verify compliance with legal requirements. In fact, until the representative’s arrival, no search can be performed except for measures which are required to maintain and preserve any items or papers. 7 Alves, ‘Buscas e Apreens˜oes em Escrit´orios de Advogados’.

456

Portugal

The judge’s presence during the search is compulsory. The exceptional nature of this regime requires this, since the search might turn out to be void if no judge attends (Art. 70 Professional Statute and Art. 177 Criminal Procedure Code). 39. These searches take place in the lawyer’s office, according to the law. It is defined as a closed space, apart from any other activity, usually divided into an office room, a meeting room and a secretarial room; it has to be exclusively for legal practice, with easily determined inner spaces and no mixed areas, especially for the purpose of holding case files, with no other function whatsoever. Protection of lawyers’ offices demands clear boundaries, regardless of professional items being kept elsewhere, and this is directly connected with another important professional principle – the proscription of alternative legal business or multiple activity of a law firm. Things may be complicated if a search is previously scheduled for a place not identified as a lawyer’s office but where information subject to professional secrecy is present. This could be the case in the event of a search performed at a lawyer’s residence, a relative’s residence or even another place. If the investigation authorities suspect the imminent need to preserve professional secrecy, they must take the necessary measures to do so, and require the judge’s presence. Therefore a lawyer’s office protects, through extension of the preservation of professional secrecy, other areas, such as a car boot or a garage. During the search, there may be an intention to seize something particular or just to check different items, usually books, all manner of articles, files or separate documents which may or may not be attached to specific files. This verification usually occurs before any actual seizure, but both actions demand preservation of professional secrecy. 40. Regarding documents, the general rule is that these are covered by professional secrecy and cannot be seized (Art. 180, para. 2, Professional Statute). However, professional secrecy must yield if the documents in question are the subject or an element of crime. If a document specifically sought or spontaneously found during search is itself part of a crime, the procedure discussed in nos 37 and 38 of this chapter will be complied with. Such claim leads the judge overseeing the procedure to ‘hold up the search and take care of the documents or objects called into question, without reading them or examining them, providing them to be rightfully sealed at that precise moment’. During a search of a lawyer’s office, or somewhere else, appropriate or not, documents or objects protected by professional secrecy cannot be read or examined by the criminal police or even by the judge who presides over the search, but must be, on the contrary, duly sealed, to be examined at first hand 457

Professional secrecy of lawyers in Europe

by the competent Appeal Court president (in accordance with procedure laid down in Article 72, paragraphs 3 and 4, Professional Statute; see no 37 of this chapter). Indeed, if any correspondence has been seized because it is part of a criminal act for which a lawyer has been declared defendant, and a complaint is presented, the court should interrupt its search, because during the search, as formerly explained, these documents should not be read or examined, but packed, sealed for the protection of their content and then sent to the competent Appeal Court president (no 37 of this chapter). The Professional Statute clearly provides that no element under professional secrecy – either object, document or correspondence – may be read or examined at the actual search location, unless declared admissible by the procedure explained in no 38 of this chapter.

8

Tapping of telephone conversations with a lawyer 41. Authorisation for the tapping of telephone conversations with a lawyer requires a judge’s order issued by a court, in the event of (i) crimes punishable by imprisonment of more than three years relating to drugs trafficking, guns, fire gadgets, explosives and similar, smuggling, libel, threats, duress, wanton invasion of privacy, or disturbance of the peace perpetrated through the telephone, provided that there is reason to believe that the diligence will prove to be of great interest for discovering truth or obtaining evidence, and (ii) an indication that the lawyer is involved in terrorism, violent or highly organised crime, criminal associations, crimes against peace and humanity, against state security, drugs production and trafficking, currency forgery or the equivalent to currency title forgery, as well as crimes covered by the Convention on Safety of Flight or Maritime Navigation (Art. 187 CPC). A lawyer’s conversation or communication may exceptionally be tapped if the competent judge has reasonable grounds to believe it is an element or the subject of crime committed by the tapped party. Article 188 defines the formalities and requires that an immediate report be made to the judge ordering or authorising the measures, to whom the tapes or similar recordings must be sent. The report must contain the recorded indications of a crime or similar elements which are considered relevant as evidence. The police in charge may take any precautionary measures considered necessary and urgent for preserving evidence. The judge decides the transcription of the relevant recording in the case and all other recording is destroyed; all information not transcribed cannot be used. Defendants and any other people whose conversations have been tapped may examine the records to assess compliance and may obtain copies at their own expense. Violation of these rules causes evidence to become void.

458

Portugal

9

The lawyer as witness 42. A lawyer can be called to testify in court as a witness on matters that do not involve the legal profession, for example if two clients, while waiting for a meeting in the office’s waiting room, engage in a fight and their lawyer becomes witness to the fact. Lawyers cannot testify to the advantage of persons who were not former clients, because they cannot be seen as common witnesses and, even if secrecy is withdrawn by the Bar’s competent body, a lawyer can always refuse to testify. In civil procedure cases, lawyers have the right to refuse to testify as witnesses and courts may request authorisation from the Bar for the lawyer to testify. In other cases, the dismissal procedure is always requested by lawyers. It is not possible to ask for authorisation to withdraw professional secrecy to testify as a witness in a court case with respect to facts the lawyer learnt from a client when acting as counsellor, even if he or she no longer represents this client and the client is currently represented by another lawyer in that specific case.

10

The lawyer and the press 43. In general terms, a lawyer should avoid commenting or speaking to the press or other media or in public about any pending issue or case. A lawyer should always refrain from trying to conduct cases through the media rather than in court. However, lawyers may provide some information to the media, exceptionally under authorisation from the district council’s president in accordance with rules applicable to dismissal of professional secrecy. In case of urgency, in the interest of the lawyers or the client’s defence, regarding dignity, rights and legitimate interests, there is a right to reply against misaccusations, or to clarify false details in the media, as long as the district council’s president has been informed of this approximately five days in advance.

11

Powers of the tax administration and other authorities 44. Under Portuguese law, it is generally accepted that no authority is entitled to compel a lawyer to disclose information protected by attorney–client privilege.

12

State security service 45. The Portuguese state security service, as any other investigation authority, must respect professional secrecy. Any investigation method breaking professional secrecy is considered void, or null, and cannot be used in court as evidence.

459

27 Romania gabriela cacerea, anca mihailescu Nestor Nestor Diculescu Kingston Petersen

Preliminary note 461 1 Scope of and limitations on professional secrecy 461 A Statutory basis and implications 461 B Scope 462 C Persons subject to the duty of professional secrecy 463 D Limitations and derogations 464 E Law firms 464 F Legal assistants and staff 465 G External service providers 465 H Multidisciplinary associations 465 2 History 466 3 Supervision 466 A The Bar 466 B The courts 466 4 Sanctions 467 A Proceedings and sanctions 467 a Disciplinary proceedings and sanctions 467 b Criminal proceedings and sanctions 468 c Civil proceedings and damages 468 B Relationship between criminal sanctions and disciplinary sanctions 469 5 Duty to provide information to the authorities 469 6 Treatment of a lawyer’s documents and correspondence in the context of judicial investigations 470 7 Search of a lawyer’s office 471 8 Tapping of telephone conversations with a lawyer 472 9 The lawyer as witness 473 10 The lawyer and the press 474 11 Powers of the tax administration and other authorities 474 12 State security service 474 13 Conclusions 475

460

Romania

Preliminary note 1. In Romania, lawyers are organised in bar associations which are further organised within the Romanian National Bars Association. Law school graduates become lawyers based on a bar exam and admittance to one of the bar associations. With a few exceptions, only lawyers are entitled to appear in court. There are forty-two bar associations (one for each county and one for Bucharest), each of which is presided over by a dean (decan). Lawyers who are admitted to the Bar are subject to a duty of professional secrecy. Lawyers can exercise their profession in the specific forms regulated by Law 51/1995 regarding the organisation and exercise of the profession of lawyer, including individual cabinets and law firms. In addition to Law 51/1995, the profession of lawyer is further regulated by the Romanian Statute of the lawyer’s profession and the Code of Conduct for European lawyers. Lawyers organised as individual cabinets may also act exclusively for one company under the title of ‘in-house counsel’ or ‘in-house lawyer’ but based on legal assistance agreements, not on employment agreements. Generally, law school graduates who work for a company, the state or a public organisation are not members of the Bar and are contracted based on employment agreements. Such law school graduates join the Colleges of Judicial Counsellors in Romania (Uniunea Colegiilor Consilierilor Juridici din Romania), in which case they are authorised to use the title ‘judicial counsellor’ (consilier juridic). Such judicial counsellors are also subject to a duty of professional secrecy. This report focuses on the duty of professional secrecy, and attorney–client privilege, of lawyers who belong to a bar. Unless indicated otherwise, for the purposes of this report, the term ‘lawyer’ refers to a member of a bar (avocat).

1

Scope of and limitations on professional secrecy

A

Statutory basis and implications 2. The duty of professional secrecy and the attorney–client privilege aim to protect the client. Pursuant to Article 8 of the Statute of Romanian Lawyers, professional secrecy is considered to be a matter of public order. As the trust of persons should be protected, Article 113 of the above-mentioned Act provides, ‘A lawyer is the confidant of the client in relation to the case assigned. Confidentiality and professional secrecy guarantee the confidence in a lawyer and constitute fundamental obligations of lawyers.’ The Romanian legal framework regarding the lawyer’s profession regulates in many instances the lawyer’s duty of professional secrecy. Thus, pursuant to Article 11 of Law 51/1995, ‘The lawyer is obliged to observe professional secrecy regarding any aspect of the case entrusted to him/her, except as provided by law.’ Further, according to the Statute of Romanian Lawyers, Article 8, 461

Professional secrecy of lawyers in Europe

paragraphs 2 and 3, ‘(2) A lawyer is obliged to observe professional secrecy regarding any aspect of the case entrusted to him/her. (3) A lawyer shall not be obliged in any circumstances by any person to disclose professional secrecy.’ According to Article 9(1), ‘The obligation of professional secrecy is absolute and unlimited in time.’ As regards the measures to be taken in view of ensuring the confidentiality of information, the Code of Conduct for European lawyers (adopted by Decision 1486 of 27 October 2007 of the Romanian National Bar Association), which applies to lawyers in Romania, provides under Article 5(3) that: If a lawyer sending a communication to a lawyer in another Member State wishes it to remain confidential or without prejudice he/she should clearly express this intention when communicating the document. If the recipient of the communication is unable to ensure its status as confidential or without prejudice he/she should return it to the sender without revealing the content.

3. An obligation to keep information provided by the client confidential is implied in the client’s contract with the lawyer. Disclosing information without the client’s consent therefore constitutes a breach of contract. A lawyer cannot accept a case to which he/she was previously a party as he/she could have knowledge of facts about which he/she may later be called to testify. Indeed, a lawyer cannot refuse to testify about information received outside the context of handling a particular case for a client. Such information is not protected by the attorney–client privilege. 4. Provisions regarding the duty of professional secrecy of lawyers can also be found in the Criminal Code, which provides that the disclosure of professional secrecy constitutes a criminal offence, and in the Criminal Procedural Code and Civil Procedural Code, which provide that a person bound to professional secrecy cannot be heard as a witness regarding facts and circumstances he/she has become aware of during the exercise of their profession (see nos 22 and 30 below).

B

Scope 5. Professional secrecy covers all information, whether written or oral, provided by the client to his/her lawyer in relation to the services which can be performed by lawyers in accordance with Law 51/1995 regarding the organisation and exercise of the lawyer’s profession, as well as all information which comes to the lawyer’s attention in this context (including information provided by the opposing party or a third party). It is generally accepted that the duty of professional secrecy and the attorney–client privilege cover all information entrusted to the lawyer in order

462

Romania

to enable the latter to defend his/her client’s interest in court (including administrative court) or in his/her legal relationships. In general, any correspondence between a client and his/her lawyer is covered by the duty of professional secrecy and by the attorney–client privilege. Furthermore, any enclosures in such correspondence, advice the lawyer prepares on the client’s rights and obligations, personal notes made by the lawyer in the case, statements of fees and disbursements and breakdowns of services sent along with such statements are also covered by the duty of professional secrecy and the attorney–client privilege. As a principle, the attorney–client privilege covers any information the lawyer receives from a client as well as any information received from the opposing party, the opposing lawyer or any third party in relation to the provided legal assistance. 6. Professional secrecy is strictly limited to information obtained in the practice of law. Any information obtained outside the exercise of the legal profession (e.g. when the lawyer acts as a company director, a professor or a shareholder) is not protected. Thus the lawyer can disclose and can be obliged to disclose such information and the correspondence sent or received by the lawyer outside the exercise of the legal profession is not protected by the duty of professional secrecy or by the attorney–client privilege.

C

Persons subject to the duty of professional secrecy 7. The lawyer’s duty of professional secrecy is of a contractual and legal nature. Consequently, any breach of the duty of professional secrecy constitutes a breach of agreement as well as a violation of the lawyer’s legal obligations. Normally, the client is not bound by similar obligation. Attorney–client privilege must be respected by the court, the public prosecutor’s office and any other party. According to Article 8(3) of the Statute of Romanian Lawyers, the client cannot release a lawyer from the duty of professional secrecy. However, according to Article 46(2) of Law 51/1995 regarding the organisation and exercise of the lawyer’s profession, a lawyer can disclose privileged information with the prior approval of all involved clients. Furthermore, the Criminal Procedural Code provides that a person bound to professional secrecy cannot be heard as a witness without the consent of the person or unit to which it is bound to secrecy (per a contrario a lawyer can testify in the event the client consented to such testifying). The Criminal Code provides that the criminal offence of disclosure of information containing professional secrets shall be initiated on the complaint of the injured party (i.e. the client) and that reconciliation between the parties removes the criminal responsibility (this provision is interpreted by legal doctrine in the sense that disclosure of information containing professional secrets will not constitute a criminal offence in the event the client consented to such disclosure). 463

Professional secrecy of lawyers in Europe

D

Limitations and derogations 8. The duty of professional secrecy is subject to some limitations and derogations. If a limitation applies, the lawyer is obliged to disclose the information that falls under the exception. In the event of derogation, the lawyer can decide whether to disclose the information in question. 9. Limitations are applied in limited cases provided by the law where a higher value is at stake and, as a consequence, a lawyer cannot invoke the duty of professional secrecy in order to refuse to disclose information. These limitations are of strict interpretation as they constitute limitations on due process and on the right to a fair trial (as the disclosed information may be used against the client in court). Thus the Criminal Procedural Code provides certain situations in which lawyers (as well as other persons bound by professional secrecy) must disclose information containing professional secrets if the information consists of (i) data regarding crimes against state security (Art. 270 Criminal Code) or (ii) data regarding very severe crimes like murder, robbery or embezzlement (Art. 262 Criminal Code). In such cases, disclosure must not go beyond the information required to ensure protection of the higher value (e.g. the protection of state security, the protection of human life, etc.). Limitations to the attorney–client privilege are found in the special legislation regarding communication between a lawyer and a convicted person (see no 27 below). 10. Furthermore, there are derogations provided by the law in which a lawyer can disclose information obtained during the exercise of the lawyer’s profession in order to protect its interests. Thus Article 8(3) of the Statute of Romanian Lawyers provides that a lawyer can disclose information containing professional secrets when such lawyer is criminally or disciplinarily investigated or when there is a dispute about the fees agreed. In this case, limited disclosure is necessary in order to guarantee the lawyer a fair trial. However, the lawyer should disclose information only for strict defence needs (thus the disclosure is performed on a ‘need-to-know’ basis). The Statute of Romanian Lawyers also provides for the following derogation: ‘the obligation of professional secrecy shall not prevent the lawyer using information about a former client if it becomes public’ (Art. 8(4)).

E

Law firms 11. Information containing professional secrecy is often shared between lawyers working in the same law firm and, as a consequence, when clients conclude legal assistance agreements with a law firm, all the lawyers of such law firm are bound by the duty of professional secrecy in relation to all information provided by the client (Art. 9(1) Statute of Romanian Lawyers).

464

Romania

F

Legal assistants and staff 12. Law firms employ secretaries, support staff and paralegals who do not and cannot practise law as they are not admitted to a bar (such employees are usually not law school graduates as the relevant legislation forbids law firms to employ law school graduates in positions other than as lawyers). Even though they are not lawyers, the information shared by lawyers with the law firm’s employees is covered by the attorney–client privilege and the lawyers are obliged to inform such persons of this obligation. Furthermore, the relevant bodies of a bar, as well as their employees, are bound by professional secrecy in relation to information acquired during the performance of their duties (Art. 9(2) and (3) Statute of Romanian Lawyers).

G

External service providers 13. Even if it is not done extremely often, some law firms do outsource services. Usually, such services involve the review and translation of documents written in a foreign language or legal work regarding a field in which the law firm does not have the necessary capability (e.g. tax matters in the event the law firm does not have tax experts, or criminal law matters in the event the law firm does not have criminal lawyers). In the event the services are outsourced to a lawyer or a law firm, no difficulty arises as the duty of professional secrecy extends to the lawyer or law firm (in which case professional secrecy extends also to the employees of such lawyer or law firm). In relation to documents containing confidential information sent outside the firm to non-lawyers, there is no express legal provision regulating that such persons are bound by the duty of professional secrecy. However, based on Article 9(2) of the Statute of Romanian Lawyers, which provides that the persons with whom a lawyer collaborates are also bound by the duty of professional secrecy, it could be argued that any persons to which services are outsourced by lawyers are covered by the duty of professional secrecy. Furthermore, in order to avoid any conflict, confidentiality agreements can be concluded with such persons.

H

Multidisciplinary associations 14. Lawyers cannot form a professional association with non-lawyers. However, if the client agrees, a lawyer is entitled to co-operate, on a specific matter, with a professional who is not a lawyer, provided the lawyer ensures respect for professional secrecy. This does not mean that the lawyer cannot share information with the non-lawyer; information can be shared but only with the client’s consent and to the extent necessary to safeguard the client’s interests. 465

Professional secrecy of lawyers in Europe

In any event, privileged information shared by lawyers with non-lawyers in order to prepare the client’s case should remain protected by the duty of professional secrecy (see no 13 above).

2

History 15. The duty of professional secrecy of lawyers is not a new concept. A provision similar to that existing in the present Criminal Code in relation to the criminal offence of disclosure of information containing professional secrets also existed in the very first Romanian Criminal Code, which was enacted on 30 October 1864. Such Criminal Code expressly provided that the disclosure, by lawyers, of information containing professional secrets constitutes a criminal offence sanctioned by imprisonment and a fine. 16. Furthermore, the law regarding the organisation of the lawyer’s profession enacted in 1923 provided that lawyers are bound by the obligation of professional secrecy. The Criminal Procedural Code, enacted on 19 March 1936, and the Civil Procedural Code, enacted on 24 February 1948, provided that lawyers are not obliged to testify as witnesses (until the enactment of these codes, the legal doctrine provided that if a lawyer is called to testify as a witness he may refuse to do so based on the provisions of the Criminal Code). Thus the concept of professional secrecy has not changed significantly over the years.

3

Supervision

A

The Bar 17. During the exercise of his/her profession, the lawyer is independent and must act with all diligence in order to defend the rights and interests of his/her clients (Arts. 109 and 110 Statute of Romanian Lawyers). A lawyer should act in the best interest of clients and always within the limits of the law. Lawyers are subject to the authority of the Bar and the authority of the National Association of the Romanian Bars, which, through the Bar Council or the Council of the National Association of the Romanian Bars, oversees the compliance of lawyers with the entire legislation regarding the profession of lawyer. The bar authorities cannot direct or instruct lawyers in the handling of their cases, as their authority is limited to the imposition of disciplinary sanctions if a lawyer breaches any of his/her obligations.

B

The courts 18. Lawyers must, of course, abide by the law. The civil courts have jurisdiction to hear any claim for professional liability brought against a lawyer by a

466

Romania

client. The criminal courts have jurisdiction over crimes committed by lawyers in the exercise of their profession or outside such exercise (during criminal investigation, the disciplinary investigation performed by the Bar and civil proceedings are suspended by law). As a special rule, any criminal investigation against lawyers will be judged in the first instance by the Court of Appeal.

4

Sanctions

A

Proceedings and sanctions

a

Disciplinary proceedings and sanctions

19. Disciplinary action can be exercised within one year of the date the violation of the corresponding obligation occurred (Art. 266(2) Statute of Romanian Lawyers). Any complaint against a lawyer (e.g. violation of the attorney–client privilege) is investigated by the Bar Council. Complaints against a dean or a member of the Council of the National Association of the Romanian Bars are investigated by the Council of the National Association of the Romanian Bars. The competent council proceeds with the investigation by appointing an investigator. The lawyer under investigation is given an opportunity to be heard, and is entitled to produce information and evidence in support of his/her defence. After such investigation, the competent councils can find (i) that the complaint is inadmissible or unfounded or (ii) that there are sufficient grounds for disciplinary sanctions, in which case the complaint will be referred to the disciplinary commission of the corresponding bar (or the central disciplinary commission in the event the investigation is performed by the Council of the National Association of the Romanian Bars (Arts. 277–81 Statute of Romanian Lawyers)). The hearing of the disciplinary commission is not public, the lawyer, the body which exercised the disciplinary action and any other parties involved in the complaint being subpoenaed. The lawyer will be present in person (such lawyer can be assisted by another lawyer). The absence of the parties is not cause for postponing the judgment (Arts. 283–4 Statute of Romanian Lawyers). 20. If the competent disciplinary commission decides that the lawyer has breached his/her obligations, the following disciplinary sanctions may be imposed: (i) a warning, (ii) a reprimand, (iii) a fine of between approximately €12 and approximately €120, (iv) suspension from the practice of law for a period of up to one year and (v) expulsion from the Bar. Decisions of the disciplinary commission can be appealed to the central disciplinary commission, and decisions issued by the central disciplinary commission in the first instance can be appealed to the Council of the National Association of the Romanian Bars. The lawyer, the dean of the corresponding 467

Professional secrecy of lawyers in Europe

bar or the president of the National Association of the Romanian Bars may file such an appeal within fifteen days of being informed thereof (or within five days in the event of suspension or expulsion from the Bar) (Arts. 88–90 Law 51/1995 regarding the organisation and exercise of the lawyer’s profession). 21. A decision issued in the second instance (by the central disciplinary commission or by the Council of the National Association of the Romanian Bars, as the case may be) may be appealed to the administrative court of the Bucharest Court of Appeal within fifteen days after being informed (Art. 88(4) Law 51/1995 regarding the organisation and exercise of the lawyer’s profession, combined with Art. 287 Statute of Romanian Lawyers and with Art. 301 Civil Procedural Code). b

Criminal proceedings and sanctions

22. Violation of the attorney–client privilege, without right, is considered a criminal offence and is sanctioned with imprisonment for between three months and two years or a fine of up to approximately €7,000 if this act can potentially harm a person (Art. 196 combined with Art. 63 Criminal Code). The Court of Appeal is competent to judge this matter (Art. 281 Criminal Code). The Court of Appeal decision can be appealed to the High Court of Cassation and Justice, and the decision of the latter will be definitive (Art. 29 Criminal Code). No criminal sanctions can be imposed if the lawyer violates attorney–client privilege by testifying in court in the situations provided by the law in which lawyers are obliged to disclose information or when a lawyer may choose not to be bound by the attorney–client privilege (see nos 9 and 10 above). c

Civil proceedings and damages

23. Violation of the attorney–client privilege is a breach of contract with the client and damages may be awarded if the breach has caused harm to the client. The client bears the burden of proof in this regard. The competent courts of first instance (the competent court will be established considering the value of the claimed damages) have jurisdiction over such proceedings. In the event the claim is judged by the court of first instance, an appeal is possible to the Court of Appeal. The decision of the Court of Appeal, issued in the first instance or in the second instance, may be appealed to the High Court of Cassation and Justice. Additionally, civil proceedings can be started during criminal proceedings in the event the criminal proceedings and the civil proceedings have as their object the same violation of the attorney–client privilege, in which case the court judging the criminal offence will judge also the civil claim. If the plaintiff does not wish to start civil proceedings during the criminal proceedings, such plaintiff can start the civil proceedings after a definitive decision has been 468

Romania

issued in the criminal proceedings (during the criminal proceedings any civil proceeding is suspended).

B

Relationship between criminal sanctions and disciplinary sanctions 24. Disciplinary and criminal sanctions are imposed independently and have no effect on each other. In general, the prosecutor will inform the dean of the Bar of a criminal sanction imposed on a lawyer, and the Bar will probably initiate disciplinary proceedings against the lawyer on the basis of the same facts. The imposition of both criminal and disciplinary sanctions on the basis of the same facts does not violate the general principle of non bis in idem as the sanctions are imposed for the violation of different rules. Thus the disciplinary sanctions can be combined with civil, criminal or administrative sanctions (Art. 266(1) Statute of Romanian Lawyers).

5

Duty to provide information to the authorities 25. According to provisions of Law 656/2002 on the prevention and sanctioning of money laundering as well as for setting up some measures for the prevention and combating of terrorist financing, as soon as an individual or a legal person stipulated in Article 8 of that law has suspicions that a transaction which is to be performed has the purpose of money laundering or terrorist financing, he or she shall inform the person or body specially appointed in relation to this matter, which shall notify immediately the National Office for Prevention and Control of Money Laundering. The appointed person shall analyse the received information and shall notify the Office about reasonably motivated suspicions. Among the persons bound by the above-mentioned obligations (persons mentioned by Art. 8 of the law), we mention the following: credit institutions, financial institutions, real-estate brokers and auditors. This legislation also applies to lawyers assisting their clients in (i) transactions relating to the acquisition or sale of real property, shares or elements of the business of a company; (ii) the managing of financial instruments or other assets of clients; (iii) the opening or management of bank accounts, savings or financial instruments; (iv) the incorporation, operation or management of companies; (v) undertakings for collective investments in transferable securities or other similar activities; (vi) trust activities; or (vii) acting on behalf of clients in any financial or realestate transactions (Art. 8(e) Law 656/2002 on the prevention and sanctioning of money laundering as well as for setting up some measures for the prevention and combating of terrorist financing). In the above-mentioned cases, the lawyer must identify the client seeking advice on any of the above matters before providing assistance. However, if the client is seeking assistance in ascertaining its legal position or with respect to litigation, the lawyer can accept the case before fulfilling the identification requirement. 469

Professional secrecy of lawyers in Europe

The legislation also provides that lawyers have no obligation to report the information they receive or obtain from one of their clients during the process of determining the client’s legal status or during the defence or representation of the client in certain legal procedures or in connection with such, including while providing consultancy with respect to the initiation of certain legal procedures, according to the law, regardless of whether such information has been received or obtained before, during or after the closure of the procedures. Furthermore, lawyers (as well as other persons bound by the abovementioned obligation) are obliged to report any cash operations which exceed the amount of €15,000, regardless of whether the transaction is performed through one or more operations that seem to be linked to each other. A lawyer who is informed of facts which he/she knows or presumes to be related to money laundering or the financing of terrorism (including cash operations which exceed the amount of €15,000) must immediately inform the National Association of the Romanian Bars, which shall further notify the National Office for Prevention and Control of Money Laundering. Following such a report, the National Office for Prevention and Control of Money Laundering can request additional information in relation to the matters reported. A lawyer cannot refuse to provide such additional information, as Article 5(3) of Law 656/2002 provides that professional secrecy does not apply in such matters.

6

Treatment of a lawyer’s documents and correspondence in the context of judicial investigations 26. According to Article 10(1) of the Statute of Romanian Lawyers, ‘Any professional communication or correspondence between lawyers, between the lawyer and the client, or between the lawyer and the relevant bar bodies, regardless of the means under which such communication or correspondence is made, shall be confidential.’ Furthermore, Article 10(4) of the same statute provides, ‘It is prohibited to use as evidence and to disregard the confidentiality of any correspondence and information sent between lawyers, or between lawyer and client, regardless of the means under which such correspondence and information is made.’ Thus, in principle, correspondence between lawyers or between lawyers and their clients should be treated as confidential and if, during the course of an investigation, the authorities come upon documents prepared by a lawyer, or letters to or from a lawyer, they should consider these documents to be privileged. 27. According to Article 36 of Law 51/1995 regarding the organisation and exercise of the lawyer’s profession,

470

Romania

(1) The contact between the lawyer and his/her client cannot be hindered or controlled, directly or indirectly, by any organ of state. (2) If the client is under arrest or detention, the administration of the place of custody or detention is required to make the necessary arrangements in order for the rights provided at point (1) above to be respected.

However, some limitations to the above-mentioned provision are included in the special legislation in order to defend higher values. Thus, according to Law 275/2006 regarding the execution of punishments and measures disposed by judicial organs during criminal proceedings, ‘In order to prevent the introduction into the prison through correspondence of drugs, toxic substances, explosives or other items whose possession is also prohibited, correspondence may be opened without being read, in the presence of the convicted person.’ The law provided for an exception in relation to correspondence with lawyers, but it was amended in 2010 and the current version provides for no exception in relation to correspondence between lawyers and the convicted person. Law 275/2006 also provides, ‘Correspondence can be opened and detained if there is probable cause on a criminal offence. The convicted person shall be notified in writing immediately of these measures and that the correspondence is retained in a special file kept by the prison administration.’ However, in order to protect the attorney–client privilege, the above-mentioned provision does not apply to correspondence between lawyers and convicted persons.

7

Search of a lawyer’s office 28. According to Article 35 of Law 51/1995 regarding the organisation and exercise of the lawyer’s profession, (1) To ensure the professional secrecy, documents of a professional nature under the attorney or his office shall be inviolable. Searching a lawyer, his home or his office or lifting of documents and goods can be made only by the prosecutor, under a warrant issued under the law.

Furthermore, Article 228 of the Romanian Statute of the Lawyer’s Profession provides, (1) The professional office and other spaces in which the lawyer is working must ensure the safekeeping of professional secrecy. (2) Professional secrecy covers all information and data of any kind, in any form, provided by the client to the lawyer in order for the latter to provide legal assistance and in connection with which the client has requested confidentiality, and any documents drafted by lawyers that contain or are based on information or data provided by clients for legal assistance and whose confidentiality has been requested by the client. (3) To ensure secrecy, the lawyer keeps documents only at the professional office or in areas approved by

471

Professional secrecy of lawyers in Europe

the Bar Council in this regard. The professional office may be located at the lawyer’s house. (4) Documents of a professional nature are inviolable. To ensure professional secrecy, the lawyer has an obligation to resist the search of home, main professional office or secondary professional office, as well as body search, in relation to documents of a professional nature held in the places mentioned above. (5) The lawyer is obliged to oppose the removal of documents or assets of a professional character unless the conditions of Article 35 of the Law are fulfilled. The lawyer must, immediately, inform the dean of the Bar in relation to such events.

According to Articles 100 and 111 Criminal Procedural Code, the search of homes or offices is decided only by the court of law at the motivated request of the prosecutor. The Criminal Procedural Code does not provide for special provisions in relation to the office or the home of a lawyer. Thus it seems that the office or home of a lawyer may be searched in the event a court of law decides so.

8

Tapping of telephone conversations with a lawyer 29. Article 35(2) of Law 51/1995 regarding the organisation and exercise of the lawyer’s profession provides, ‘The telephone calls of lawyers will not be heard and recorded, with any technical means, and the professional correspondence will not be intercepted and recorded, but on the terms and procedure provided by law.’ In certain cases defined in the relevant legislation (Art. 911 Criminal Procedural Code), the judge may authorise the tapping of communications performed by telephone or by any other electronic means where there are serious indications that the person in question has committed a specific crime or intends to commit a specific crime. Recordings of the conversations between the lawyer and his/her client cannot be used as evidence unless the resulting data or information therein is conclusive and useful regarding the preparation or commission of a crime by the lawyer. The project of the New Criminal Procedural Code (currently it is not known when the project will enter into force) provides that communications between lawyer and client cannot be made the object of a resolution approving the recording of communications, except for cases were there is data that such lawyer is committing or preparing a criminal offence. Furthermore, the project of the New Criminal Procedural Code provides that if, during or after recording the communications of a person, it results that communications between such a person and their client have been recorded, the recording obtained cannot be used in criminal proceedings and will be deleted immediately by the prosecutor.

472

Romania

9

The lawyer as witness 30. Article 79 of the Criminal Procedural Code provides that ‘a person bound to professional secrecy cannot be heard as a witness regarding facts and circumstances he/she became aware of during the exercise of his/her profession, without the consent of the person or unit to which he/she is bound to secrecy’. The entire relevant legal doctrine provides that the above-mentioned article applies to all persons obliged to keep professional secrecy, including doctors, notaries public, priests and lawyers. Moreover, lawyers are obliged to maintain professional secrecy in accordance with the legislation regarding the lawyer’s profession. Furthermore, Article 189 of the Civil Procedural Code expressly provides that lawyers are not obliged to be witnesses in relation to information obtained during the exercise of the lawyer’s profession. The interdiction provided by Article 79 of the Criminal Procedural Code and by Article 189 of the Civil Procedural Code is completed by the provision of Article 196 of the Criminal Code, which provides that Disclosure, without right, of data by the person which received such data, or by a person who has knowledge of such data by virtue of a profession or a position, if this act can harm a person, shall be punished with imprisonment from three months to two years or a fine. Criminal proceedings shall be initiated following complaint by the injured party. Reconciliation between the parties removes the criminal responsibility.

Thus, considering that the disclosure of information containing professional secrets could cause material and moral damage and could provoke distrust in the exercise of certain professions (including the profession of lawyer), the Criminal Code considered such disclosure a criminal offence. Considering the above, when called to testify, the lawyer must determine whether the information in question is protected by the attorney–client privilege. If so, the lawyer is not entitled to disclose it. If the lawyer does so nonetheless, he/she will be deemed to have violated his/her duty of professional secrecy (i.e. to have breached the attorney–client privilege) and will be subject to criminal and disciplinary sanctions. The above-mentioned articles comply with the European Convention on Human Rights as a law cannot require lawyers to disclose information entrusted to them in confidence by clients for the defence of their case (contrary provisions would be in violation of the European Convention on Human Rights). Only in limited cases where a higher value is at stake can the attorney– client privilege not be raised to refuse to disclose information (see no 9 above). 31. It should be noted that the articles of the Civil Procedural Code and the Criminal Procedural Code regarding the interdiction of being a witness in a 473

Professional secrecy of lawyers in Europe

case, or Article 196 of the Criminal Code, which considers the disclosure of professional secrecy a criminal offence, apply only in relation to information obtained as a result of exercising the lawyer’s profession (information obtained from other sources can be disclosed). Furthermore, Article 79 of the Criminal Procedural Code provides that the ‘quality of witness takes precedence over the quality of lawyer, on the facts and circumstances learnt by a lawyer prior to becoming the lawyer or the representative of a party’, meaning that a witness cannot become the lawyer of a party in order not to be obliged to disclose the information he/she knows in relation to a case.

10

The lawyer and the press 32. It is generally accepted that a lawyer can, with the client’s consent, speak to the press in order to defend the client against allegations made in the press. However, the lawyer should refrain from conducting the case in the press rather than in the courtroom. In any case, the lawyer cannot disclose privileged information to the press.

11

Powers of the tax administration and other authorities 33. Under Romanian law, it is generally accepted that no authority is entitled to compel a lawyer to disclose information which is protected by the attorney– client privilege.

12

State security service 34. The Romanian Intelligence Service must also respect professional secrecy. In accordance with Article 13 of Law 51/1991 regarding the national security of Romania, corroborated by Articles 911 , 100 and 111 of the Criminal Procedural Code, the Romanian Intelligence Service can initiate proceedings for the tapping of conversations with a lawyer or searching the home or offices of a lawyer in the event it has indications that the lawyer in question is participating in an activity that constitutes a potential threat to national security or the state. However, such measures can be decided only by a court of law. By way of exception, Article 15 of Law 51/1991, regarding the national security of Romania, provides that in situations that require removal of some imminent danger to national security, the Romanian Intelligence Service can perform the activities mentioned in the paragraph above, even without the authorisation of a court of law. However, such authorisation must be requested as soon as possible, and within forty-eight hours.

474

Romania

13

Conclusions 35. The duty of professional secrecy and the attorney–client privilege are expressly regulated by Romanian legislation even though no relevant case law exists in relation to this matter. The concept of professional secrecy has developed into a difficult one considering the new pieces of legislation (e.g. the legislation on money laundering, the terrorism legislation), which seem to promote transparency in the interest of society as a whole (in some cases, such transparency may be contradictory to human rights legislation, which, in principle, should always prevail).

475

28 Slovakia jozef olej Vice-President of the Slovak Bar Association ˇ arik University in Koˇsice Docent at Pavol Jozef Saf´

Preliminary note 477 1 Scope of and limitations on professional secrecy 478 A Statutory basis and implications 478 B Scope 478 C Persons subject to the duty of professional secrecy 479 D Exceptions and derogations 479 E Law firms 480 F Legal assistants and staff 481 G External service providers 481 H Multidisciplinary associations 481 2 History 481 3 Supervision 483 A The Bar Association 483 B The courts 484 4 Sanctions 484 A Proceedings and sanctions 484 B Relationship between criminal sanctions and disciplinary sanctions 484 5 Duty to provide information to the authorities 485 A Money laundering and terrorism 485 B Collective settlement of debts 487 6 Treatment of a lawyer’s documents and correspondence in the context of judicial investigations 487 7 Search of a lawyer’s office 490 8 Tapping of telephone conversations with a lawyer 491 9 The lawyer as witness 492 10 The lawyer and the press 492 11 Powers of the tax administration and other authorities 493 12 State security service 493

476

Slovakia

Preliminary note 1. After the fall of the socialist system in 1989, an autonomous and independent legal profession was established by Slovak National Council Act no 132/1990. Its creation and existence was founded on the key pillars of the legal profession from the pre-1948 period and pursuant to this Act. The Slovak Bar Association, with autonomous bodies independent of executive state power, was established as a self-governing professional organisation of lawyers. Membership in the Slovak Bar Association was made compulsory for all lawyers. Conditions to be met in order to be entered on the roll of lawyers or trainee lawyers were determined by the Slovak Bar Association within the statutory limits and within the limits of approved professional rules. Slovak Bar Association bodies are the only ones with disciplinary power with regard to lawyers. Decisions issued by the Bar concerning the status of lawyers can be reviewed by courts. Under the Act and within its limits, the Slovak Bar Association is entitled to issue professional rules binding on lawyers and trainee lawyers. The Slovak Bar Association provides for the training of lawyers and trainee lawyers. With regard to the integration of the Slovak Republic into European Union structures, as well as into its internal integration of provision of legal services, it was necessary to adopt a new Act on the legal profession that would reflect the aforesaid facts. It was brought into effect by Act no 586/2003, which fully confirmed the principles of an autonomous and independent legal profession inherited from Act no 132/1990 and simultaneously enabled foreign lawyers to provide legal services in Slovakia. It also united two professions – lawyers and in-house counsels – under a single professional organisation: the Slovak Bar Association. 2. Under the current state of legislation, the Slovak Bar Association as a legal person is a self-governing professional organisation that associates all the lawyers enrolled in the Bar. 3. More detailed regulation of issues concerning the status of lawyers and their rights and obligations in relation to the Bar Association, colleagues and clients can be found in Act no 586/2003 on the Legal Profession and in the professional rules, especially the professional code of conduct. Within the meaning of these regulations, the obligation to keep information confidential constitutes one of the core principles of the independent legal profession. Even though there have been apparent attempts to limit this legally recognised duty in the interest of the protection of higher values, lawyers ought to do their utmost to preserve at least the present state of legislation, which reflects a well-balanced relationship among individual, group and global interests. The duty of professional secrecy is a traditional value of the legal profession, and the cornerstone of its existence and practice. Respect for this duty by society constitutes a condition necessary 477

Professional secrecy of lawyers in Europe

for the effective application of rights and the protection of citizens’ interests in a democratic state governed by the rule of law, and thus we will address professional secrecy in this report with due attention.

1

Scope of and limitations on professional secrecy

A

Statutory basis and implications 4. Article 19 of the Constitution of the Slovak Republic serves as the statutory basis under which everyone shall have the right (i) to maintain and protect his or her dignity, honour, reputation and good name; (ii) to be free from unjustified interference in his or her private and family life; and (iii) to be protected against unjustified collection, disclosure and other misuse of his or her personal data. The aforesaid provision of the Slovak Constitution provides the constitutional platform for the general legislation laid down in the Civil Code, and for the special regulation by Act no 428/2002 on the Protection of Personal Data (the Data Protection Act). These legislative Acts form the foundations for individual pieces of legislation that impose the duty of professional secrecy concerning information of a personal nature in the course of performing civil service; in judicial, administrative, tax or enforcement proceedings; in transmission and forwarding of information, messages and correspondence; and in the provision of medical services or other services in the private sector. 5. As regards the provision of legal services, the duty of professional secrecy is governed and regulated in Act no 586/2003 on the Legal Profession and in Amending Act no 455/1991 on Business and Self-Employment Services (the Business Licensing Act) as amended (the Legal Profession Act), namely in its Section 23. This Act is the basic statutory document for lawyers providing legal services irrespective of their area of practice.

B

Scope 6. The Legal Profession Act governs and regulates the content and the scope of the duty of professional secrecy with regard to information a lawyer learns from a client or about a client in connection with the practice of law. The duty of professional secrecy implies that a lawyer shall not (i) disclose the client’s confidential information, (ii) use the client’s confidential information to the client’s disadvantage or (iii) use the client’s confidential information to the benefit of any third party. Confidential information means any oral or written information gathered by a lawyer from a client or from another person, which the client does not wish to be disclosed and the disclosure of which could be detrimental to the client.

478

Slovakia

7. The duty of professional secrecy applies to all information a lawyer learns in connection with the provision of legal services to his1 client. The duty does not apply to publicly known persons, or to general, publicly available or negligible facts. Therefore not only information directly relating to the representation of the client falls within the scope of the duty of professional secrecy, but also other private, personal, business, tax or political contexts concerning the client. The duty of professional secrecy arises at the moment of the first contact with a potential client, i.e. when a lawyer is informed of the circumstances relating to the future provision of legal services. This duty exists throughout the entire duration of the attorney–client relationship until the client releases the lawyer from the duty, or unless there is an express legal duty to disclose such information. The duty of professional secrecy is not limited in time, it shall never lapse, and it shall even survive termination of the provision of legal services to the client or the client’s death (where a client is an individual – natural person) or dissolution (where a client is a legal entity). The duty of professional secrecy shall last even if the lawyer has been temporarily suspended from the practice, or if the lawyer no longer practises law.

C

Persons subject to the duty of professional secrecy 8. The Legal Profession Act imposes the duty to keep any information about the client confidential only on lawyers. A client is not legally bound by the duty of professional secrecy, even though it is first of all intended to protect him, but it is at the client’s own discretion to decide on the use and disclosure of confidential information provided to the lawyer or information learnt from the lawyer when consulting on a matter with the lawyer.

D

Exceptions and derogations 9. Section 23 of the Legal Profession Act provides an exhaustive list of situations where a lawyer cannot invoke the duty of professional secrecy or does not have to respect it, and thus a lawyer is obliged to, or may, disclose confidential information provided by the client in the following cases. A client (or, after death or dissolution, his legal successor) may in writing and at his own discretion release the lawyer from the duty of professional secrecy in general or only with regard to particular information. Not even under these circumstances can the lawyer disclose confidential information if he is of the opinion that any such disclosure would be detrimental to the client. A client or his legal successor may enter into a dispute with the lawyer who represents or represented the client’s interests; as the subject matter of the 1 Words importing the masculine gender include the feminine gender.

479

Professional secrecy of lawyers in Europe

dispute concerns mainly confidential information reciprocally provided by the client and the lawyer, it would be illogical, if the body authorised to resolve the dispute (when ruling on the merits of the case) were to decide only on the basis of the client’s decision on what information can be revealed by the lawyer and thus on the basis of information selected strictly by the client. Respecting the principle of ‘equality of arms’, the Act allows the lawyer to disclose confidential information to the court or any other authority with a view to protecting his interests even without the client’s consent. The Act provides for a similar possibility in the course of disciplinary proceeding against the lawyer initiated by the client or his legal successor and conducted by the Slovak Bar Association. A lawyer is not bound by the duty of professional secrecy in relation to persons specified in Section 23(8) of the Legal Profession Act to whom he wishes to issue a derivative power of attorney with respect to individual legal acts, or who are in charge of performing particular tasks within the framework of the provision of legal services to the client. Therefore, performance of any act in the interest of the client in fact depends on the disclosure of confidential information to these persons. The Act therefore explicitly imposes the duty of professional secrecy on these persons with respect to any confidential information they learn from the lawyer in connection with the provision of legal services to the client. There are two cases where the Legal Profession Act refers to regulation of professional secrecy in different pieces of legislation that exclude the duty of professional secrecy and that oblige the lawyer to disclose confidential information even without the client’s knowledge or consent subject to the requirements prescribed by law. They concern the lawyer’s duty to disclose confidential information imposed by (i) Act no 297/2008 on the Prevention of Legalisation of Proceeds of Criminal Activity and Terrorist Financing and on Amendments and Supplements to Certain Acts (the Money Laundering Act) referred to in Section 23(1) of the Legal Profession Act; and (ii) the Criminal Code (Act no 300/2005 as amended) and the Criminal Procedure Code (Act no 301/2005 as amended), indirectly referred to in Section 23(9) of the Legal Profession Act.

E

Law firms 10. Law firms are organised as general non-commercial partnerships, limitedliability partnerships or limited-liability companies, and members in such partnerships or companies may only be lawyers admitted to the Bar. The general duty of confidentiality about clients of the law firm is imposed by Section 23 of the Legal Profession Act, as already analysed above.

480

Slovakia

F

Legal assistants and staff 11. A lawyer is not obliged to keep information confidential towards persons specified in Section 23(8) of the Legal Profession Act to whom he wishes to issue a derivative power of attorney in respect of individual legal acts, or who are in charge of performing particular tasks within the framework of the provision of legal services. Therefore performance of any act in the interest of the client in fact depends on the disclosure of confidential information to these persons. The Act therefore explicitly imposes the duty of professional secrecy also on employees of the lawyer, employees of the law firm where the lawyer is a partner, and other persons who are engaged in the provision of legal services. The duty of confidentiality applies to all information they receive from the lawyer in connection with the provision of legal services to the client.

G

External service providers 12. The Legal Profession Act does not specifically govern and regulate the issue of external service providers. Liability of the lawyer who is in contact with the client for the disclosure of confidential information concerning the client’s affairs to other parties is in general terms covered by Section 23(4), according to which the lawyer may reveal information to a person to whom he wishes to issue a derivative power of attorney in respect of individual legal acts, or who is in charge of performing particular tasks within the framework of the provision of legal services, provided that such a person himself is bound by the duty of confidentiality under separate legal rules.

H

Multidisciplinary associations 13. The Legal Profession Act does not specifically govern and regulate the issue of multidisciplinary associations. Liability of the lawyer who is in contact with the client for the disclosure of confidential information concerning the client’s affairs to other parties is in general terms covered by Section 23(4), according to which the lawyer may reveal information to a person to whom he wishes to issue a derivative power of attorney in respect of individual legal acts, or who is in charge of performing particular tasks within the framework of the provision of legal services, provided that such a person himself is bound by the duty of confidentiality under separate legal rules.

2

History 14. Imperial Edict no 138/1852, issued on 24 July 1852, laid down the Rules of Professional Conduct for Lawyers applicable in Hungary, Croatia, 481

Professional secrecy of lawyers in Europe

Slavonia, the Banat of Temeswar and the Voivody of Serbia, with the exclusion of military frontiers (published in Section LIII of the Imperial Code and Governmental Journal no 170, Vol. 1852, issued on 7 September 1852), and it regulated the fundamental rights and obligations of lawyers in Title II (twenty-two sections in total).2 The fundamental obligation of a lawyer was to practise law in accordance with the oath taken and in an earnest, honourable and discreet manner. The lawyer must have proven his conduct to be worth the trust and respectability of the profession he exercises. The first modern regulation of the duty of professional secrecy was laid down in Act no 96/1868, which introduced the Rules of Professional Conduct for Lawyers. In its Section 10 the Act imposed the duty of professional secrecy with respect to all affairs entrusted to the lawyer. Act no XXXIV/1874 on the Rules of Professional Conduct for Lawyers (adopted on 4 December 1874) explicitly stated that under Section 49 a lawyer is obliged to act dutifully, carefully and with all possible accuracy for the benefit of the represented party and is obliged to keep a precise record of each case, containing information about expenses and costs incurred by the lawyer, measures taken by the lawyer, and advances and payments made by the opponent, so that the progress of the matter might be easily determined at any stage. Directions given to clients had to be included in a separate document file. A lawyer was also obliged to preserve confidentiality with respect to all information provided by the client for the purposes of legal representation, or information the lawyer learnt in connection with the practice of law and disclosure of which would be detrimental to the client. A lawyer was not obliged to testify with regard to this information and, moreover, a lawyer could not give evidence without the client’s consent. The Criminal Code on Crimes and Offences (Act no V/1878) in Title XLII, headed ‘Crimes and Offences Committed by Officials and Lawyers’, in addition to a crime of ‘infringement of duties by lawyers’ under Section 482, also governed and regulated offences against ‘prohibition of disclosure of another’s secret’ under Section 328, applicable to, among other persons (public officials, healers, midwives, apothecaries), a lawyer who without a just cause discloses confidential information he learnt in connection with his office, official position or practice, or confidential information that was entrusted to him on these grounds if this information can endanger the good reputation of a family or a person,

whereby he could have been imprisoned for up to three months or fined at the request of the injured party; ‘this provision applies also to assistants of the 2 This part was prepared on the basis of documents provided by JUDr. Peter Kerecman, PhD, lawyer in Koˇsice.

482

Slovakia

aforesaid persons’. Under Section 329 the previous provision did not apply if this person ‘disclosed the secret he learnt or that was entrusted to him in accordance with his duties to the authority or at the request of the authority or during a witness interview’. 15. The newly enacted Act no I/1911 on the Civil Procedure, which entered into force within the meaning of Act no XXXIV/1914 on the Determination of the Effective Date of Act no XXXIV/1914 on the Civil Procedure on 1 January 1915 amending the Civil Procedure Act (Act no LIV/1868), guaranteed the attorney–client privilege under Section 299(4), under which ‘a witness may withhold his testimony . . . relating to any fact if the disclosure of this information would constitute a breach of the duty of confidentiality pertaining to his profession especially as . . . a lawyer if he was not released from the duty of professional secrecy’. The above-mentioned concept of attorney–client privilege was generally accepted in basically unaltered versions without changes until 1948. During the period between 1948 and 1990, legislation authorised the minister of justice to release a lawyer from the duty of professional secrecy in the important national interest with regard to information the disclosure of which could possibly endanger the people’s republic. However, not even in this period of socialism was the original framework of attorney–client privilege impugned or put in doubt. 16. Parliamentary Act no 132/1990 on the Legal Profession re-established the independence of the legal profession as a liberal profession along with broadly framed and respected attorney–client privilege, which was transposed to the new Legal Profession Act of 2003 to the same extent.

3

Supervision

A

The Bar Association 17. At the initiative of a client, the Slovak Bar Association examines the client’s application for the commencement of a disciplinary proceeding against a lawyer who (according to the client) has breached the duty of professional secrecy and disclosed his confidential information. The complaint is examined by the Supervision Committee operating within the Slovak Bar, and on the basis of its findings the chairman of the Supervision Committee submits an application upon which the disciplinary proceeding commences. The decision is taken by a disciplinary panel consisting of three lawyers who are members of the Slovak Bar Disciplinary Committee. If the disciplinary panel comes to a conclusion that a lawyer breached the duty of professional secrecy, it simultaneously imposes a disciplinary action. 483

Professional secrecy of lawyers in Europe

The affected lawyer may lodge an appeal against the decision of the disciplinary panel. The appeal is heard by the Slovak Bar Council. The decision of the Slovak Bar Council may be reviewed by the court.

B

The courts 18. Under Section 59(4) of the Legal Profession Act, a lawyer charged with professional misconduct may seek a judicial review into the final decision imposing a disciplinary action by the Slovak Bar Association.

4

Sanctions

A

Proceedings and sanctions 19. The scope of the infringement, type of conduct, consequences and extent of fault are taken into consideration when imposing a particular type of disciplinary action and, in the light of all circumstances being considered, the matter may be deemed to have been duly handled through the hearing itself, or else by a written or public reprimand, fine, temporary suspension from practice or disbarment. A disciplinary proceeding against a lawyer is governed by Sections 56– 60 of the Legal Profession Act, as well as by separate Disciplinary Rules of the Slovak Bar Association approved by the General Assembly (which is convened regularly at least once in three years and may, inter alia, resolve any amendments to the Disciplinary Rules). These standards in detail govern disciplinary procedure from the moment of receiving the complaint, its review by the Supervision Committee and the decision-making of the disciplinary panel as well as of the appellate body. Rights, duties and obligations of the parties to the disciplinary proceeding, especially of the lawyer charged with professional misconduct, who can be represented by a fellow lawyer, are also governed separately. Regulation of disciplinary proceedings is derived from and based on general principles of criminal procedure.

B

Relationship between criminal sanctions and disciplinary sanctions 20. Breach of the attorney–client privilege guaranteed by the Legal Profession Act may constitute a breach of duties imposed by other laws. It concerns primarily civil law provisions on the protection of personality governed by the Civil Code; penal law provisions under the Criminal Code, such as libel (S. 373); unauthorised use of personal data (S. 374); harm of another’s rights (S. 376); breach of confidentiality of oral expression and other expression of a personal nature (S. 377); or breach of duty under the Data Protection Act or other provisions protecting confidential information of a client in specific situations that do not constitute commission of a criminal act.

484

Slovakia

If a lawyer charged with professional misconduct is prosecuted on the basis of the same facts in a criminal proceeding, the disciplinary proceeding is temporarily stayed until such criminal or other proceeding is pending. If a lawyer charged with a professional misconduct was not punished or if the sentence imposed is not considered to be sufficient for the disciplinary proceeding, after the temporary stay is lifted the disciplinary proceeding resumes without delay.

5

Duty to provide information to the authorities

A

Money laundering and terrorism 21. The Legal Profession Act refers on two occasions to legal regulation in different pieces of legislation that exclude the duty of professional secrecy and oblige the lawyer to disclose confidential information without the client’s knowledge or consent, subject to statutory requirements prescribed by virtue of law. It concerns the duty of a lawyer imposed by (i) the Money Laundering Act, as referred to in Section 23(1) of the Legal Profession Act, and (ii) the Criminal Code (Act no 300/2005 as amended) and the Criminal Procedure Code (Act no 301/2005 as amended), indirectly referred to in Section 23(9) of the Legal Profession Act. In September 2005, Directive 2005/60/EC of the European Parliament and of the Council on the prevention of the use of the financial system for the purpose of money laundering and terrorist financing was adopted, and the Member States were obliged to implement it in their national legislations. The Slovak Republic fulfilled this obligation by adopting the above-mentioned Money Laundering Act. 22. The Act is a significant derogation of the lawyer–client privilege because it defines lawyers as obliged entities under Section 5(1)(j) with the duty to report any significant facts and any unusual transactions, with the aim of preventing and detecting the legalisation of proceeds. A lawyer is obliged to do so without the consent and knowledge of the client when providing a client with a legal service which concerns: (i) buying and selling of real property or business entities; (ii) the management or safekeeping of client money, securities or other assets; (iii) the opening or management of an account with a bank or a branch of a foreign bank or of savings or securities accounts; and (iv) the creation, operation or management of companies, associations, trusts and other legal entities (structures). Under Section 17(1) of the Money Laundering Act, a lawyer shall report an unusual transaction or attempt to make such a transaction to the Financial Intelligence Unit without undue delay; he shall also report to the Financial Intelligence Unit without undue delay a refusal to carry out the required unusual transaction, and he is obliged to co-operate with the Unit. 485

Professional secrecy of lawyers in Europe

The report on an unusual transaction under subsection 3 of the analysed provision should, apart from the identification data of the lawyer and of the persons involved in the unusual transaction, contain the details of the unusual transaction, especially the reason for its unusualness, the chronological order of events, account numbers, information on when the accounts were opened and who their owner and authorised signatory is, photocopies of documents on the basis of which the accounts were opened, identification data of persons authorised to dispose of the accounts, photocopies of contracts and other related documents and information, and other information that may relate to the unusual transaction and is essential for its further examination, as well as the data on third persons possessing information on the unusual transaction. Section 17(6) of the Money Laundering Act emphasises that the fulfilment of an obligation to report an unusual transaction under subsection 1 to the Financial Intelligence Unit shall not be limited by the duty of confidentiality arising under the Legal Profession Act. The legislator realised that such an absolute and unlimited break with attorney–client privilege destroys the trust which is the basic presumption of the existence of the client–lawyer relationship in the course of providing legal services, and therefore it also destroys the essence and philosophy underlying the exercise of the legal profession itself, its existence and its functioning. As a consequence, there is an exhaustive list of cases under Section 22(1) of the Money Laundering Act in which respect for the duty of professional secrecy is given a higher priority than the interest of society in detection of ‘money laundering’. According to the aforesaid provision, the ‘whistle-blowing’ duties imposed by the Money Laundering Act shall not apply to a lawyer with respect to information about a client received from the client or in any other way during or in connection with (i) processing of legal analyses, (ii) defending the client in criminal proceedings, (iii) representing the client in court proceedings or (iv) providing legal advice relating to the proceedings referred to in (ii) and (iii) above including legal consulting on the commencement or prevention of the proceedings referred to in (ii) and (iii) above, regardless of whether such information was received or obtained prior to, during or after such proceedings. 23. Section 23(9) of the Legal Profession Act allows for derogation from the duty of professional secrecy in the area of penal law only in one case. This provision reads that the duty of confidentiality does not apply in a case of lawful disclosure that would prevent a crime (i.e. the legal obligation to disclose information in order to prevent a crime). 24. Section 129(2) of the Criminal Procedure Code reads that the duty of confidentiality invoked by a lawyer as a witness is ex officio generally accepted. In accordance with Section 23(9) of the Legal Profession Act, the Criminal Procedure Code in its Section 129(3) allows for an exception from the duty of 486

Slovakia

confidentiality within the framework of which a ban on questioning the witness under subsection 2 does not apply to a duty to testify about a crime a lawyer is obliged to prevent under relevant Criminal Code provisions. The duty of a lawyer to give testimony with regard to confidential information is imposed only along with the fulfilment of statutory conditions laid down in Section 341 of the Criminal Code, which reads that if a lawyer learns by reliable means that someone is preparing to commit, or commits, a crime with respect to which the Act provides for a minimum sentence of ten years of imprisonment, or one of the corruption crimes specified in Part 3 of Title 8 of the Special Part, and he does not prevent the commission or completion of such crime in person or through any other competent person or authority, a sentence of imprisonment of up to three years shall apply.

B

Collective settlement of debts 25. In the Slovak Republic, this activity falls within the framework of bankruptcy and composition proceedings. Lawyers are registered as trustees in bankruptcy, the list of which is maintained by the Slovak Ministry of Justice. Courts appoint individual trustees in bankruptcy to deal with issues arising among creditors and bankrupts. All procedures are governed and regulated by the Bankruptcy and Composition Act.

6

Treatment of a lawyer’s documents and correspondence in the context of judicial investigations 26. Legislation respects the confidentiality of the personal contact and discreet nature of correspondence between a lawyer and a client in the course of the provision of legal services. It applies absolutely and without exceptions to the contact with the client in the law office or at any other place agreed with a client. Exceptions to this recognised principle, which is a requirement for the exercise of the attorney–client privilege, are regulated by the Criminal Procedure Code. Specific regulation governs the possibility to talk to the detained client in custody without the presence of any third party, the possibility to seize and open mail or any other written correspondence, the possibility to tap and record telecommunications operations, or the possibility to track and record lawyer–client communications by means of IT devices. The regulation differs depending on whether the lawyer provides general legal services or whether in a particular criminal matter a lawyer agreed to act as a defence counsel for the accused. 27. As regards the duty of professional secrecy relating to cases of seizure (Ss. 89, 90) and the ban on witness questioning (S. 129), the Criminal Procedure Code does not draw a distinctive line between a lawyer in general and defence counsel of the accused. The legislator distinguishes between a lawyer 487

Professional secrecy of lawyers in Europe

and defence counsel of the accused in other situations where the Criminal Procedure Code provides for the possibility to monitor and record lawyer–client communication. Several cases relate to situations where the accused was taken into custody and his freedom restricted. In such cases, the defence counsel can talk to the client without the presence of any third party. There is no statutory exception to this right. In this respect the director of the pre-trial custody institution shall ensure that the police officer can see but not hear the conversation between a lawyer and a client. The accused may also meet the lawyer who represents him in another legal matter without the presence of any third party. However, this right is limited if the accused is in so-called collusive custody (in cases where it can be reasonably feared that the accused might influence witnesses, experts or co-defendants, or obstruct the establishment of facts relevant to the prosecution). Limitation consists in the requirement of prior consent given to lawyer and client by the prosecuting authority or the court, which can decide to be present during their meeting. If the correspondence apparently is one between defendant and defence counsel, it is inadmissible to look into it. This does not apply to correspondence between the lawyer and the detained defendant in custody. The defendant may make a phone call to his defence counsel without the presence of any third person. He may also speak with the lawyer over the phone with regard to any other legal matter; however, in that case he needs the prior consent of the prosecuting authority or the court, who may decide to be present during such phone call. 28. The Criminal Procedure Code equally differentiates between a lawyer and a defence counsel of the accused in cases of communication with an accused who is not detained. As regards written communication between a lawyer and a client, Sections 108 and 109 of the Criminal Procedure Code read that if a client is in the position of a defendant, then it is possible to seize and open mail if it is necessary to determine the content of undelivered telegrams, letters or other mail coming from the defendant, for the purpose of establishing facts relevant to the prosecution. This eventuality under Section 108(3) of the Criminal Procedure Code is excluded when it concerns letters by mail or other data carrier relating to the relationship between defence counsel and defendant. Section 113 of the Criminal Procedure Code provides that it is permitted to monitor and keep track of persons and things, which means the receipt of information about the movement and actions of a person or movement of a thing by secret means. If tracking reveals that the defendant communicates with his defence counsel, information so obtained cannot be used for the purposes of criminal proceeding and must be destroyed in the manner prescribed by law without delay; this procedure does not apply to information relating to 488

Slovakia

a matter in which the lawyer does not represent the defendant as defence counsel. In cases prescribed by law under Section 114 of the Criminal Procedure Code, it is permitted to produce a video, audio or audiovisual recording if there is a well-grounded presumption that it may help to establish facts important for the criminal proceeding. The difference between a lawyer and a defence counsel lies in the fact that if the production of video, audio or audiovisual recordings reveals that a defendant communicates with his defence counsel, the information so obtained cannot be used for the purposes of criminal proceeding and must be destroyed in the manner prescribed by law without delay; this procedure does not apply to information relating to a matter in which the lawyer does not represent the defendant as defence counsel. 29. This different status of a lawyer and a defence counsel is similarly regulated in connection with the possibility to tap and record telecommunication operations regarding the defendant. Section 115 of the Criminal Procedure Code reads that if it is discovered in the course of the tapping and recording of telecommunication operations that the defendant communicates with his defence counsel, the information so obtained cannot be used for the purposes of criminal proceeding and must be destroyed in the manner prescribed by law without delay; this procedure does not apply to information relating to a matter in which the lawyer does not represent the defendant as defence counsel. 30. The lawyer’s duty of confidentiality is recognised entirely and without exception in the course of criminal proceeding when it concerns a lawyer as defence counsel and it applies to confidential information received from the defendant and about the defendant while the defence counsel represents his client. It is reflected in legal rules governing the following areas: personal communication and contact with the defendant without the presence of any third parties; protection of confidentiality of information sent in a written form or in any other form; and the monitoring, tracking and recording of meetings between defence counsels and defendants. If law-enforcement agencies or courts do not respect these provisions, information obtained in this way cannot be used as evidence since it was received in breach of law. The Criminal Procedure Code restricts the duty of professional secrecy applicable to confidential information obtained and received from a client in written form. Under Section 89 anyone who possesses an item important for the criminal proceeding shall render such item to a police officer, prosecutor or court at his/its request; if the item must be seized for the purposes of criminal proceeding, the holder is obliged to render this item upon demand. Although this duty is generally imposed equally on a lawyer, the attorney– client privilege guaranteed by law is respected since in this very provision the legislator provides for an exception applicable to documents or other items 489

Professional secrecy of lawyers in Europe

relating to information that cannot be subject to questioning, apart from cases when a lawyer has been released from the duty of professional secrecy. While respecting the stated principles, the Criminal Procedure Code regulates preservation and disclosure of computer data under Section 90 as a special form of provision and seizure of an item. Accordingly, the court or prosecutor may issue a well-founded written warrant to a person who possesses or who exercises control over computer data in order to (i) preserve and maintain the integrity of such data, (ii) enable data copying and keeping of copies, (iii) disable access to the data, (iv) remove data from the computer system and (v) provide such data for the purposes of criminal proceedings. As regards written communication between a client and a lawyer, Sections 108 and 109 of the Criminal Procedure Code read that if the client is accused of a criminal offence, it is possible to seize and consequently open mail if it is necessary to learn of the content of undelivered telegrams, letters and other mail coming from the accused or addressed to him in order to duly establish the facts of the case relevant to the criminal proceedings at issue. However, this possibility is excluded in the case of letters by mail or other data carrier relating to the correspondence between a lawyer as defence counsel and a client under Section 108(3) of the Criminal Procedure Code. Generally, however, the Criminal Procedure Code authorises the opening of mail coming from a lawyer (provided that the lawyer is not a defence counsel of the accused to whom the mail is addressed) in criminal proceedings on serious crimes, corruption crimes, misuse of power by public officials and money laundering, if there is a reasonable and well-grounded suspicion that mail was used to commit a criminal offence or that it is in any way connected with the criminal offence.

7

Search of a lawyer’s office 31. The search of the office is governed by Section 101 of the Criminal Procedure Code. The lawyer’s office may be searched to produce evidence for the prosecution of alleged criminals, or to arrest a suspect, or to seize any tangibles or intangibles with a view to guaranteeing the compensation of damages suffered by the injured party. The Slovak Bar Association adopted an internal rule in which it emphasised the importance of the duty of confidentiality if a search of a lawyer’s office is conducted. The Slovak Bar Association emphasised that: 1. It is absolutely necessary to verify whether the search warrant meets all statutory requirements prescribed by virtue of law, whereby at the pretrial stage such search warrant may be issued by a prosecutor or, with the prosecutor’s consent, by a police investigation officer, and at the trial stage by a judge.

490

Slovakia

2. It is absolutely necessary to inform the police investigation officer of the lawyer’s statutory duty of confidentiality and of the limited duty to provide belongings, as well as of legal rules applicable to the protection of personal data. The lawyer shall at the same time ask the police investigation officer to request the Slovak Bar Association to appoint a representative or any other lawyer who will be present during the search. 3. It is absolutely necessary, at the request of the police investigation officer, to hand in any things or belongings specified in the search warrant provided that they are in the lawyer’s possession and provided that they are not covered by the duty of confidentiality. 4. It is absolutely necessary to point to the fact that some things, documents or belongings specified in the search warrant are covered by the duty of confidentiality, and at the same time ask that this information must be included in the search protocol and ask the police investigation officer to respect this duty of confidentiality. 5. It is absolutely necessary to ask for a copy of the search protocol, and submit a copy thereof to the Slovak Bar Association.

8

Tapping of telephone conversations with a lawyer 32. The recording of a conversation between a lawyer and a client during their mutual meeting is not excluded by any legislation. The confidential nature of the meeting and the duty of professional secrecy imply that the recording of the interview is based on their mutual agreement. The Rules of Professional Conduct for Lawyers, as professional rules, elaborate provisions of the Legal Profession Act in greater detail, and Section 8 thereof reads that a lawyer may produce an audio or video recording from an interview with a client or with a third person only with their consent, and that it can be further used only in accordance with law. 33. If a lawyer or a client produces an audio recording from the meeting without the consent of the other party, and if he intends to use it to the detriment of the other party, he runs the risk that the other party will seek satisfaction or compensation for the violation of legal provisions and will sue for civil, administrative or criminal damages. This concerns mainly the application of civil law provisions on the protection of personality, and penal law provisions of the Criminal Code, such as libel, unauthorised use of personal data, harm of another’s rights, breach of confidentiality of oral expression and other individual means of expression, or else other legislation protecting confidential information of a client in specific situations that do not necessarily have the nature of a criminal offence. 34. A special regime applies in the criminal proceeding where the Criminal Procedure Code introduces separate rules with regard to telephone conversations 491

Professional secrecy of lawyers in Europe

of a defence lawyer with a detained client in custody (Section 34); production of video, audio or audiovisual recordings (Section 114); and tapping and recording of telecommunication operations (Section 115). In general, it may be concluded that a lawyer who is not acting as a defence lawyer of the accused can be tapped by the police in cases exhaustively listed in applicable legal rules, provided that all requirements imposed by virtue of law are fulfilled and consequently the recording of the conversation with the client can be produced in evidence in the criminal proceeding.

9

The lawyer as witness 35. A lawyer is obliged to appear in court or before another public body if he is called to testify as a witness. After being required to vouch for the truth of his evidence and after being informed about the facts of the case in which he is to give testimony, and about the circumstances about which he is to testify, the lawyer must inform the court or any other public body whether, and to what extent, the duty of professional secrecy applies to information he is supposed to give evidence on. Apart from statutory exceptions, the interrogator must ex officio respect the attorney–client privilege as an impediment to hearing the witness. This is governed by Section 23 of the Legal Profession Act, and in the area of criminal law by Section 129 of the Criminal Procedure Code, under which a lawyer shall not be questioned if his witness testimony might breach a duty of professional secrecy imposed or recognised by law or by international treaty, except for a lawful disclosure authorised by the appropriate body or by the entity in the interest of which he is bound by the duty of professional secrecy. As emphasised above, the law allows for an exception according to which the ban on testifying as a witness justified by the duty of professional secrecy shall not apply to any cases of lawful disclosure that would prevent a crime under the Criminal Code. Section 36 of the Criminal Procedure Code reads that a lawyer cannot act as a defence counsel if he was a witness of the matter being investigated. Therefore this provision resolves the conflict of a witness and a defence counsel being the same person. Equally, even in this case a defence counsel cannot give testimony as a witness on facts learnt in connection with the defence.

10

The lawyer and the press 36. The Legal Profession Act does not impose any obligation on the lawyer to inform the public or the media of any pending legal disputes or criminal proceedings. Always and to the full extent, only the client and his lawyer may decide about the contents of any information to be provided to the public and the media, and the scope thereof. The above-mentioned obligation is imposed

492

Slovakia

by virtue of law only on state authorities, local government authorities, courts, prosecution authorities and police.

11

Powers of the tax administration and other authorities 37. As any other citizen, a lawyer is obliged to fulfil his duties imposed by the Tax Administration Act and provide tax authorities with accounting documents necessary to levy tax. In this respect, he should inform his client that an accounting document may be subject to tax control and they should agree on the scope of information to be contained in the document. A duty of confidentiality is owed with respect to all other information about the provision of legal services even in proceedings before the tax authorities. Under Section 34 of the Enforcement Procedure Act, a lawyer is not obliged to provide any information necessary for the conduct of the enforcement proceeding, and thus the lawyer applies the duty of professional secrecy towards the enforcement authorities.

12

State security service 38. As laid down in Act no 46/1993 on the Slovak Intelligence Agency (Slovensk´a informaˇcn´a sluˇzba), the Slovak Intelligence Agency may seek the disclosure of personal data from public information systems even without the consent of the data subject. State authorities are obliged to assist the Slovak Intelligence Agency in this respect, and provide it with all necessary information and documents. If the Slovak Intelligence Agency makes any record as a result of monitoring areas accessible to the public, this record may be used as evidence in criminal proceedings. Apart from the above, police investigation officers, prosecutors and courts cannot use any information obtained by the Slovak Intelligence Agency as evidence in criminal proceedings. This fully applies to the relationship between a lawyer and a client if their contact is not made in a public place.

493

29 Slovenia nata sˇ a pipan nahtigal, tja sˇ a lahovnik ˇ Odvetniki Selih & partnerji, o.p., d.o.o.

Preliminary note 495 1 Scope of and limitations on professional secrecy 496 A Statutory basis and implications 496 B Scope 499 C Persons subject to the duty of professional secrecy 500 D Limitations and derogations 501 E Law firms 502 F Legal assistants and staff 502 G External service providers 503 H Multidisciplinary associations 503 2 History 503 3 Supervision 504 A The Bar Association 504 B The Ministry of Justice and the Market Inspectorate 506 C The courts 506 4 Sanctions 506 A Proceedings and sanctions 506 a Disciplinary procedure 506 b Disciplinary sanctions 508 c Criminal proceedings and sanctions 509 d Civil proceedings and damages 510 B Relationship between criminal sanctions and disciplinary sanctions 511 5 Duty to provide information to the authorities 512 A Money laundering and terrorism 512 B Lobbying 513 6 Treatment of the lawyer’s documents and correspondence in the context of judicial investigations 514 7 Search of a lawyer’s office 516 8 The lawyer as witness 518 9 Tapping of telephone conversations with a lawyer 520 10 The lawyer and the press 520 11 Powers of the tax administration and other authorities 521 12 State security service 522 13 Future, and conclusion 522

494

Slovenia

Preliminary note 1. In Slovenia, in accordance with the Attorneys Act,1 attorneyship is an independent service where an attorney may pursue his/her career independently or in a law firm (Art. 4 Attorneys Act). An attorney may also be employed with another attorney (employed attorney). As a general rule, only attorneys may appear before the court for remuneration.2 The right to pursue the career of attorney is obtained by means of entry in the register of attorneys kept by the Slovenian Bar Association, provided that other conditions are fulfilled (i.e. having passed the attorney’s examination; having four years of practical experience as an articled lawyer, of which at least one year must have been with an attorney; having passed an examination in ethics, concluded an escrow account agreement, etc.). Law firms and foreign attorneys are – subject to fulfilment of the prescribed conditions – also subject to registration with the Slovenian Bar Association. Slovenian attorneys are members of the Bar Association of Slovenia (Odvetniˇska zbornica Slovenije) as the main attorneys’ organisation covering eleven regional assemblies (obmoˇcni zbori), whereof membership is based on territorial and functional principles (membership in the regional assembly is compulsory). Their territories predominantly coincide with the territories of district courts. The Slovenian Bar Association includes the following bodies: (i) General Meeting, (ii) Management Board, (iii) president, (iv) Supervisory Board, (v) disciplinary prosecutor, (vi) Disciplinary Commission of First Instance, (vii) Disciplinary Commission of Second Instance and (viii) Disciplinary Court. Members of the Slovenian Bar Association are bound by the Code of Ethics. A breach of the Code of Ethics may result in the initiation of disciplinary procedures against the infringing lawyer and in the imposition of disciplinary sanctions. In-house counsel (lawyers employed by an employer other than an attorney or law firm) are not members of the Bar. There are no specific statutory 1 Official Gazette of the RS, no 18/1993, as amended. 2 A party in a civil procedure may carry out procedural acts personally or through a representative (Art. 86 Civil Procedure Act). In proceedings of extraordinary judicial review, a party may carry out procedural acts only through an attorney (Art. 86 Civil Procedure Act). In proceedings before local courts, any person with full legal capacity may act as a representative of a party; while in proceedings before district courts, higher courts and the Supreme Court of the Republic of Slovenia, parties may only be represented by an attorney or another person who has passed the bar exam (Art. 87 Civil Procedure Act). An attorney may be substituted by a senior associate employed with him/her or his/her law firm, or, in case of a small-claims procedure, also by an associate employed with him/her or his/her law firm. The power of attorney may also be granted to a law firm. In criminal proceedings, an offender may only be represented by an attorney; however, the attorney may be substituted by a senior associate (Art. 67 Criminal Procedure Act). Representation by an attorney is mandatory in certain cases.

495

Professional secrecy of lawyers in Europe

provisions with respect to professional secrecy (attorney–client privilege) that would apply to in-house counsel. General provisions of the Employment Relationship Act3 and of the Companies Act4 on professional secrecy of the employee also apply to in-house lawyers, yet without any additional protection of the attorney–client privilege between the lawyer and his or her employer. This chapter focuses on the duty of professional secrecy (attorney–client privilege) of lawyers belonging to the Bar. For the purpose of this chapter the term ‘lawyer’ shall hereinafter refer to a member of the Bar, unless expressly stipulated otherwise.

1

Scope of and limitations on professional secrecy

A

Statutory basis and implications 2. Article 137 of the Constitution stipulates that the attorneys’ profession as a part of the administration of justice is an independent and autonomous service regulated by law.5 The attorneys’ profession is regulated by the Attorneys Act. Article 6 of the respective Act expressly stipulates that the lawyer shall keep confidential any information entrusted to him or her by the client. Paragraph 2 of the respective Article expands the obligation to all other employees of the law firm. Despite the fact that reference is usually made to the privilege of the lawyer, the duty of professional secrecy is not a lawyer’s privilege, but rather includes, by its nature, his/her duty to protect the rights of parties with whom he/she is in a confidential relationship. Therefore it is most important that the duty of professional secrecy actually involves the protection of the human rights of the lawyer’s clients, as granted by the Constitution in Article 35,6 paragraph 1 of Article 37,7 paragraph 1 of Article 38,8 and, with reference to the counsel for the defence in criminal proceedings, also within the framework of the right to defence determined by Article 29 of the Constitution,9 since the confidentiality of the relationship between a lawyer and a defendant is, so to speak, a natural constituent part of the said rights.10 3. Article 142 of the Criminal Code11 envisages the duty of professional secrecy of certain professions, i.e. lawyers, doctors, priests, social workers, psychologists etc. Breach of the duty of professional secrecy is sanctioned by 3 5 7 8 10

Official Gazette of the RS, no 42/2002, as amended. 4 Ibid. Official Gazette of the RS, no 33/1991, as amended. 6 Protection of privacy. Protection of the privacy of correspondence and other means of communication. Protection of personal data. 9 Legal guarantees in criminal proceedings. Decision by the Constitutional Court of the Republic of Slovenia, the concurring opinion of Judge Jadranka Sovdat, M.Law, joined by Judge Marija Krisper Kramberger, M.Law, to Decision no Up-2530/06 of 5 March 2010, Official Gazette of the RS, no 42/2010. 11 Official Gazette of the RS, no 55/2008, as amended.

496

Slovenia

imprisonment of up to one year or by imposition of a criminal fine. However, breach of the duty of professional secrecy is not sanctioned if the person has breached the duty (i) for the general benefit; (ii) for the justified interest of the public; (iii) for the benefit of another person, provided that the benefit of the other person prevails over confidentiality; or (iv) whenever release from the duty of professional secrecy is stipulated by law. The respective criminal offence is not subject to prosecution by a state prosecutor, but is left to prosecution by the injured party. It is worth noting that there are no publicly available court decisions dealing with the criminal offence of breach of the duty of professional secrecy by a lawyer. The duty of professional secrecy is in place to protect the higher and the more important value of the right to privacy. It is therefore not surprising that the respective criminal offence is classified under the chapter of criminal offences against human rights and freedoms. The state must ensure that the information disclosed by an individual to a lawyer remains confidential and that the lawyer will not disclose the confidential information without being sanctioned for disclosure.12 In addition, the incrimination of the disclosure of professional secrecy also prevents the lawyer from becoming the extended hand of the police, which would doubtless threaten one’s fundamental right to prepare one’s defence before the court and the right not to incriminate oneself. The lawyer can thus not prepare an efficient defence of his/her client if the client may not present the facts to his/her lawyer freely and without reservations.13 The information protected by the duty of professional secrecy is information not known to a wider circle of people, and the respective person has a justified interest in such information remaining confidential. The definition of the secret also includes the secret of a dead person.14 It is not necessary that the offender has learnt the secret directly from the person to whom the secret applies; he/she may learn it through the review of documents.15 The criminal offence of breach of the duty of professional secrecy may only be committed or omitted intentionally with the consequence that the confidential information becomes available to a third, unauthorised, party. Breach of professional secrecy merely by negligence does not constitute a criminal offence under the Slovenian law (Art. 142, in connection with Art. 27, of the Criminal Code).16 The duty of professional secrecy may be breached through 12 Damjan Koroˇsec, ‘Poklicna Skrivnost v slovenski kazenski zakonodaji: med prepovedjo in dolˇznostjo’, Socialna varnost, 3 (1997), 195. 13 Decision by the Constitutional Court of the Republic of Slovenia, no Up-101/96 of 1 October 1998 (OdlUS VII, 249). 14 Mitja Deisinger, M.Law, Kazenski zakonik s komentarjem, Posebni del, GV zaloˇzba, Ljubljana, 2002, 145. 15 Ibid. 16 In accordance with Article 27 of the Criminal Code, a criminal offence may only be committed by negligence if this is expressly provided by law. Since the Criminal Code does not foresee

497

Professional secrecy of lawyers in Europe

written or oral disclosure or in any other way (e.g. the offender has enabled the review of documents, etc.), as long as the disclosure results in the secret becoming known to others.17 The respective criminal offence may also be committed by a legal entity (e.g. a law firm) (Art. 25 of the Liability of Legal Persons for Criminal Offences Act).18 4. The minimum standards of the protection of human rights arising from the case law of the European Court of Human Rights are binding upon all Member States of the Council of Europe. Decisions by the European Court of Human Rights have the power of precedent; accordingly, the standpoints of the European Court of Human Rights are also binding on the Slovene state authorities.19 The European Convention on Human Rights (ECHR) has been directly invoked in more than three hundred decisions by the Constitutional Court, and in approximately eighty cases the Constitutional Court has directly referred to the case law of the European Court of Human Rights in the reasoning of its decisions.20 The Constitutional Court rarely considers rights under the Constitution and the ECHR in parallel; if the level of protection is the same or very similar in the Constitution and the ECHR, then the Constitutional Court primarily applies the Constitution, and the Constitution is also applied when it guarantees a higher level of protection compared to the ECHR.21 However, when the ECHR or the case law of the European Court of Human Rights provide for a higher level of protection, the Constitutional Court expressly refers to them.22 Such decision making complies with paragraph 4 of Article 15 of the Constitution, which stipulates that no rights regulated by legal Acts in force in Slovenia (e.g. the ECHR) may be restricted on the grounds that the respective right is not recognised, or is only recognised to a lesser extent, by the Constitution.23

17 18 19

20

21 22

498

a breach of professional secrecy by negligence, this criminal offence may only be committed intentionally. Deisinger, Kazenski zakonik s komentarjem, 145. Official Gazette of the RS, no 59/1999, as amended. Decision by the Constitutional Court of the Republic of Slovenia, the concurring opinion of Judge Jadranka Sovdat, M.Law, joined by Judge Marija Krisper Kramberger, M.Law, to Decision no Up-2530/06 of 5 March 2010, Official Gazette of the RS, no 42/2010; referring to Dr M. Zupanˇciˇc, ‘On the Interpretation of Legal Precedents and of the Judgments of the European Court of Human Rights’, in The Owl of Minerva, Essays on Human Rights, Utrecht: Eleven International Publishing, 2008, 351–92. Dr Ciril Ribiˇciˇc, ‘Implementing European Standards into the Case Law of the Constitutional Court’, available at www.us-rs.si/o-sodiscu/konference/pcceu-bled30-september-2-oktober-2004/presentation-by-dr-ciril-ribicic-judge-of-the-cons-3379. Ibid., referring to the Constitutional Court of the Republic of Slovenia no U-I-60/03 of 4 December 2003. Ribiˇciˇc, ‘Implementing European Standards’. 23 Ibid.

Slovenia

It derives from the above statement that the lawyer’s duty of professional secrecy can also be directly based on Article 6 and Article 8 of the ECHR. Article 6 guarantees the right to legal assistance that can only be effective whenever the client can be sure that the information he/she has entrusted to his/her lawyer will not be disclosed by the latter or used against the client. Article 8 guarantees the right to respect for one’s private and family life, home and correspondence. Such protections extend to the correspondence between the client and his/her lawyer.

B

Scope 5. In accordance with Article 6 of the Attorneys Act, the lawyer must protect as confidential any information entrusted to him/her by the client. Hence it could be argued that the duty of professional secrecy covers all information provided by the client, irrespective of whether such information is oral or written. 6. In addition, Article 51 of the Code of Ethics stipulates that the lawyer shall protect as confidential everything that has been entrusted to him/her by the client or everything that the lawyer has learnt on behalf of the client. The lawyer him-/ herself must also assess carefully what information the client would like to keep confidential. The duty of professional secrecy also applies to the content of the lawyer’s files; moreover, such duty applies even after the expiration of the power of attorney and after the destruction of the archive of closed files. Furthermore, the lawyer is bound by the duty of professional secrecy to refuse to disclose information on whether an individual asked him/her for advice (Art. 52 of the Code of Ethics). 7. A few years ago, there was a discussion going on whether breach of the duty of professional secrecy with respect to a document may only be committed through the presentation of an original document or also through the presentation of a copy. The discussion started when the disciplinary prosecutor of the Slovenian Bar Association allegedly dismissed the client’s application for initiation of disciplinary proceedings against his/her lawyer with reference to breach of the duty of professional secrecy. The disciplinary prosecutor allegedly held that the application was not founded since the lawyer submitted merely a copy of the document containing the professional secret and not the original document. It ensues from theory that such a precedent could be extremely dangerous, since the constitutional right to privacy (including the duty of professional secrecy) would be reduced to mere protection of the document, rather than of the information such document contains.24 ˇ 24 Nevenka Sorli, ‘Izdaja poklicne skrivnosti samo z izvirnikom listine?’, Odvetnik 8 (October 2000), 24.

499

Professional secrecy of lawyers in Europe

8. With respect to breach of the duty of professional secrecy in terms of a criminal offence or in connection with the criminal law, the question arises whether the professional secret also covers information relating to a particular criminal offence, its victim or the offender. If the professional secret is very narrowly defined only as information of a personal nature that is not known to a wider circle of people and there exists some justified reason for keeping it confidential, then information on the criminal offence could not be labelled as being covered by professional secrecy. However, it could be understood that, in terms of the Slovenian theory of criminal law, information on the offender and on the victim, along with all other relevant facts concerning the committed criminal offence, are kept confidential as professional secrets.25

C

Persons subject to the duty of professional secrecy 9. The duty of professional secrecy is primarily attributed to lawyers, as regulated by the applicable legislation. Article 6 of the Attorneys Act expands the duty of professional secrecy to all persons employed in the law firm. 10. The duty of professional secrecy shall also be respected by the court. The procedural Acts26 envisage when the lawyer as a witness may refuse to testify.27 In such case the court shall respect the lawyer’s justified refusal. The Criminal Procedure Act, in Article 237, expressly stipulates that if a privileged witness testifies irrespective of his/her right to refuse testimony and (i) he/she has not been instructed on the right to refuse the testimony, or (ii) he/she has not expressly waived the right of refusal, or (iii) the instruction and the waiver have not been noted in the minutes on the hearing, then the court may not found its judgment on the testimony of such witness. If the instructions and the waiver are not expressly evident from the minutes, then such testimony may not be accepted as evidence.28 Moreover, in criminal proceedings, a judgment founded on evidence that was obtained by infringement of constitutional human rights and fundamental freedoms constitutes an essential breach of procedure and, in turn, a reason for an appeal against the judgment of the court (point 8 of paragraph 1 of Art. 371 Criminal Procedure Act).

25 Damjan Koroˇsec, ‘Poklicna Skrivnost v slovenski kazenski zakonodaji: med prepovedjo in dolˇznostjo’, Socialna varnost 3 (1997), 195. 26 Criminal Procedure Act (Official Gazette of the RS, no 63/1994, as amended), Administrative Procedure Act (Official Gazette of the RS, no 80/1999, as amended), Civil Procedure Act (Official Gazette of the RS, no 26/1999, as amended). 27 This so-called issue of a ‘privileged witness’ will be discussed in greater detail in no 44 of this chapter. 28 Decision by the Higher Court in Celje, no I PRp 110/2010 of 21 April 2010.

500

Slovenia

11. Pursuant to the Civil Procedure Act, the procedure always involves a severe breach whenever the court fails to apply a particular provision of the respective Act or the provision has been applied incorrectly, which may in turn affect the legality and the correctness of the judgment. If the court does not respect the right to refuse testimony, the legality of the judgment based on such testimony may thus be endangered.

D

Limitations and derogations 12. The Attorneys Act does not provide for any exemptions from the duty of professional secrecy. Nevertheless the Code of Ethics (Art. 53) envisages certain situations in which the lawyer may be released from the duty of professional secrecy: (i) the client releases the lawyer from the duty of professional secrecy, (ii) the disclosure of the confidential information is evidently beneficial to the client or (iii) the disclosure is necessary for the protection of the lawyer’s important personal interests. However, the lawyer may not disclose confidential information (even if the disclosure benefited the client) if the client expressly prohibits the disclosure, unless the disclosure is necessary due to some extraordinary circumstances in the client’s personal interest. 13. Breach of the duty of professional secrecy may also constitute a criminal offence (Art. 142 Criminal Code) but – as explained in no 3 of this chapter – the offender will not be sanctioned if (i) the offender has breached the duty for the general benefit; (ii) the offender has breached the duty in the justified interest of the public; (iii) the offender has breached the duty for the benefit of some other person, provided that the benefit of such other person prevails over confidentiality; or (iv) the law envisages release from the duty of professional secrecy. 14. The Criminal Procedure Act envisages in Article 236 that the lawyer may be released from the duty of professional secrecy (i) in criminal proceedings against a defendant prosecuted for a criminal offence against the inviolability of sexual integrity, parental neglect and maltreatment or people-trafficking, provided that the victim is a minor; (ii) in accordance with conditions stipulated by law; or (iii) if there exists a duty to communicate the confidential information to the competent authorities. 15. The lawyer’s privilege to refuse testimony in civil procedure is limited; the lawyer may not deny testimony if the disclosure of certain facts is necessary for the public benefit or for the benefit of some other person, provided that such benefit prevails over confidentiality. On the other hand, the Administrative Procedure Act does not make such a provision, but merely envisages that the witness may testify on facts covered by 501

Professional secrecy of lawyers in Europe

the duty of professional secrecy only after the competent authority has released such witness from its duty of professional secrecy. 16. The Prevention of Money Laundering and Terrorist Financing Act29 provides in Article 49 for the obligation of lawyers and law firms to inform the Office of the Republic of Slovenia for Money Laundering Prevention (for the purpose of this paragraph ‘the Office’) of any transaction that they suspect to be related to money laundering or financing of terrorism. With respect to such information, data and documentation, the lawyer is released from the duty of professional secrecy. In accordance with Article 77 of the Prevention of Money Laundering and Terrorist Financing Act, the lawyer is not liable for damages suffered by clients or third persons, and is not criminally or disciplinarily liable for a breach of his/her duty of professional secrecy if he/she informs the Office pursuant to his/her duties under the respective Act. 17. It is worth noting that the publicly available judicial practice has not established any additional exemptions from the duty of professional secrecy, other than those already stipulated by the relevant legislation as described above.

E

Law firms 18. It is generally accepted that lawyers working in a law firm may share privileged information to the extent necessary for their work. An attorney may be substituted before the court by a senior associate or an associate employed with him/her or his/her law firm (for details see note 2). The power of attorney may also be granted to a law firm. The attorney–client privilege applies to all information disclosed by the client to the law firm and shall be respected by all employees in the law firm. Slovenian legislation does not foresee the creation of Chinese walls within law firms, although they are sometimes used in practice.

F

Legal assistants and staff 19. Article 6 of the Attorneys Act expands the duty of professional secrecy to all persons employed in a law firm. The ratio legis of such provision is the fact that persons employed in a law firm often come across professional secrets due to the nature of their work. If the duty of professional secrecy were not imposed on the staff of such law firms, the constitutional right to privacy would not be efficiently protected and the duty of professional secrecy might be circumvented. 29 Official Gazette of the RS, no 60/2007, as amended.

502

Slovenia

G

External service providers 20. Law firms in Slovenia sometimes outsource certain services to other persons (e.g. translators, auditors, notaries), but very rarely to outside lawyers. If services are outsourced to an outside lawyer, no difficulty should apply, since he/she is also bound by professional secrecy in accordance with Article 6 of the Attorneys Act. If services are outsourced to other persons, the lawyer should ensure that the duty of professional secrecy continues to apply. There is, however, no statutory provision which would specifically determine the obligation of professional secrecy of other persons not employed with a law firm, and there is also no relevant case law that would give guidance on how to act in such events. However, certain professions, such as authorised auditors, notaries and tax consultants, have the obligation of professional secrecy towards their clients in accordance with the laws regulating their respective professions and their respective professional codes of ethics.

H

Multidisciplinary associations 21. A lawyer is entitled to co-operate with other professionals (non-lawyers) on specific matters, especially if such matters require expert knowledge that a lawyer cannot provide. Such co-operation is only permissible upon the client’s consent. In the event of such co-operation, the lawyer will have to share certain privileged information with the associating professional, but only to the extent of the client’s consent and interest. The lawyer shall also ensure that the privileged information will not be disclosed by the associating professional. There is, however, no statutory provision which would specifically determine the obligation of professional secrecy of such associating professionals, and there is also no relevant case law that would give guidance on how to act in such events.

2

History 22. The duty of professional secrecy for lawyers is not a new concept in Slovenia. It was first introduced in the Slovenian territory in the Lawyers Order (Odvetniˇski red, no 38, of the State Code of 15 July 1868), a state law adopted on 7 July 1868 (by both chambers of the national assembly) which entered into force on 1 January 1869. The territory of the Republic of Slovenia was at that time part of the Austro-Hungarian Empire. According to the Lawyers Order, lawyers were obliged to maintain the confidentiality of information obtained from their clients. The Advocacy Act for the Kingdom of Slovenes, Croats and Serbs (Zakon o advokatih za Kraljevino SHS)30 was adopted in 1929 and also contained 30 Sluˇzbene novine, no 65/XXVII, and Uradni list, no 131/32.

503

Professional secrecy of lawyers in Europe

the concept of professional secrecy. An important exemption was, however, introduced by the Attorneys Act in 1946 (Zakon o odvetniˇstvu):31 the obligation to keep professional secrets still applied; nevertheless, the minister of justice could release a lawyer from this obligation for the benefit of the state or the protection of legality. With the Attorneys Act of 1957 (Zakon o odvetniˇstvu),32 the attorney–client privilege was given a new dimension: a lawyer could no longer be examined as a witness in criminal procedure with respect to information he/she obtained as a client’s lawyer. In other procedures, the lawyer had the possibility of refusing to testify. The General Act on Advocacy and Other Legal Aid (Op´ci zakon o advokaturi i drugoj pravnoj pomo´ci)33 did not bring anything new with respect to professional secrecy, and neither did the first Slovenian Attorneys Act (Zakon o odvetniˇstvu).34 The currently applicable Attorneys Act was adopted in 1993, after the Republic of Slovenia had become independent in 1991, and it has been amended several times since its adoption. The concept of professional secrecy remained, however, generally the same, with the following exceptions: the concept of privileged witnesses was transferred to the procedural Acts, and the duty of professional secrecy was expanded to all employees of law firms.

3

Supervision

A

The Bar Association 23. The Attorneys Act stipulates that the lawyer is an independent and autonomous professional who may perform his/her profession individually or in a law firm. The lawyer can generally freely determine whether or not he/she will represent the client (Art. 5 Attorneys Act); lawyers should, however, be aware that the role of lawyers within society obliges them to ensure legal assistance (Art. 37 Code of Ethics).35 Lawyers shall refuse the representation of a client in the event of a conflict of interest.36 Within the scope of the law and his/her power of attorney, the lawyer may use any legal measure which he/she believes to be beneficial to his/her client. When representing the client, 31 Official Gazette of the FLRJ, no 102/16. 32 Official Gazette of the FLRJ, no 25/57. 33 Official Gazette of the SFRJ, no 15/70. 34 Official Gazette of the SRS, no 29/72. 35 Moreover, the Code of Ethics further stipulates that the client’s inability to make appropriate payment for the lawyer’s work shall not be a reason for refusal of legal help. 36 A conflict of interest may arise in the following situations: (i) if the lawyer or his/her colleague in the same law firm previously represented the counterparty; (ii) if the client has been represented by another lawyer with whom the respective lawyer has been employed as a lawyer, senior associate or associate; (iii) if in the same matter the lawyer has been acting as a judge, state prosecutor, authorised administrator of the competent authority for internal matters or authorised administrator in an administrative procedure; and (iv) in other cases stipulated by law.

504

Slovenia

the lawyer is obliged to perform his/her activities with due care, honour and conscience, as well as in accordance with the rules of professional ethics. Lawyers are subject to the authority of the Slovenian Bar Association, which adopts a Code of Ethics and supervises lawyers’ compliance with the Code of Ethics through the disciplinary procedure carried out by the governing bodies of the Slovenian Bar Association (i.e. the disciplinary prosecutor, the disciplinary commissions and the Disciplinary Court). The Slovenian Bar Association defines the disciplinary liability of lawyers and determines the acts that constitute an infringement of the lawyer’s duties, as well as the acts that constitute an infringement of the duty to perform his/her professional activity conscientiously. The Slovenian Bar Association may not instruct the lawyer how to defend the client or how to perform the legal profession in general; however, it may sanction the lawyer if he/she infringes the provisions of the Attorneys Act or if he/she breaches the Code of Ethics. 24. In disciplinary cases against lawyers, the decision is adopted by a disciplinary commission, unless such decision falls under the competence of the Disciplinary Court. The Disciplinary Court decides instead of a disciplinary commission if the disciplinary procedure is initiated for a breach of the duty subject to a sanction of a prohibition to perform the legal profession. The disciplinary prosecutor is in charge of the prosecution. The senate of the disciplinary commission of the first and of the second instances consists of the president and two members. The president and one member of each senate of the disciplinary commission are elected by the General Meeting of the Slovenian Bar Association, while the third member is selected from the list of five members appointed for each disciplinary commission by the minister of justice.37 The Disciplinary Court decides in a senate of five members, including two judges38 of the Supreme Court of the Republic of Slovenia and three lawyers.39 The president of the senate is always a Supreme Court justice. An appeal against the decision by the Disciplinary Court may be filed with the Supreme Court of the Republic of Slovenia. 25. The by-laws of the Slovenian Bar Association40 prescribe the level of fines applicable to the infringing lawyer in disciplinary procedures, as well as the rules of procedure before the disciplinary commissions. 37 The members must fulfil certain conditions, obtain a university degree, pass a bar examination and have at least three years of relevant experience in the legal profession after passing the bar examination. 38 The president and a member judge of the senate are determined in advance by the yearly schedule of the Supreme Court of the Republic of Slovenia. 39 The lawyers, members of the senate, are elected by the Slovenian Bar Association for a period of two years. 40 Official Gazette of the RS, no 15/94, as amended.

505

Professional secrecy of lawyers in Europe

B

The Ministry of Justice and the Market Inspectorate 26. The Ministry of Justice carries out control over the legal profession as a regulated profession in accordance with the Public Administration Act,41 indirectly through preparation of legislative proposals with respect to the legal profession, including the Attorneys Act. 27. The Attorneys Act envisages certain minor offences that are sanctioned by a fine. The Market Inspectorate of the Republic of Slovenia imposes such fine in accordance with the Attorneys Act (see no 47 of this chapter for more details).

C

The courts 28. On practising his/her profession, the lawyer shall abide by the law as a whole and not merely by any special applicable legislation expressly regulating the legal profession. In this respect no special rules apply to lawyers. Accordingly, civil courts have jurisdiction to hear a claim for professional liability brought against an individual lawyer by his/her client. Criminal courts have jurisdiction over an individual lawyer if the latter commits a criminal offence, also if a criminal procedure is instituted on the basis of a private action by an injured person for a criminal offence involving breach of the duty of professional secrecy.

4

Sanctions

A

Proceedings and sanctions

a

Disciplinary procedure

29. The lawyer must perform his/her profession conscientiously and is responsible for any breach of his/her duties committed during performance of the profession. The by-laws of the Slovenian Bar Association determine which acts constitute (i) a breach of duties during the performance of the legal profession, and (ii) a breach of conscientious performance of tasks. Breaches of duty may be serious or minor and are determined by the by-laws of the Slovenian Bar Association. Breach of the duty of professional secrecy is determined as a serious breach of duty (Art. 77(b) by-laws of the Slovenian Bar Association). The Attorneys Act generally regulates disciplinary procedures (Arts. 59 to 71(a)), while the by-laws of the Slovenian Bar Association regulate the competencies of each of the governing bodies of the Slovenian Bar Association (i.e. the disciplinary prosecutor, the disciplinary commissions and the Disciplinary Court) in greater detail (Arts. 77 to 92(a)). 41 Official Gazette of the RS, no 52/2002, as amended.

506

Slovenia

The disciplinary prosecutor requests initiation of the disciplinary procedure on the basis of information communicated by the injured party or the human rights ombudsman, or on the basis of the information acquired otherwise, provided that it is possible to make reasonable conclusions on the basis of the facts and evidences that the lawyer has breached his/her duty. The procedure shall be initiated within thirty days of receipt of the information on the breach. The disciplinary prosecutor shall define the breach of the duty, the facts and the evidences in the request for initiation of the disciplinary procedure. The disciplinary prosecutor informs the home state authority on the request for initiation of the disciplinary procedure against a foreign lawyer who is registered in the register of the Slovenian Bar Association. The disciplinary authorities of Slovenia shall enable the foreign competent authorities to participate in the procedure by giving their arguments for the benefit of the foreign lawyer. The disciplinary penalties and temporary measures against the foreign lawyer shall be valid only in the Republic of Slovenia. The disciplinary prosecutor may also initiate the disciplinary procedure on the request of the president of the Supreme Court of the Republic of Slovenia or of the minister of justice, within thirty days of the receipt of the request. If the disciplinary prosecutor withdraws from the prosecution, he/she must notify the president of the Supreme Court of the Republic of Slovenia or the minister of justice of the withdrawal, within eight days. The president of the Supreme Court of the Republic of Slovenia or the minister of justice may then continue the prosecution within eight days of receipt of the information on the withdrawal. Upon receipt of the disciplinary prosecutor’s request, the disciplinary commission of the first instance forwards the request to the disciplinary defendant. The latter may respond to the statements in the request within fifteen days. Upon the defendant’s response or after the expiration of the deadline for the response, the disciplinary commission of the first instance orders the preliminary investigation or schedules a hearing to take place within thirty days. The invitation to the hearing shall be delivered to the lawyer at least fifteen days prior to the date of the hearing. A member of the disciplinary commission of the first instance carries out the preliminary investigation. His/her findings are communicated to the disciplinary prosecutor within eight days of termination of the preliminary investigation, upon which the disciplinary prosecutor may amend or modify his/her request for initiation of the disciplinary procedure. The amended and/or modified request is sent to the disciplinary defendant together with the invitation to the oral hearing. The oral hearing may be carried out in the absence of the disciplinary defendant, provided that he/she was (i) duly invited to the hearing and did not justify his/her absence or (ii) he/she rather communicated to the senate that he/she would not be present and that his/her defence in the response or 507

Professional secrecy of lawyers in Europe

the preliminary investigation should be used. The senate may also decide to use the minutes on the witness examinations before the court, the Slovenian Bar Association and other state authorities, and expert opinions and other documentation. The disciplinary commission of the first instance takes its decision after completion of the hearing. The oral hearing is not public, unless the disciplinary prosecutor expressly requests publicity of the hearing. The decision shall be made in writing within thirty days of the oral hearing. The decision may be appealed against by the disciplinary defendant or by the disciplinary prosecutor within fifteen days of receipt of the decision. If the lawyer was found innocent, the president of the Supreme Court of the Republic of Slovenia or the minister of justice may also file an appeal. The decision on the appeal shall be adopted by the disciplinary commission of second instance without a hearing and within sixty days. The final decision is delivered to the Ministry of Justice and to the Slovenian Bar Association, which enters the disciplinary measure in the record of enforced disciplinary measures. The record is confidential and permanent. The final decision is also communicated to the applicant (client, ombudsman etc.), notifying the breach, and to regional assemblies for their records, but is not otherwise made public. The completed disciplinary files are kept in the archives for ten years. b

Disciplinary sanctions

30. The following penalties may be imposed on the lawyer for breach of his/her duty in accordance with the Attorneys Act: (i) admonition, (ii) reprimand, (iii) fine and (iv) prohibition of performing the legal profession or working in a law firm. Disciplinary measures are detailed in the by-laws of the Slovenian Bar Association (Arts. 81–3). 31. A fine may be imposed with reference to the scale determined by the bylaws of the Slovenian Bar Association. The current scale ranges from €459 to €4,590. On imposing the fine there shall also be determined the respective payment deadline, which shall not be shorter than fifteen days or longer than three months. The funds are intended for the vocational training of lawyers and senior associates. When determining the amount of the fine it is necessary to consider all circumstances that may affect the type and the amount of the fine, in particular the gravity of the infringement and its consequences, the degree of responsibility, and previous work and behaviour, as well as preceding disciplinary penalties, if any. In addition, the financial situation of the defendant shall also be taken into account when determining the amount of the fine. 508

Slovenia

32. The disciplinary action of waiving the right to perform the legal profession or to work in a law firm may only be imposed if (i) the breach of the professional duty has been so severe in nature that it is possible to conclude that the lawyer is not sufficiently trustworthy for continuous performance of the legal profession, or (ii) the lawyer repeats a breach that was sanctioned by a fine or reprimand once or several times and it is reasonable to conclude from his/her behaviour that he/she will not perform the legal profession conscientiously and diligently. The respective disciplinary action may be imposed for a period of up to five years. If the disciplinary procedure is initiated for the breach of a duty that may be subject to the respective penalties, the disciplinary authority may temporarily prohibit performance of the legal profession by the lawyer against whom the disciplinary procedure has been initiated. The temporary prohibition may be in force until the completion of the disciplinary procedure. 33. The imposition of a fine and the waiver of the right to perform the legal profession may be suspended for a period from six months to one year, provided that the prosecuted lawyer does not commit the same or an even more serious breach of his/her duty. A disciplinary penalty may also be suspended on the condition that the accused has fulfilled certain disciplinary obligations. 34. Breach of the lawyer’s duty is subject to a statute of limitations of two years. This means that it is no longer possible to initiate the disciplinary procedure after the expiration of the said period. If the breach of the duty constitutes a criminal offence, then enforcement is no longer possible after the expiry of six years (Art. 90 Criminal Code). Enforcement of the disciplinary action is no longer possible after a period of six months from the finality of the decision. The limitation period is interrupted by any report of a breach of the duty to the disciplinary prosecutor or by any act performed before the disciplinary commission or the Disciplinary Court. The limitation does not run during the suspension of the legal profession in accordance with the law. c

Criminal proceedings and sanctions

35. Unjustified breach of professional secrecy constitutes a criminal offence in accordance with the Criminal Code (Art. 142). Breach of the duty of professional secrecy is sanctioned by imprisonment of up to one year or by a criminal fine. The court may also sentence the offender conditionally, or it may impose a judicial warning on the offender,42 provided that additional conditions envisaged by the Criminal Code are fulfilled. Since a legal entity (e.g. a law firm) may bear criminal liability for breach of professional duty in accordance with Article 25 of the Liability of Legal 42 Deisinger, Kazenski zakonik s komentarjem, 145.

509

Professional secrecy of lawyers in Europe

Persons for Criminal Offences Act, a fine of up to €1,000,000, or alternatively up to a maximum of one hundred times the amount of the damage caused or of the amount illegally obtained through the criminal offence, may be imposed on such legal entity under the Criminal Code and under the Criminal Liability of Legal Entities Act. Appeals against decisions of the Criminal Court of first instance, issued in relation to breach of the duty of professional secrecy, may be filed to the competent higher court pursuant to the provisions of the Criminal Procedure Act. A subsequent appeal (on legal grounds only) to the Supreme Court of the Republic of Slovenia is also possible. Breach of the duty of professional secrecy is not sanctioned if the person breached the duty (i) for general benefit; (ii) for the justified interest of the public; (iii) for the benefit of another person, provided that the benefit of the other person prevails over confidentiality; or (iv) whenever the law stipulates the discharge of the duty of professional secrecy. d

Civil proceedings and damages

36. Breach of the duty of professional secrecy may cause damage either to the client or to a third person. As the applicable legislation does not provide for any specific regulation, there apply general rules on the liability for damage. In Slovenian tort law, the prevailing judicial practice takes the position that the liability of the lawyer is contractual, provided that the requirements for the contractual liability are fulfilled in accordance with the Code of Obligations.43 The second option is that the lawyer’s liability for damage is not contractual, but tortious. The latter means that both approaches shall be considered when assessing the lawyer’s liability for damage, although in practice the damage will be contractual in most cases. In accordance with the Code of Obligations (Art. 131), any person who has inflicted damage on some other person shall be obliged to reimburse it, unless it is proven that the damage was incurred without any tort of the former. In general, the damage may involve reduced assets (ordinary damage) or prevented increase of assets (lost profits).44 The liability for damage can be imposed in the event of the following cumulatively proven elements of the liability for damage: (i) wrongful act, (ii) liability, (iii) suffered damage and (iv) causation. The burden of proof is on the person alleging the damages. The liability is presumed, hence the burden of proof is reversed in this respect: the one who inflicted the damage should prove that the damage was caused without his/her culpability. 43 Decision by the Supreme Court of the Republic of Slovenia, no II Ips 290/99, of 19 January 2000 (Official Gazette of the RS, no 83/2001, as amended). 44 Article 132 of the Code of Obligations.

510

Slovenia

The main issue that occurs with respect to the lawyer’s liability for damage involves the standard of the required diligence expected from the lawyer. The professional diligence (the diligence of a good professional) is specified in Article 6 of the Code of Obligations. The criterion for assessment whether a professional is performing his/her activity with due professional diligence is based on the typical and normal performance of the activity of an average professional in the same profession.45 However, it is necessary to consider certain special characteristics of the legal profession, since the practice of the legal profession is of certain importance for society and accordingly requires expert knowledge and competence that makes the public trust the value of the professional services provided by lawyers.46 When assessing the professional diligence of a lawyer, the type of service, the factual grounding and the requirements of the legal profession shall be taken into account.47 The lawyer shall always perform his/her activity with diligence, in accordance with ethical requirements, and abiding by the rules of the legal profession, and he/she shall be liable for damages if professional diligence has not been respected.

B

Relationship between criminal sanctions and disciplinary sanctions 37. No case law exists so far concerning the relationship between criminal sanctions and disciplinary sanctions pertaining to lawyers. Certain practice on the relationship between criminal sanctions (and procedure) and disciplinary sanctions (and procedure) has, however, been developed in the area of employment law. It is likely that the employment law principles in this respect would also apply to the disciplinary proceedings against lawyers. Disciplinary and criminal penalties are generally imposed independently and have no effect on each other. The disciplinary authorities decide whether the disciplinary breach has been committed and impose the disciplinary penalties; the criminal court is solely competent to establish whether a criminal offence has been committed and to impose the penalty on the offender. The disciplinary authority does not decide whether a criminal offence has been committed and the disciplinary procedure is separate from the criminal procedure. The two separate procedures only have in common the forbidden act and the factual

45 N. Plavˇsak et al., Obligacijski zakonik s komentarjem, prva knjiga, Ljubljana: Zaloˇzba GV, 2003, 146. 46 Horvat Bogomir, ‘Odˇskodninska odgovornost odvetnikov in notarjev’, Podjetje in delo 7 (2004), 1167. 47 Horvat Bogomir, ‘Odˇskodninska odgovornost odvetnikov in notarjev’.

511

Professional secrecy of lawyers in Europe

situation.48 Furthermore, as described in no 34 of this chapter, the statute of limitations is prolonged if the breach of the duty constitutes a criminal offence. Any exemption in criminal proceedings does not mean that no violations of discipline shall be found in the disciplinary procedure, because the criminal offence is not equivalent to a disciplinary violation. The disciplinary procedure and the criminal procedure differ in both formal and substantive aspects.49 The criminal acquittal does not affect disciplinary liability, while a judgment of conviction is not a necessary condition for the imposition of a disciplinary penalty.50

5

Duty to provide information to the authorities

A

Money laundering and terrorism 38. In accordance with the Prevention of Money Laundering and Terrorist Financing Act, certain institutions are obliged to inform the Office of the Republic of Slovenia for Money Laundering Prevention (for the purpose of this section, ‘the Office’) of any transaction that they suspect to be related to money laundering or financing of terrorism (Art. 49 Prevention of Money Laundering and Terrorist Financing Act). Such obligation is also imposed on the lawyer or law firm whom the client asks for advice on money laundering or financing terrorism: in such a case, the lawyer shall provide information to the Office within three days. The obligation also applies to lawyers and law firms when they assist the client or make the following transactions on behalf of the client: (i) the sale and purchase of real estate or a company; (ii) the management of the client’s money, securities or other assets; (iii) the opening or management of bank accounts, deposits, saving accounts or securities accounts; (iv) the collection of funds necessary for the establishment, performance or management of a company; or (v) the establishment, performance or management of an institution, fund, company or other similar organisational structure. The duty to inform has to be complied with as well, even if the transaction is only intended, irrespective of whether or not it was later carried out. The Office may also request the data, the information and the documentation from the lawyer whenever the Office considers that there are grounds to suspect money laundering or terrorist financing in connection with a transaction or a particular person, or when such person has been engaged in the transactions or the business of a 48 Decision by the Supreme Court of the Republic of Slovenia, no VIII Ips 4/2004, of 14 September 2004; Decision by the Supreme Court of the Republic of Slovenia, no VIII Ips 517/2007, of 12 January 2009. 49 Decision by the Supreme Court of the Republic of Slovenia, no VIII Ips 264/2008, of 30 November 2009. 50 Decision by the Supreme Court of the Republic of Slovenia, no VIII Ips 264/2006, of 11 March 2008.

512

Slovenia

person in respect of whom there are grounds to suspect money laundering or terrorist financing. The Prevention of Money Laundering and Terrorist Financing Act nevertheless provides for certain exemptions from the duty to provide information to the Office. The obligation to inform shall not apply to the lawyer or law firm with respect to data obtained from or about the client in the course of establishing the client’s legal position or when acting as the client’s legal representative in a judicial proceeding, including advice on instituting or avoiding such proceeding, irrespective of whether such data are obtained before, during or after such proceeding. If the lawyer or a law firm does not communicate the data, the information and the documentation on the basis of a request by the Office, the lawyer or law firm shall immediately, and not later than within fifteen days of receipt of the request, inform the Office in writing of the reasons for non-compliance with the Office’s request. Lawyers or law firms shall not be obliged to report to the Office cash transactions, unless reasons for suspicion of money laundering or terrorist financing exist in connection with the transaction or the client. The lawyer is not liable for damage suffered by clients or third parties whenever the lawyer, in accordance with the Prevention of Money Laundering and Terrorist Financing Act and implementing regulations adopted on the basis of the respective Act, (i) communicates to the Office the information, the data and the documentation about his/her clients; (ii) acquires and processes the information, the data and the documentation about his/her clients; (iii) enforces the order of the Office on temporary cessation of the transaction and the instructions given with respect to the order; or (iv) enforces the Office’s demand concerning current control of the client’s financial activity. Moreover, the lawyer shall not be criminally or disciplinarily liable for breach of the duty of professional secrecy if the lawyer: 1. communicates to the Office the information, the data and the documentation about his/her clients in accordance with the respective Act and implementing regulations adopted on the basis of the respective Act; or 2. acquires and processes the information, the data and the documentation about his/her clients in accordance with the respective Act, for the purpose of examination of the clients and the transactions associated with the suspicion of money laundering and terrorist financing.

B

Lobbying 39. The Integrity and Prevention of Corruption Act does not expressly prevent a lawyer from being registered as a lobbyist.51 According to some opinions 51 Official Gazette of the RS, no 45/2010, as amended.

513

Professional secrecy of lawyers in Europe

expressed in a recent debate relating to this topic, lawyers in Slovenia may carry out lobbying activities.52 Nevertheless, the Slovenian Bar Association seems to have prepared a draft document opining that a lawyer may not be registered as a lobbyist, since such registration would be harmful to the reputation of the legal profession, and it is also unclear how lawyers would charge for their lobbying services.53 A lawyer registered as a lobbyist in Slovenia would have to comply with the duty of informing the Corruption Prevention Commission periodically on his/her activities in accordance with Article 63 of the Integrity and Prevention of Corruption Act. Such information to the Corruption Prevention Commission must include the following information: (i) the tax number of the lobbyist, (ii) information on the organisations on behalf of which he/she is lobbying, (iii) the amount of payment received from each such organisation for each matter he/she is lobbying for, (iv) an indication of the purpose and objective for which he/she is lobbying for the respective organisation, (v) an indication of the state authorities and other bodies before which he/she is lobbying, (vi) an indication of the methods and ways of lobbying on an individual matter and (vii) an indication of the type and amounts of donations to political parties and organisations. We are of the opinion that a Slovenian lawyer could not provide the requested information without violating his/her duty of professional secrecy unless he/she first obtained the client’s express consent for the provision of the requested information.

6

Treatment of the lawyer’s documents and correspondence in the context of judicial investigations 40. The privacy of correspondence is guaranteed by the Constitution. Pursuant to Article 37 of the Constitution,54 only a law may prescribe that the protection of the privacy of correspondence and other means of communication and the inviolability of personal privacy may be suspended for a limited period of time on the basis of a court order, provided that this is necessary for the initiation or course of criminal proceedings or for reasons of national security. Protected means of communication include also telephone conversations, fax, e-mails and other forms of communication as already stipulated by the ECtHR. The protection of privacy of communication further expands to the data connected to the communications, such as traffic and location data. The privacy of

52 Mag. Gregor Velkaverh, ‘Odvetnik v registru lobistov?’, Odvetnik (October 2011), 24; and Simona Stanter, ‘Odvetniki – lobisti’, Odvetnik (December 2011), 41. 53 The existence of this draft document was mentioned by Velkaverh in ‘Odvetnik v registru lobistov?’. 54 Protection of privacy of correspondence and other means of communication.

514

Slovenia

correspondence and other means of communication is also expressly ensured to prisoners.55 Pursuant to the applicable legislation,56 interception of communications and invasion of the content of correspondence are allowed only to certain state bodies (the police and the Slovenian Intelligence Agency) on the basis of a court order and under other very restricted conditions. Other interceptions and invasions are considered a criminal offence in accordance with the Criminal Code. Invasion of privacy of communications is not permitted for the purpose of procedures not specifically allowed in the Constitution (i.e. other than in criminal proceedings or for reasons of national security).57 41. There are no specific provisions in the procedural Acts governing investigations that would envisage the treatment of confidential documents prepared by a lawyer and possibly protected by professional secrecy. The only Act that includes a specific provision with respect to privileged communication is the Prevention of the Restriction of Competition Act (the Competition Act),58 which specifically protects documents which may be subject to professional secrecy with respect to investigation conducted by the Competition Protection Office relating to breach of anti-trust law. The Competition Act stipulates in Article 32 that an inspection shall exclude letters, notifications and other means of communication between the undertaking against which the procedure has been initiated and its lawyer, to the extent such communications pertain to the procedure in question (privileged communication). If an undertaking or its lawyer refuses to allow access to information, claiming it to be privileged communication, an authorised person of the Competition Protection Office shall verify whether the claim is evidently unfounded. If the communication is not deemed to be privileged, the authorised person shall seal the document (or its copy) in an envelope signed by an authorised person of the undertaking or its lawyer. The justification of claiming privileged communication shall be decided by the Administrative Court within fifteen days of the date after the request has been filed by the Competition Protection Office. The Office shall attach the sealed envelope to the request. If the Administrative Court decides that the communication in question does

55 The third paragraph of Article 71 of the Enforcement of Criminal Sanctions Act (Official Gazette of the RS, no 22/2000, as amended). The correspondence of prisoners may only be controlled in case of suspicion of intake and outtake of items not allowed to be possessed by prisoners. 56 Criminal Procedure Act, Electronic Communications Act (Official Gazette of the RS, no 43/2004, as amended) and Slovene Intelligence and Security Agency Act (Official Gazette of the RS, no 23/1999, as amended; hereinafter ‘the Security Agency Act’). ˇ 57 Komentar Ustave Republike Slovenije, Dopolnitev – A, prva knjiga, Urednik Lovro Sturm, Fakulteta za drˇzavne in evropske sˇtudije, Ljubljana, 2011, 547. 58 Official Gazette of the RS, no 36/2008, as amended.

515

Professional secrecy of lawyers in Europe

not constitute privileged communication, it shall send the documents to the Competition Protection Office. If it decides that it is indeed privileged communication, it shall send them to the undertaking or its lawyer. There is no legal remedy against the decision of the Administrative Court. Treatment of the lawyer’s documents and correspondence in the context of a search of a lawyer’s office will be further detailed in no 42 of this chapter.

7

Search of a lawyer’s office 42. The search of a lawyer’s office is allowed on the basis of a warrant issued by the competent court and only with respect to the files and items which are expressly determined in the warrant (Art. 8 Attorneys Act). The confidentiality of other files and items shall not be breached by the search. The representative of the Slovenian Bar Association shall be present during the search of the lawyer’s office. A representative of the Bar Association is obliged to be present during the search of a lawyer’s office to ensure that the secrecy of documents and items that are not subject to the search is respected. The lawyer’s departure from the premises of the search may result in the search being carried out without supervision by a lawyer. A representative of the Bar Association has the right to assess whether the search warrant was drawn up in accordance with the law, but does not have the right to refuse to be present during the search on the basis of his/her own assessment regarding the (in)completeness of the warrant.59 When a search is conducted on the premises of a lawyer’s office, the scope of the search specified in the warrant must be strictly limited to the files and to the items which, in order to provide evidentiary material relating to a particular criminal offence, make the search of the lawyer’s office admissible.60 The reasoning of the warrant must not lead one to conclude that all the documentation in the lawyer’s office should be examined or that one should search the lawyer’s office for whatever one wishes to find.61 The warrant must include: data on the person whose premises are to be searched; the reasons leading to the justified suspicion that a criminal offence has been committed if a search is conducted before the initiation of the judicial investigation; an indication of the person, the traces or the items subject to the search; an indication of the circumstances that demonstrate the likelihood that the defendant will be apprehended or that the traces and the objects that are important for the criminal proceedings will 59 Decision by the Constitutional Court of the Republic of Slovenia, no Up-2530/06, of 15 April 2010 (Official Gazette of the RS, no 42/2010). 60 Decision by the Constitutional Court of the Republic of Slovenia, no Up-2530/06, of 15 April 2010 (Official Gazette of the RS, no 42/2010). 61 Decision by the Constitutional Court of the Republic of Slovenia, no Up-2530/06, of 15 April 2010 (Official Gazette of the RS, no 42/2010).

516

Slovenia

be revealed; and a specific indication of the premises where the search is to be conducted.62 The files and the items that may be searched do not have to be determined in the operative part of the warrant, but can be determined in the respective reasoning.63 According to the Slovenian Constitutional Court, it would indeed be clearer and more correct if the files and the items with respect to which the search of the lawyer’s office had been ordered were stated in the operative part; however, this is irrelevant from the viewpoint of the protection of the privacy of the persons who are in a confidential relationship with the lawyer: what is essential is that the subject of the search is described in sufficient detail.64 Pursuant to the Slovenian legislation, the files and the items are to be searched by the police, who also decide what they will seize and when this will happen (while conducting the search). Pursuant to a recent decision of the Slovenian Constitutional Court, nobody can effectively object to such approach in a way that would prevent the seizure, which would be in the particular interest of clients who are not associated with the search of the lawyer’s office.65 There seems, under current court practice, no effective possibility for the representative of the Slovenian Bar Association to prevent inadmissible interferences with the rights of the lawyer’s clients, and therefore it is questionable whether his/her presence can play the role for which it was enacted by the legislature, i.e. the protection of confidential relationships between a lawyer and his/her clients.66 According to Jadranka Sovdat, M.Law, a justice with the Slovenian Constitutional Court, it is likely that such provisions of the Slovenian legislation do not provide for sufficient safeguards for protection of professional secrecy, especially in the light of the case law of the European Court of Human Rights.67 In its judgment in the Wieser and Bicos Beteiligungen GmbH v. Austria case, dated 16 October 2007, the European Court of Human Rights examined whether the national law ensures appropriate and effective safeguards to prevent abuse 62 Decision by the Supreme Court of the Republic of Slovenia, no VIII Ips 214/1997, of 28 November 2002. 63 Decision by the Constitutional Court of the Republic of Slovenia, no Up-2530/06, of 15 April 2010 (Official Gazette of the RS, no 42/2010). 64 Decision by the Constitutional Court of the Republic of Slovenia, no Up-2530/06, of 15 April 2010 (Official Gazette of the RS, no 42/2010). 65 Decision by the Constitutional Court of the Republic of Slovenia, concurring opinion of Judge Jadranka Sovdat, M.Law, joined by Judge Marija Krisper Kramberger, M.Law, to Decision no Up-2530/06, of 5 March 2010, Official Gazette of the RS, no 42/2010. 66 Decision by the Constitutional Court of the Republic of Slovenia, concurring opinion of Judge Jadranka Sovdat, M.Law, joined by Judge Marija Krisper Kramberger, M.Law, to Decision no Up-2530/06, of 5 March 2010, Official Gazette of the RS, no 42/2010, pt. 8. 67 Decision by the Constitutional Court of the Republic of Slovenia, concurring opinion of Judge Jadranka Sovdat, M.Law, joined by Judge Marija Krisper Kramberger, M.Law, to Decision no Up-2530/06, of 5 March 2010, Official Gazette of the RS, no 42/2010.

517

Professional secrecy of lawyers in Europe

and arbitrariness. It examined in particular whether the warrant was issued by a judge, whether the scope of the warrant was reasonably limited and – since the search of a lawyer’s office was involved – whether it was carried out in the presence of an independent observer in order to ensure that documents protected by professional secrecy were not seized. The European Court of Human Rights found out that the investigating judge had issued the search warrant and that the scope of the warrant was reasonably limited. It established that the safeguards provided for by the Austrian criminal procedure were fully complied with as regards the search of the documents. Whenever the representative of the Bar Association objected to the seizure of a particular document, this document was sealed. Later, the investigating judge decided, in the presence of the applicant, which documents were subject to professional secrecy and returned a number of them to the applicant. The same safeguards, however, do not seem to be observed in the Slovenian Criminal Procedure Act and the Attorneys Act. Although the search of files and items may only be conducted on the basis of the warrant specifying which files and items can be seized, the representative of the Slovenian Bar Association can likely not effectively prevent the seizure of documents that may include confidential information protected by the attorney–client privilege.68 In addition, the Slovenian legislation does not provide that documents that might be protected by the privilege shall be sealed and only subsequently assessed as to whether they are subject to professional secrecy. 43. In accordance with the Inspections Act,69 the lawyer may refuse the inspection of the business, production or other premises with respect to the investigation of his/her client, if the duty of professional secrecy might be breached. The lawyer may refuse such inspection investigation of his/her premises if the investigation might breach the duty of professional secrecy; however, the right to refuse such inspection arguably only exists with respect to clients and not when the lawyer is him-/herself subject to the investigation (e.g. an investigation by the tax authorities).70

8

The lawyer as witness 44. The Criminal Procedure Act envisages that the lawyer is discharged from the obligation to testify with respect to facts he/she learnt while carrying out his/her profession, if he/she is bound by the duty of professional secrecy, except (i) in 68 Decision by the Constitutional Court of the Republic of Slovenia, concurring opinion of Judge Jadranka Sovdat, M.Law, joined by Judge Marija Krisper Kramberger, M.Law, to Decision no Up-2530/06, of 5 March 2010, Official Gazette of the RS, no 42/2010, pt. 14. 69 Official Gazette of the RS, no 56/2002, as amended. 70 Podlipnik Jernej, ‘Ali smejo davˇcni inˇspektorji pregledovati odvetniˇske spise’, Pravna praksa 8 (2011), 10.

518

Slovenia

criminal proceedings against inviolability of sexual integrity, parental neglect and maltreatment or people-trafficking;71 (ii) if the lawyer, bound by the duty of professional secrecy, is released from the respective duty, in accordance with the conditions stipulated by law; or (iii) in the case of the existence of the duty to communicate the confidential information to the competent authorities. The Court is obliged to instruct the privileged witness before his/her testimony of his/her right to refuse testimony. According to court practice, it derives from such duty that the lawyer may still testify, but nevertheless has the right to decide whether to testify or to refuse testimony.72 With respect to such position of the court, it should be noted that the Code of Ethics expressly stipulates that as a rule the lawyer shall not propose the examination of him-/herself as a witness in cases in which he/she has represented the respective clients and he/she shall also not undertake representation in cases in which he/she might be examined as a witness. Irrespective of the court decision mentioned in the previous paragraph, it should still hold true that the right to refuse testimony is intended to protect persons bound by professional secrecy and not the defendant; if such persons were not released from the duty to testify, they might cause damage to the defendant with whom they are in a confidential relationship.73 It is also reasonable to argue that such persons would breach their duty of professional secrecy and therefore suffer the consequences in the form of disciplinary measures. The right of refusal exists only if the person is bound by professional secrecy. The duty of professional secrecy and the right to refusal only refer to information which was entrusted to such a person in the capacity of their profession and not to any other facts that are not connected to their professional capacity. Hence privileged witnesses may still be examined to a certain extent.74 45. The Civil Procedure Act and the Administrative Procedure Act both stipulate that the witness may deny testimony about facts that were disclosed to the witness in the capacity of lawyer, if the witness is bound by the duty of professional secrecy. This privilege, however, is limited in civil procedure, since the witness may not deny testimony due to professional secrecy if the disclosure of certain facts is necessary for the public benefit or the benefit of some other person, provided that such benefit prevails over the protection of the secret.

71 The duty of professional secrecy in criminal proceedings against a defendant who is prosecuted for criminal offences against the inviolability of sexual integrity, parental neglect and maltreatment or people-trafficking is only discharged in the event the victim is a minor. 72 Decision by the Supreme Court of the Republic of Slovenia, no I Ips 175/1999, of 20 June 2002. 73 Decision by the Supreme Court of the Republic of Slovenia, no I Ips 78/2000, of 7 November 2001. 74 Decision by the Supreme Court of the Republic of Slovenia, no I Ips 78/2000, of 7 November 2001.

519

Professional secrecy of lawyers in Europe

On the other hand, the Administrative Procedure Act does not contain such a provision, but merely envisages that the witness may testify on facts that are covered by the duty of professional secrecy only after the competent authority has released such witness from his/her duty of professional secrecy.

9

Tapping of telephone conversations with a lawyer 46. The privacy of correspondence is guaranteed by the Constitution (see also no 40 of this chapter). The police may, provided that certain conditions are fulfilled, use covert investigative measures of controlling electronic communications against an individual by tapping or recording (Art. 150 of the Criminal Procedure Act). Such measures may be carried out only for a limited period of time, on the basis of a court order in the event of a serious indication that the person in question has committed or is preparing to commit one of the exhaustively listed criminal offences. The police may have access to the traffic/location data in accordance with the first paragraph of Article 149(b)(1) of the Criminal Procedure Act (a court order is issued for individual implementation of the measure for all criminal offences prosecuted ex officio), and may also request identification of the participants in communication and owners of the means of telecommunication in accordance with the third paragraph of Article 149(b)(3) (police may request such identification directly from the operator without a court order).

10

The lawyer and the press 47. The view taken by the majority of legal professionals is that current judicial matters shall not be commented on in the media until finality of judgment. However, a minority of legal professionals do not support such a view, especially with respect to criminal procedures. In their opinion, a criminal procedure is a battle between the stronger state (with a monopoly on repression) and the less strong individual whose rights are protected by the lawyer. Therefore the latter is allegedly justified in using all legal measures that may benefit his/her client and the public; especially the media can function as a strong ally of the client.75 Since the Attorneys Act or other applicable legislation does not generally prohibit the lawyer from commenting on the case in the media, the lawyer may generally speak to the press. However, the lawyer’s presence in the media should be limited, with the client’s consent and with the ethical requirements of the legal profession, and the duty of professional secrecy should not be breached by his/her presence in the media. ˇ 75 Ceferin Peter, ‘Odvetnik in etika’, Podjetje in delo V (2007), 1573.

520

Slovenia

The lawyer shall also abide by certain rules of the Attorneys Act that mainly concern the advertising of the lawyer. Nevertheless, they may apply when the lawyer comments on the case in the press. As a matter of fact, the Attorneys Act provides that the lawyer is entitled to inform the public on his/her activity if the information is real, conscientious and non-misleading; if he/she complies with the duty of professional secrecy and is in accordance with the ethical requirements of the legal profession. If the lawyer does not abide by this rule, the Market Inspectorate may impose a fine of at least €10,000 on the lawyer.

11

Powers of the tax administration and other authorities 48. The Tax Administration does not have any specific powers granted by the applicable legislation that entitle it to compel a lawyer to disclose information protected by the duty of professional secrecy. In practice, the question has arisen whether the tax authorities have the right to access a lawyer’s files and documents in the framework of the investigation of the lawyer’s performance of his/her business activity and his/her compliance with tax legislation. The Information Commissioner issued a nonbinding opinion according to which the duty of professional secrecy does not preclude the competent inspectorates from inspecting legal compliance in the public interest, since this complies with the principle of legal certainty.76 The tax authority may not, however, go beyond what is necessary for the attainment of the specific objective, and the tax authority shall be obliged to choose the most favourable authorisations and measures in this respect.77 The requirement of professional secrecy protects the content of the lawyer’s files and there is no legal basis for the search of documents referring to the subject of the case.78 However, the tax authority shall have access to invoices, schedules of work etc., irrespective of whether they are kept electronically or manually.79 Moreover, it is more appropriate to obtain such data for individual lawyers from the files kept by the competent courts than from the respective lawyers’ files.80 The tax authorities must perform the investigation in accordance with their authorisations, including, but not limited to, entrance to private premises and the search of private premises, business books, contracts, documents, records and business documentation of other persons in the lawyer’s premises. The tax authorities are obliged to investigate and determine all necessary facts for the adoption of a lawful and correct decision in accordance with their obligation

76 77 78 79 80

Opinion of the Information Commissioner no 0712–94/2011/3, p. 5. Opinion of the Information Commissioner no 0712–94/2011/3, p. 5. Opinion of the Information Commissioner no 0712–609/2008/2, p. 5. Opinion of the Information Commissioner no 0712–609/2008/2, p. 5. Opinion of the Information Commissioner no 0712–94/2011/3, p. 5.

521

Professional secrecy of lawyers in Europe

of finding the truth.81 The business performance of a lawyer is bound to an individual file opened for an individual client; therefore the tax authorities have the right to access the file, since the documents in such file include documents evidencing the performance of the lawyer’s business activity.82 Since Article 8 of the Attorneys Act provides for specific rules concerning the search of the lawyer’s office (see no 42 above of this chapter) with reference to a criminal procedure, it could be argued that the same rules could be used in the event of an investigation by the tax authorities. The tax authorities may recover the confidential data of clients which does not relate to the lawyer’s compliance with tax legislation. Therefore the legal order should ensure the protection of the constitutional rights of the lawyer’s clients. Accordingly, if special rules are provided for criminal investigation, they should also apply to tax inspection and Article 8 should apply by analogy.83

12

State security service 49. In accordance with the Security Agency Act,84 the Slovenian State Security Service (SOVA) can obtain information by secret surveillance of telecommunications, if serious indications exist that a certain activity constitutes a potential threat to national security (Art. 24 Security Agency Act). Secret surveillance can only be carried out on the basis of an order of a justice of the Supreme Court. No specific provisions exist concerning the professional secrecy of lawyers (or other persons bound by professional secrecy), thus there is the possibility of a conflict between the provisions of the Attorneys Act and the provisions of the Security Agency Act. Such possibility is minimised, however, by the involvement of a justice of the Supreme Court. No relevant case law exists with respect to this issue.

13

Future, and conclusion 50. Currently there are no proposals for new acts or amendments to the applicable legislation that would (substantially) alter the current regulation of the duty of professional secrecy. It is necessary to stress that for the time being the Slovenian courts have not often dealt with the concept of the duty of professional secrecy. Accordingly, there are not many guidelines on how to deal with possible breaches of the duty of professional secrecy. Moreover, statistics of the Slovenian Bar Association 81 Opinion of the Information Commissioner no 0712–609/2008/2, p. 5. 82 Opinion of the Information Commissioner no 0712–94/2011/3, p. 5. 83 Podlipnik Jernej, ‘Ali smejo davˇcni inˇspektorji pregledovati odvetniˇske spise’, Pravna praksa 8 (2011), 10. 84 Official Gazette of the RS, no 23/1999, as amended.

522

Slovenia

show that no disciplinary action for breach of the duty of professional secrecy has been taken up to this point. As is evident, the attorney–client privilege is protected by some specific legislation, particularly the Attorneys Act and the procedural laws, governing in particular the rights of lawyers as privileged witnesses. Nevertheless, the need for additional safeguarding measures exists, since additional safeguards would further protect the constitutional right to privacy of clients, especially with respect to search of the lawyer’s office and files by the competent authorities. With the introduction of such security measures the Slovenian regulation of the duty of professional secrecy would become fully in line with the practice of the European Court of Human Rights.

523

30 Spain ´ nielson s anchez stewart Vice-President of the Disciplinary Board of the Consejo General de la Abogac´ıa Espa˜nola

Preliminary note 525 1 Scope of and limitations on professional secrecy 525 A Statutory basis and implications 525 B Scope 527 C Persons subject to the duty of professional secrecy 530 D Limitations and derogations 530 a Limitations 531 b Derogations 533 E Law firms 533 F Legal assistants and staff 534 G External service providers 535 H Multidisciplinary associations 535 2 History 535 3 Supervision 536 A The bar associations 536 B The courts 536 4 Sanctions 536 A Proceedings and sanctions 536 a Disciplinary proceedings and sanctions 536 b Criminal proceedings and sanctions 538 c Civil proceedings and damages 538 B Relationship between criminal sanctions and disciplinary sanctions 538 5 Duty to provide information to the authorities 539 A Money laundering and terrorism 539 B Collective settlement of debts 540 6 Treatment of a lawyer’s documents and correspondence in the context of judicial investigations 540 7 Search of a lawyer’s office 541 8 Tapping of telephone conversations with a lawyer 541 9 The lawyer as witness 542 10 The lawyer and the press 543 11 Powers of the tax administration and other authorities 543 12 State security service 543 13 Conclusion 543

524

Spain

Preliminary note 1. In Spain, lawyers who are admitted to the Bar are subject to a duty of professional secrecy (which is not only attorney–client privilege). Only lawyers who are admitted to the Bar are entitled to appear in court defending their client (even though private individuals can also defend themselves and public institutions have their own legal representation that might not be incorporated in the Bar). Such lawyers are self-employed, although they can be partners or associates in a law firm. They must comply with the Bar’s code of ethics. In Spain, there are eighty-three bar associations, one in each of fifty provinces and thirty-three with smaller jurisdiction. The size and number of affiliates of each bar varies greatly. Madrid has more than 30,000 members, whilst there are some bars with fewer than 100. The structure is, however, the same, one president (decano) and one board (junta de gobierno). There is legally no distinction between lawyers who work for a company (in-house counsel) and other lawyers. Everyone has to be incorporated to the Bar and can use the title abogado. However, the legal representatives of state or public organisations (abogados del estado) do not need to be members of the Bar and usually are not. In recent years, in-house lawyers have begun to organise themselves in private consortiums. This chapter focuses on the duty of professional secrecy of lawyers who belong to the Bar. Unless indicated otherwise, for the purposes of this chapter, the term ‘lawyer’ refers to a member of the Bar (abogado).

1

Scope of and limitations on professional secrecy

A

Statutory basis and implications 2. Professional secrecy is recognised in the Spanish Constitution (Constituci´on Espa˜nola de 1978). The Spanish Constitution (Section 18) promulgates the right of professional secrecy and determines that it shall be regulated by law. The final subsection of Section 24 implicitly acknowledges the professional secrecy to which the lawyer is bound, but fundamentally in his/her aspect of defender when the law is entrusted with its regulation: ‘The law shall specify the cases in which, for reasons of family relationship or professional secrecy, it shall not be compulsory to make statements regarding allegedly criminal offences.’ The Supreme Court of Justice (Tribunal Supremo) ruled, in its decision of 17 February 1998,1 that professional secrecy was the basis of the right to be defended. 3. Section 542(3) of the Organic Law Governing the Judiciary (Ley Org´anica del Poder Judicial) – hitherto Section 437(2) – provides, ‘Lawyers shall keep 1 Spanish Supreme Court, Chamber Three, Division Six, 12 February 1998, reporting judge Mr Xiol R´ıos, Aranzadi 1998/1633.

525

Professional secrecy of lawyers in Europe

secret all facts or information that have been confided to them through any of the facets of their professional activity and may not be obliged to give evidence thereon.’ The same law specifies what these functions are. The lawyer is not only a defender but is also a consultant and an adviser. Section 542(1) of the Organic Law Governing the Judiciary provides, ‘The title and function of lawyer exclusively pertains to a graduate in law who professionally practises the defence of parties in all kinds of proceedings or provides professional guidance and legal advice.’ The ultimate basis of the lawyer’s professional secrecy is therefore twopronged. On the one hand, it is based on the right of the client to privacy – ex Section 18(1) of the Spanish Constitution – in the area of guidance and advice, and on the other, it is based on the right not to give evidence against a client, which is guaranteed by Section 24 of the Magna Carta with respect to the right to be defended. In addition to the provisions of the Organic Law Governing the Judiciary, Rule 416 of the Spanish Rules of Criminal Law Procedure (Ley de Enjuiciamiento Criminal) exempts the defendant’s lawyer from giving evidence on facts that the defendant confides in him/her in his/her capacity as defender. Section 135 of Organic Law 2/1989 Governing Military Procedure (Ley Org´anica de Justicia Militar), passed in Spain on 13 April 1989, provides that lawyers are included among those who are exempt from informing the authorities of criminal offences that have been confided to them by their clients. Professional secrecy is mentioned in numerous provisions of the Spanish Lawyers General Statute (Estatuto General de la Abogac´ıa Espa˜nola; hereinafter ‘the Statute’): Section 21, prohibition from sharing premises with incompatible professionals if this might adversely affect the obligation to abide by professional secrecy, and Section 25(2), on anti-ethical advertising activities comprising the ‘direct or indirect disclosure of facts, data or situations protected by professional secrecy’. Protection is also provided by virtue of Section 28, relating to the collective practice of the profession, and Section 32(1), which reproduces Section 542(3) of the Organic Law Governing the Judiciary – hitherto 437(2) – referred to above. Section 42(1) of the Statute, which sets forth the obligation to employ the maximum conscientiousness and diligence in the defence of a client, requires that, in doing so, professional secrecy must be observed. Lastly, the Statute refers to secrecy – though not professional in these cases – in Sections 49(6) and 50(1). In its preamble, the Code of Conduct (C´odigo Deontol´ogico de la Abogac´ıa Espa˜nola; hereinafter ‘the Code’) lists professional secrecy as one of the fundamental principles of the legal profession and as a reason for setting out certain limitations in the rules governing incompatibility and advertising, the nonlimitation of free competition and the social function of the legal profession. 526

Spain

In accordance with the Code, secrecy includes communication with clients, with colleagues and with the ‘adversary’; confidential information and proposals; and in general ‘all of the facts and documents that the lawyer is informed of or has been given due to any of the aspects of his professional activity’. The Code also makes reference to face-to-face and distance conversations with clients and with the opposing party – supposedly in the presence of the client and his/her lawyer, if the client is represented – and with the counsel of the adversary party, but also protected by the rule of professional secrecy are conversations that might be held with persons who, though not clients, opponents or lawyers, come into contact with the lawyer, such as a relative of the client, an expert or a witness. Also subject to the secrecy rule are talks with other lawyers, a fellow-helper or the lawyer one might be succeeding in the defence of the same client. For further information see a judgment delivered by the Supreme Court which defines the scope of secrecy and confidentiality, including draft copies and purely oral conversations, without a signature being required on the documents.2 In another decision on recordings that were not admitted, the Supreme Court stated that a lawyer should have resigned his appointment when his client taped without his knowledge his conversations with a colleague.3 4. The duty of professional secrecy, even though it normally protects the client, is not conceived only for that and its basis therefore is not contractual but legal, and the authorisation from the client to disclose information does not allow the lawyer to breach this duty of confidentiality. There is no doubt on this as the revelation of confidential matters may affect not only the client but other parties. A lawyer thus cannot use in a new case information that he/she has received or become aware of in another case, nor can he/she testify in respect of facts that he/she has learnt in his/her professional activity as defender or adviser. In civil cases, the court should not accept privileged information into evidence. Any such information must be discarded with the application of the theory of the fruit of the poisoned tree.

B

Scope 5. The duty to abide by secrecy is objectively absolute – that is, it embraces all facts or information – but it is not universal; in other words, not all lawyers, whatever function they are performing, are subject to such an obligation. 2 Spanish Supreme Court, Chamber Three, Division Six, 22 April 1997, reporting judge Mr Mateos Garc´ıa, Aranzadi 1997/3094. 3 Spanish Supreme Court, Chamber Three, Division Six, 11 May 1999, reporting judge Mr Lecumberri Mart´ı, Aranzadi, 1999/4779.

527

Professional secrecy of lawyers in Europe

It is absolute as it covers all information, whether written or oral, obtained by the lawyer (not only that provided by the client) in any of his/her functions of defending in court or giving legal advice either in litigation relating to the client’s rights and obligations or in the course of soliciting advice regarding the client’s legal rights and obligations. This includes information provided by the opposing party or a third party. Therefore any information the lawyer receives (i) in the course of defending or representing a client before a court, including an administrative court or committee entitled to determine the rights and obligations of individuals, and (ii) in the context of ascertaining the client’s legal position, including when advising the client on the preparation or performance of a transaction, is covered by the duty of keeping professional secrecy. 6. The duty is, however, not universal in the sense that not all activities which a lawyer might perform are covered by the duty of confidentiality. Some activities outside the strict legal profession (e.g. when the lawyer acts as a company director, a trustee in bankruptcy or a lobbyist) are thus not protected. In this regard, it may be clearer to distinguish between assistance provided by a lawyer in order to help the client determine legal rights or obligations and other activities carried out by a lawyer. For instance, when a lawyer serves as a director, liquidator or court-appointed trustee, the lawyer is not acting on behalf of or providing assistance to a client. Information obtained from lobbying activities is, of course, only privileged to the extent such activities are intended to define or enhance the legal position of a client. Indeed, lobbying on behalf of a client could also constitute the provision of assistance to the client in defining a legal position or avoiding litigation. 7. In short, correspondence or other information which the lawyer sends or receives when serving as a liquidator, director or trustee in bankruptcy, or when fulfilling a court appointment, is not protected by the duty of professional secrecy. Furthermore, any funds a lawyer receives outside the exercise of the legal profession (even if received from a client) are not protected, meaning that the lawyer may be asked to account for the use or origin of these funds. 8. In general, any correspondence between lawyers is covered by the duty of professional secrecy and thus privileged. Furthermore, any enclosures in such correspondence, advice the lawyer prepares on the client’s rights and obligations, and personal notes made by the lawyer are also covered by the obligation to keep confidentiality. It should be noted that whilst the Code only refers to correspondence received by the lawyer, the Statute covers any correspondence between lawyers thus remitted or received. 9. The phrase ‘abide by secrecy’ when it refers to professional life goes beyond ensuring that matters that are confidential remain so. The obligation to uphold 528

Spain

professional secrecy is an obligation not to reveal; that is, not to state, declare, inform or communicate any matter that the lawyer has come to know in the course of his/her professional practice. The matter may be secret or not secret. In other words, it may be unknown to all or known to all. This does not matter: the lawyer may only consider that a matter of any nature which has been confided to him/her in the course of any of his/her professional activities is protected by professional secrecy. 10. In its judgment of 16 December 2003,4 the Supreme Court reasserted the interpretation of the scope and content of secrecy in respect of the obligation to abide thereby even regarding matters that are in the public domain and well known. It concerned the disclosure of certain statements and confidential matters that had already been made public through the very extensive coverage given to them by the media. The Supreme Court stated in its decision that just because the content of said statements and confidential matters and their existence were no longer secret was no reason for relieving lawyers of their duty to keep professional secrecy. This position was based on the fact that when the lawyer made his statement public and reaffirmed the content of the statements and confidential matters, he was adding weight to the possible gravity and certainty to the content of said disclosures. The same does not happen with official secrets that are no longer secret when they have been discovered, and when this happens, even though the discovery is unlawful, they are governed by the freedom of expression.5 In its judgment of 12 February 1998,6 the Supreme Court had the opportunity to specify the scope of the professional secrecy binding a lawyer who, as witness, had given evidence to facts that he had come to know while rendering his services. In his defence the lawyer said that he had not acted in the proceeding and that he had gained ‘knowledge of the facts from the negotiations conducted but not so much in his capacity as a lawyer’, which the client himself admitted. The Court stated: This argument cannot be accepted. The evidence examined, as detailed in the judgment of the proceeding, shows that the denounced party acted in his capacity as a lawyer on the questions relating to the matter, which subsequently became the subject matter of litigation to which court he was summoned as a witness. The fact that the particular service rendered on which he gave evidence might have consisted of confidential business

4 Spanish Supreme Court, Chamber Three, Division Six, 16 December 2005, reporting judge Mr Puente Prieto, Aranzadi 2005/3604. 5 This was stated by the European Court of Human Rights, 9 February 1995, Vereniging Weekblad Bluf v. Austria. 6 Spanish Supreme Court, Chamber Three, Division Six, 12 February 1998, reporting judge Mr Xiol R´ıos, Aranzadi 1998/1633.

529

Professional secrecy of lawyers in Europe

to endeavour to come to a compromise or agreement does not mean that professional secrecy cannot also be extended to said business . . .

On another occasion, the Supreme Court also pointed out that, in spite of the generality of the obligation to abide by the professional secret, lawyers are only required to do so in their professional capacities, but not as individuals.7 This is a reaffirmation of the principle that the lawyer is bound by the rules of conduct when he/she acts in his/her capacity as such and not merely because he/she is professionally qualified to do so.

C

Persons subject to the duty of professional secrecy 11. The rule of professional secrecy by which subjects are bound extends to cover the lawyer’s employees, subordinates and collaborators, and has been ratified by Sections 9 and 14(1) of Act 2/2007 Governing Professional Companies (Ley de sociedades profesionales) relating to compliance with rules of conduct. Royal Decree 1331/2006, passed in Spain on 17 November 2006, by virtue of which are regulated the special labour relations of lawyers who render services in collective or individual law firms (Real Decreto 1331/2006, de 17 de noviembre, por el que se regula la relaci´on laboral de car´acter especial de los abogados que prestan servicios en despachos de abogados, individuales o colectivos) applies this obligation to those who work for the owner of the firm by setting forth in the last subsection of Section 6 and in Section 24(2) provisions on disciplinary liability. 12. The general consensus is that professional secrecy is not only in the interest of the client but also of society as a whole and is a matter of public policy. Professional secrecy is the ‘cornerstone of the practice of law’.8

D

Limitations and derogations 13. The duty of keeping confidentiality may be subject to some limitations. Secrecy has traditionally been conceived as a duty and a right. With respect to the profession of law, secrecy is a negative right – not to give evidence – and is only exercised when the lawyer is requested to give evidence even when his/her role involves communication between the defendant and the counsel.9 7 Spanish Supreme Court, Chamber Two, 16 March 2006, reporting judge Mr Mart´ın Pall´ın, Aranzadi 2006/4778. 8 According to a statement contained in the judgment of the Spanish Supreme Court, Chamber Three, Division Six, delivered on 3 March 2003, reporting judge Mr Trillo Torres, Aranzadi 2003/2643. 9 See M. Otero Gonzalez, ‘El secreto profesional desde la o´ ptica del deber de declarar en el proceso penal’, La Ley, 5135, 2000; and M. Otero Gonzalez, Justicia y secreto profesional, Madrid: Centro de Estudios Ram´on Areces, 2001.

530

Spain

Already in 1984, the Constitutional Court (Tribunal Constitucional)10 authorised the possibility of requiring certificates of current account movements while stating that such a requirement did not in itself violate the professional rule, nor did the simple disclosure of the client’s name and the amounts paid by him/her in fees. The judgment, however, stated conclusively that although the Spanish Constitution does not explicitly reinforce the banking secrecy rule, it does do so with the professional secrecy rule. In its judgment 6/1988 of 21 January 1988, the Constitutional Court stated that violation of the professional secrecy rule – incidentally, on the part of an employee – was a contravention that ‘on no account could be legitimated with the argument of freedom of information’.11 a

Limitations

14. Despite how categorically impossible it is to reveal the professional secret, there are situations in which it is inevitable that certain circumstances have to be reported even though they might be considered to be protected by this obligation of confidentiality. On the obligation to collaborate with and inform the State Agency for Tax Administration (Agencia Estatal de Administraci´on Tributaria), account has to be taken of Section 93 of the General Tax Law, Act 58/2003, passed in Spain on 17 December 2003 (Ley General Tributaria), which requires the disclosure to said state agency of all kinds of data, reports, records and receipts of tax relevance of which professionals become aware in the practice of their professional activity, provided the disclosure of these might not jeopardise personal and family honour or privacy. Neither can the obligation affect confidential data of clients which have come to their knowledge as a consequence of providing professional advice or defence services. It is to be emphasised that professionals may not invoke the professional secrecy rule to prevent the verification of their own tax position.12 The Supreme Court has a body of case law relating to the professional secrecy rule in respect of collaboration with the State Agency for Tax Administration, albeit in relation to real-estate agents, other professionals and private banking.13 10 Spanish Constitutional Court 110/1984, 26 November 1984, reporting judge Mr Latorre Segura. 11 Spanish Constitutional Court 6/1988, 21 January 1988, reporting judge Mr Diez-Picazo y Ponce de Le´on. 12 For further information please consult the judgment of the Spanish Constitutional Court 76/1990, delivered on 26 April 1990, reporting judge Mr Leguina Villa. 13 Judgments of the Spanish Supreme Court, Chamber Three, Division Two, delivered on 3 February 2001, reporting judge Mr Mateo D´ıaz, Aranzadi 2001/250; 7 June 2003, reporting judge Mr Mateo D´ıaz, Aranzadi 2003/4014; Chamber Three, Division Six, on 6 March 1989, reporting judge Mr Mart´ınez Sanju´an, Aranzadi 1989/2177; Chamber Three, Division Two, on

531

Professional secrecy of lawyers in Europe

15. The position of the lawyer to whom a client confides his/her intention to commit a crime is commonplace, with the accompanying dilemma of whether or not to keep this information secret. The dilemma can be solved,14 by considering that the secrecy rule does not apply because: (a) the right of defence has not materialised (since it is a future event), only leaving then the right to privacy (for this purpose of less significance); (b) it does not fall within the right of the confidant to privacy (since it is a criminal plan) and (c) the lawyer’s social function (the third element of the structure) compels him not to conceal such a secret because in accordance with the Spanish Lawyers General Statute, said function is aimed at justice, advice, harmony and the defence of private and public legitimate interests by virtue of applying legal science and technique. The assistance to be provided by the lawyer must always seek the best execution of the legitimate rights and interests of his clients. Also,15 the exemptions from the secrecy rule arise from the circumstance of necessity, supporting the argument on Section 20 of the Spanish Criminal Code (C´odigo penal) currently in force. On defending him-/herself in disciplinary proceedings, the lawyer could verge on breaking the professional secrecy rule, for which reason he/she must tread with the utmost caution, but neither would a refusal in toto to reveal anything because of being bound by the secrecy rule be acceptable. Should the opposite criterion be applied, lawyers would be exposed to the most unfounded denunciations of all kinds, civil, criminal and ethical, without any possibility of defence. It is generally accepted, therefore, that, in certain exceptional cases of need, a lawyer must disclose privileged information. This is typically the case when the life or health of a person is in jeopardy. If in doubt, the lawyer will refer the matter to the president of the bar association, who cannot authorise him to disclose the information but is able to advise the lawyer to adopt remedial action.16 16. Lawyers may not hide behind professional secrecy to protect acts of their own doing, nor to cover up a crime they have committed. Any information, however, referring to an admission of crime or a reference to a tool used to commit a crime by a client or a third party is subject to confidentiality. 2 July 1991, reporting judge Mr Llorente Calama, Aranzadi 1991/6219; and Chamber Three, Division Two, delivered on 30 October 1996, reporting judge Mr Gota Losada, Aranzadi 1996/8608. 14 J. Soldado Guttierrez, ‘El secreto profesional del Abogado’, Revista Jur´ıdica de Andaluc´ıa, 1995, 17, 1183 et seq. 15 J. Cordoba Roda, Abogac´ıa: secreto profesional y blanqueo de capitals, Madrid and Barcelona: Marcial Pons, 2006. 16 Paragraph 5 of the Code.

532

Spain

b

Derogations

17. It is important to establish the nature of the secrecy rule where duty – or obligation – co-exists with a right in order to determine to whom it belongs and, therefore, who can exempt it, if such exemption is possible – if, that is, as a right it may be waived and if, as an obligation, it may be condoned, or if the lawyer can be relieved from safeguarding the rule. If the secret must only be kept because of the relationship of trust that has to exist between client and lawyer, it could be understood that the right belongs to the client and, as such, he may use it as he pleases. For some time now, this idea has been surmounted. The Constitutional Court has dismissed an appeal for legal protection while stating that professional secrecy does not belong to the client.17 18. Professional secrecy has always been prone to come into conflict with other values and principles of the legal profession. If a lawyer becomes aware of the commission of an offence, his obligation is to denounce it to the authorities so that it may be investigated and those responsible punished. If, however, this information has become known to him through his professional practice, then he is bound to forsake the obligation to co-operate with the law in the light of his obligation to keep the information secret. The impossibility of denouncing the offence exists even when the client expressly authorises the lawyer to do so. The secret does not belong to the former, and although this situation might seem absurd, disclosure by the lawyer could lead to undesirable consequences for third parties. The preservation of secrecy, however, at all costs could also give rise to serious damage or irreparable injustice. Think of the lawyer who knows that his client is the perpetrator of a crime for which a third party is serving sentence. Once again, this conflict of obligations favours the preservation of the secret when such information comes to the lawyer in the practice of the profession. 19. To conclude, it can be affirmed that nobody in Spain, not even a judge or the president of the bar association, and no authority, no matter how high-ranking and important that might be, can intervene and relieve the lawyer of his/her obligation to keep secret information that has come to him/her as a consequence of professional practice. Neither can the client.

E

Law firms 20. Lawyers who work in a law firm tend to share confidential information. It is generally accepted that no restrictions apply to this type of sharing of information. When a client engages the services of a law firm, all the lawyers 17 Spanish Constitutional Court 183/1994, 20 June 1994, reporting judge Mr D´ıaz Eimil.

533

Professional secrecy of lawyers in Europe

of the firm are deemed engaged; all members, whether handling the case or not, are subject to the duty of confidentiality. The duty applies to all information provided by the client to the lawyers of the firm, regardless of whether they are partners or associates. In all cases, they work on behalf of the firm. The situation is different when lawyers work in a cost-sharing structure. In this case, the lawyers do not practise jointly but only share costs and office space. In this case, they need to keep separate files. A client of one lawyer is not a client of the others. The obligation is therefore limited to information shared with the lawyer who represents the client and does not extend to the other lawyers who belong to the cost-sharing structure. Sections 9 and 14(1) of Act 2/2007 governing professional companies have ratified such obligations but may cause certain problems in respect of professional secrecy since they permit the co-existence of professional partners and capitalist partners in the ownership of law firms. This is not an entirely new problem since there are already multi-professional companies in which lawyers work together with those who are not lawyers and which therefore, according to their own code of conduct, either have or have not, and to different extents, an obligation to keep facts or information that comes to their knowledge secret. Ethics, in respect of the Act governing professional companies, is a constant theme to be respected so that the rules ‘do not become distorted when they are implemented through a corporate figure’. But the difficulty is not envisaged in the text of said Act that was foreseen over ten years ago,18 in respect of the unexceptionable nature of the obligation to keep the professional secret from non-professional partners who, by contrast and in the exercise of the rights conferred on them by commercial law, are entitled to exercise the right to be informed and to learn of confidential matters that might have been confided to the professional under the assurance that they were protected by the secrecy rule. Take, for example, invoicing by a firm incorporated as a company and the legitimate interest on the part of the non-professional partners to be informed of the reasons why a certain fee yields one amount and not another.19

F

Legal assistants and staff 21. Law firms employ secretaries, support staff and collaborators of all kinds who are also subject to the obligation to keep confidentiality and in principle

18 L. De Angulo Rodriguez, ‘Los despachos colectivos de Abogados y las normas colegiales’ and ‘El ejercicio en grupo de profesionales liberales’ (Group Practice of Liberal Professionals), Universidad de Granada, 1993, 313 et seq. 19 For further information see G. Ortega Reinoso, ‘Sociedad profesional: Composici´on de los despachos de Abogados’, Derecho Privado (November–December 2006), 75 et seq.

534

Spain

are committed to take all measures in order to preserve it and are personally responsible for any violation that could take place.

G

External service providers 22. The matter of the extension of professional secrecy to external service providers is not specifically foreseen, but the rule that lawyers are responsible for the acts of their collaborators applies as there is no distinction between services provided externally or internally. In addition, when confidential documents are sent outside the firm to nonlawyers, the duty of professional secrecy continues to apply. These persons work on behalf of the firm, within the limits of their particular assignment. If the confidential information inadvertently comes into the hands of a third party, the court may not allow this information to be presented into evidence.

H

Multidisciplinary associations 23. Lawyers are entitled to co-operate on a permanent basis with other professionals, provided that there is no incompatibility between the professions. In these cases, the lawyer should ensure that all associates respect the duty of professional secrecy. This does not mean the lawyer cannot share information with the non-lawyer; information can be shared but only provided that the non-lawyer undertakes to keep the information confidential, namely that the non-lawyer becomes obliged to the duty of professional secrecy by his/her commitment. In any event, privileged information shared by lawyers with non-lawyers in order to prepare the client’s case should remain protected by the duty of professional secrecy. Paragraph 24 of the Statute specifically provides this obligation.

2

History 24. The duty of professional secrecy for lawyers is far from being a new concept. The background of this obligation lies in the laws adopted during the Middle Ages. Already in the 1822 Criminal Code, disclosure of the professional secret was punished, and there was a similar provision in the 1848 Criminal Code. In the 1850 Criminal Code there was reference to the lawyer and the solicitor, as in the code promulgated in 1870 (Section 371); with a slight amendment, this became Section 439 of the 1928 Criminal Code. This was kept in Section 365 of the 1932 Criminal Code – that of the Republic – and was transferred without amendment to the Criminal Code introduced after the Civil War, the 1944 Criminal Code. It was not amended in the 1973 Code, but was in the 1995 Code. 535

Professional secrecy of lawyers in Europe

Section 199 of the present-day Criminal Code punishes the person ‘who reveals third-party secrets which become known to him due to his work or labour relations’, and the ‘professional who, in breach of his obligation to keep the professional secret, reveals those of another person’. In the field of Spanish criminal law, the new code has maintained that revelation of facts of a secret nature becomes a criminal offence. This is not so from the point of view of ethics, an area in which information does not have to be secret for there to be an obligation not to reveal it.

3

Supervision

A

The bar associations 25. A lawyer who belongs to the Bar is an independent legal professional who is free to determine how best to defend his or her clients and protect their rights and interests. Lawyers are subject to the authority of the bar association, which, through the president, oversees compliance with the code of ethics of the legal profession. The bar authorities cannot direct or instruct lawyers in the handling of their cases. Their authority is limited to the imposition of disciplinary sanctions if a lawyer breaches his or her ethical duties. If the Bar finds that a lawyer has violated the code of ethics, disciplinary proceedings will be initiated before a disciplinary body. The obligation to preserve confidentiality is also an ethical duty, the violation of which will result in the imposition of disciplinary sanctions.

B

The courts 26. Lawyers must, of course, abide by the law. The civil courts have jurisdiction to hear any claim for professional liability brought against a lawyer by a client. The criminal courts have jurisdiction over crimes committed by lawyers in the exercise of their profession. No special rules apply in this respect to lawyers.

4

Sanctions

A

Proceedings and sanctions

a

Disciplinary proceedings and sanctions

27. The bar association receives and examines complaints against the association’s members. The complaint should be in writing and can be filed by anyone. The Bar can also start proceedings at its own initiative or further to a complaint by the courts. The bar association normally has a permanent commission or disciplinary tribunal which deals with these matters. If the commission finds that the complaint is inadmissible or unfounded, the plaintiff and the lawyer 536

Spain

will be informed accordingly. In such a case, the person who has filed the complaint can ask the national or the local Council of Bars to review the decision. If the complaint has substance, one of the members of the commission, a member of the board or an independent lawyer – the system varies in the different bars – is appointed investigator. The lawyer under investigation must be given an opportunity to be heard, is entitled to produce information and evidence in support of his or her defence, and can be assisted by a lawyer of his or her choosing. If, after investigation, the appointed lawyer is of the opinion that there are sufficient grounds for disciplinary sanctions, the case will be opened as a file which is dealt with by the disciplinary tribunal and the lawyer will be informed of this decision. If a decision is not taken within six months of this decision being made, the lawyer and the bar association can apply for the file to be, or decide that it should be, reopened, provided that the offence does not fall under the statute of limitations. The statute of limitations is as follows: very serious offences must be handled within three years of having been committed, serious offences within two years, and misdemeanours within six months. Upon termination of the filing of the case, where both the plaintiff and the lawyer have full right of audience, the matter is referred to the board of the bar association with a proposal. The board can decide either to apply a penalty to the lawyer or dismiss the complaint for lack of evidence. All parties are informed of this decision, which can be appealed in a month’s time to the national or local Council of Bars. The following disciplinary sanctions can be imposed by the disciplinary body: (i) a reprimand, (ii) suspension from the practice of law for a period of up to three years or (iii) expulsion from the Bar. Expulsion from the Bar has effect in the whole of Spain, namely the lawyer cannot practise in any other jurisdiction in spite of the fact that he or she may be incorporated in another bar. Further, he or she cannot apply to be reinstated during that period. The board must justify its decision and both the lawyer, in the event of a sanction being imposed, and the plaintiff, in the event of the dismissal of the complaints, may appeal to the national or local council, which has its own disciplinary board. Both parties may appeal to and be heard before the council and make allegations. The role of the plaintiff and whether he/she has an interest in the disciplinary matters – not counting the civil or criminal implications – is still a matter under dispute. The sanctions are communicated to the courts and recorded in a special registry. After the decision of the council, both parties may appeal before the ordinary court and the decision of the court may be appealed before the high court. 537

Professional secrecy of lawyers in Europe

b

Criminal proceedings and sanctions

28. Violation of the obligation to maintain secrecy is punishable by criminal sanctions in accordance with Section 199 of the Criminal Code. The criminal court (Juzgado de lo Penal) has jurisdiction. The court’s decision can be appealed to the competent high court, whose decision can in turn be challenged, although only on legal grounds, in the Supreme Court. The punishment of a criminal offence requires that the information revealed in fact be secret and not public knowledge. On the contrary, disciplinary measures can be taken against a lawyer who violates his duty to keep confidential all information that has been obtained in the exercise of the profession. It makes no difference if this violation takes place by testifying in court (including before an investigating magistrate) or before a parliamentary inquiry committee. c

Civil proceedings and damages

29. Violation of the obligation to keep facts confidential may cause damage to the client and in certain cases to a third party. That party bears the burden of proof of damages and the fact that they have been caused as a consequence of the violation. The courts of first instance have jurisdiction over such proceedings, and appeal is possible to the courts of appeal and, finally, to the Supreme Court (on legal grounds only), provided that the damages are considerable.

B

Relationship between criminal sanctions and disciplinary sanctions 30. Disciplinary and criminal sanctions are imposed independently and there are relations between them. When a disciplinary case has been filed and the disciplinary tribunal is made aware that there are also criminal procedures on their way, the disciplinary case should be suspended until a final decision is adopted in the criminal courts. Once a criminal sanction is imposed on a lawyer, the disciplinary tribunal should continue the proceedings and another sanction may be imposed on the lawyer on the basis of the same facts as those that have been established in court, which should not be changed. The imposition of both criminal and disciplinary sanctions on the basis of the same facts does not violate the general principle of non bis in idem as the sanctions are imposed for the violation of different rules.20

20 This is considered a general (unwritten) rule of law which does not need to be enshrined in legislation in order to be applicable.

538

Spain

5

Duty to provide information to the authorities

A

Money laundering and terrorism 31. Credit institutions, financial institutions and financial intermediaries, realestate brokers, diamond traders, surveillance companies, notaries, bailiffs, auditors and accountants are obliged to inform the Financial Information Processing Unit (Servicio Ejecutivo de Prevenci´on de Blanqueo de Capitales – SEPBLAC) of any transaction they know or presume to be related to money laundering or the financing of terrorism, under Act 10/2010 of 28 April 2010 on the prevention of the use of the financial system for the purpose of money laundering and terrorist financing. This Act continues to include lawyers among those who are obliged to collaborate with the financial unit in the prevention of money laundering. This legislation only applies to lawyers when they are participating with their clients either taking part in the conception, guidance advice or execution of transactions relating to the acquisition or sale of real estate or companies; the management of funds, securities or other assets; the opening or management of bank accounts or securities accounts; contribution to companies; or the incorporation or management of companies, trusts, fiduciary or similar legal constructions, or when acting on behalf of clients in financial transactions or transactions relating to real estate (Art. 2 Act of 28 April 2010). In this case, the lawyer must identify the client seeking advice on any of the above matters before providing assistance. However, if the client is seeking assistance in ascertaining its legal position or with respect to litigation, the lawyer can accept the case before fulfilling the identification requirement. A lawyer who is informed of facts which he/she knows or presumes are related to money laundering or the financing of terrorism must immediately inform the financial unit and cannot inform the client of this fact or that an investigation is under way. There is no ‘tipping off’. The law establishes this obligation to collaborate with SEPBLAC and notify said service, on one’s own initiative, of any fact or transaction regarding which there is a suspicion or certainty that it is related to money laundering, without disclosing said notification to the client. Lawyers must not inform the financial unit when they receive or obtain information from a client in the course of ascertaining the client’s legal position or when providing assistance with respect to litigation, including when rendering advice on the initiation or avoidance of litigation, regardless of whether they receive such information before, during or after litigation. This exception does not apply when the lawyer takes part in the money-laundering activity or the financing of terrorism, or provides advice on money-laundering activity or the financing of terrorism, or knows that the client is seeking advice for the purposes of money laundering or the financing of terrorism, according to the terms of the third European Directive. 539

Professional secrecy of lawyers in Europe

The phrase included in the Act, without prejudice to its provisions, ‘Lawyers shall keep the professional secret pursuant to the law’, leaves few doubts that – regarding ‘participative guidance’ – this is a dilution of the obligation to keep the professional secret.

B

Collective settlement of debts 32. There are no special provisions in Spain in this context. In principle, lawyers may not use the information obtained or revealed in a case in favour of a different client in another case.

6

Treatment of a lawyer’s documents and correspondence in the context of judicial investigations 33. The European Court of Justice (Grand Chamber) decided on 14 September 2010, in case C-550/07,21 that professional secrecy is inseparable from the lawyer’s independence, and for this reason communications between an inhouse lawyer and the company for which he/she works are not subject to confidentiality. The professional secret therefore does not cover correspondence between clients and their in-house lawyers. During 2005 a lawyer was charged in Spain for an alleged offence of disobedience when he refused to deliver voluntarily to police officers who were handling a rogatory commission from a court of another country of the European Union ‘all such documentation as is relevant’ to an investigation concerning two foreign citizens and a company domiciled abroad ‘and that is in his possession’, as had been ordered by the judge who was processing the rogatory commission. The court dismissed the charge, though not without first stating, ‘although it is obvious that professional secrecy cannot be absolute or unlimited in nature and protect all degree graduates who are members of a bar association just like that regardless of the activities they conduct’, therefore the lawyer should have handed over all documents and the court order to do so was fully legitimate and appropriate, as was the subsequent inspection. The solution would have been the same in the United Kingdom, the home country of the client in the case at hand, since the lawyer was obliged to deliver the records that were required of him by virtue of a ‘production order’, but was not required to give evidence to the police, though he was required to do so before the court.22 The professional secrecy rule protects any communication between lawyer and client if it takes place by telephone. Not long ago, however, the telephone lines of certain defendants were tapped during a major financial scandal; the 21 On the subject of Akzo Nobel Chemicals Ltd and Akcros Chemicals Ltd. 22 Guide to the Professional Conduct of Solicitors, 8th edn, London, 1999, Appendix 16(A), 335.

540

Spain

police presented to the judge the tapes on which conversations and advice given by the lawyers to their client on defence tactics were recorded. Regrettably, rather than directly rejecting this evidence, the judge’s first reaction was to request from the prosecutor a report on which of the elements could be admitted and which could not. Fortunately, the judge subsequently rectified the situation and these evidential elements were not included in the court record. Very recently, a judge was charged with ordering the tapping of conversations between clients and lawyers. The court case has yet to be heard.

7

Search of a lawyer’s office 34. The search of the office or home of a lawyer is not governed by law. According to the Statute, if the investigating magistrate decides to notify the president of the Bar to be present during the search, he or a representative duly appointed should attend. This takes place often as it is a guarantee for all parties concerned. The search should be limited to files relating to clients that are under investigation. No other files should be opened or looked at. However, the normal practice is to request the software and copy the pertinent files. When questioned by the investigating magistrate, the lawyer should not disclose information protected by the duty of professional secrecy. A decision of the Supreme Court has ruled that it is not contrary to the law to obtain other pieces of evidence during the search at a lawyer’s office and it should be for the magistrate to decide at a later stage what is pertinent and what is not.23

8

Tapping of telephone conversations with a lawyer 35. In certain cases defined in the Code of Criminal Procedure the investigating magistrate may authorise the tapping of telecommunications where there are serious indications that the person in question has committed a specific crime or if this person is suspected, on the basis of precise facts, of maintaining regular contact with a suspected criminal. Any relevant information is set down in an official transcript for further investigation. In the case of lawyers, the right to a defence is considered basic to ensure a fair trial, which again is the basis of the rule of law. Very recently, a judge was expelled from the judiciary for tapping the conversation between three suspected criminals and their lawyers without the necessary grounds to order such measure.24 23 Spanish Supreme Court, Chamber Two, 25 February 2004, reporting judge Mr Mart´ın Pall´ın, Aranzadi 2004/1843. 24 Judgment of the Spanish Supreme Court, Chamber Two, delivered on 9 February 2012, reporting judge Mr Miguel Colmenero Men´endez de Luarca.

541

Professional secrecy of lawyers in Europe

9

The lawyer as witness 36. Another inroad into the rule of professional secrecy is that relating to the lawyer giving evidence as a witness. An abrogative provision of Act 1/2000 Governing Civil Procedure (Ley de Enjuiciamiento Civil), passed in Spain on 7 January 2000, has derogated, inter alia, Section 1247 of the Spanish Civil Code, which considered to be incapacitated to give evidence as witnesses, among others, ‘those who are bound to keep a secret due to their position or profession in matters relating to their position or profession’. This provision, which clearly included lawyers, has been substituted with Section 371 of the Rules of Civil Procedure, the title of which is ‘Witness under the obligation to abide by the secrecy rule’. The abrogated provision referred to the incapacity of lawyers to give evidence as lawyers. It was not a privilege; it was not motivated by any desire to give lawyers special consideration. It was a way of avoiding unpleasant and futile situations. The lawyer is obliged to appear before the court just as, like any other person, he/she is bound to attend to summonses and notices of the judiciary while incurring, should he/she fail to do so, the pertinent liability. Before giving evidence, however, he/she should respectfully remind the judge that the facts about which he is going to be asked, should he/she know of them, are protected by the obligation of professional secrecy since he/she learnt of them in his/her capacity as lawyer of one of the parties. It should be remembered that the professional secret is established not only by internal, customary and traditional rules, but also by an organic law, and therefore Section 371 of the Rules of Civil Procedure is not applicable to a lawyer. In the hypothetical case that a judge should oblige the lawyer to give evidence, the latter must refuse to do so and request protection from the board of his bar association by virtue of Section 41 of the Spanish Lawyers General Statute. This opinion is not unanimous. There are those who think otherwise and consider that the obligation to keep the secret is only ‘professional’.25 It is reprehensible to summons a professional colleague to give evidence on facts that are protected by the obligation to abide by the secrecy rule. It is inane since the lawyer summoned as witness will not give evidence if well informed. Should he/she do so inadvertently, or be unaware of the rule, his/her statement must not be taken into account insofar as it might damage or benefit either of the parties. When this circumstance has been pleaded, the judge should

25 G. Alonso Olarra, Comentarios a la nueva Ley de Enjuiciamiento Civil, Madrid: Dykinson, 2000, 372; J. M. Rifa Soler, Comentarios a la nueva Ley de Enjuiciamiento Civil, Barcelona: Iurgium Editores, 2001, 371 and 372; M. Marchena Gomez, Enjuiciamiento Criminal, Ley y legislaci´on complementaria: Doctrina y Jurisprudencia, Madrid: Trivium, 1998.

542

Spain

apply the doctrine of the fruit of the poisonous tree, which inspired Section 11 of the Organic Law of the Spanish Judiciary,26 and was implemented by the judgments of the Supreme Court of 2 July 1998 and of the Constitutional Court of 22 March 1993 and 1 October 1990. Evidence given by the lawyer who is bound to keep the information secret is unlawful. The Supreme Court27 qualified the situation in the light of the questions asked of the lawyer–witness, and considered the evidence of a duty solicitor to be inadmissible.28

10

The lawyer and the press 37. It is generally accepted that a lawyer can, with the client’s consent, speak to the press in order to defend the client against allegations made in the press. However, the lawyer should refrain from conducting the case in the press rather than in the courtroom. In any case, the lawyer cannot disclose privileged information to the press.

11

Powers of the tax administration and other authorities 38. This matter has been dealt with in no 14 above.

12

State security service 39. No special rules apply. The rules above discussed will apply to the state security service.

13

Conclusion 40. To conclude, we should recall the speech made by the president of the Madrid Bar Association on the occasion of the award of the Gold Medal of the 26 Provincial High Court of Las Palmas, Division One, 12 November 2001, Act 202555/2001. The doctrine of ‘the fruit of the poisonous tree’, according to the legal terminology of the United States of America, is used to describe evidence based on information obtained unlawfully. The logic of the expression is that if the origin of the evidence (the tree) is corrupt, whatever derives from such evidence (the fruit) will also be corrupt. 27 Spanish Supreme Court, Chamber Two, 27 September 2002, reporting judge Mr Mart´ın Pall´ın, Aranzadi 2002/9240. 28 Spanish Supreme Court, Chamber Two, 4 December 2006, reporting judge Mr Montarde Ferrer, Aranzadi 2007/779 (the individual opinion of Mr Mart´ınez Arrieta described therein is very important).

543

Professional secrecy of lawyers in Europe

Bar Association of Madrid to HM the King:29 ‘And, over time, when the legal professional secrecy rule was conceived, it was not done to cover our conduct, but to guarantee that the truth can only be obtained by following the straight path while respecting the presumption of innocence.’ 29 L. Marti Mingarro, ‘Discurso con ocasion de la concesi´on al Rey Medalla de Oror del Ilustre Colegio de Abogados de Madrid’, OTROSI (Law Journal of the Bar Association of Madrid), July–August 1996.

544

31 Sweden henrik fieber Partner, Roschier

¨ minna sj ostrand Associate, Roschier

Preliminary note 546 1 Scope of and limitations on professional secrecy 546 A Statutory basis and implications 546 B Scope 547 C Persons subject to the duty of professional secrecy 550 D Limitations and derogations 550 E Law firms 552 F Legal assistants and staff 553 G External service providers 553 H Multidisciplinary associations 554 2 History 554 3 Supervision 554 A The Bar Association 554 B The courts 555 4 Sanctions 556 A Proceedings and sanctions 556 a Disciplinary proceedings and sanctions 556 b Criminal proceedings and sanctions 557 c Civil proceedings and damages 557 B Relationship between criminal sanctions and disciplinary sanctions 557 5 Duty to provide information to the authorities 558 A Money laundering and terrorism 558 B The Enforcement Code 558 C The Criminal Code 559 6 Treatment of a lawyer’s documents and correspondence in the context of judicial investigations 559 7 Search of a lawyer’s office 560 8 Tapping of telephone conversations with a lawyer 561 9 The lawyer as witness 561 10 The lawyer and the press 562 11 Powers of the tax administration and other authorities 562 12 State security service 562

545

Professional secrecy of lawyers in Europe

Preliminary note 1. The duty of confidentiality is regarded as one of the core principles of the legal profession in Sweden. It is a prerequisite for the safeguarding of individuals’ civil rights, including the right to privacy and the right to a fair trial. In order for an advocate to be able to protect his or her client’s interests it is necessary that the advocate is given access to all relevant information regarding the assignment. In order for a client to be able to provide the advocate with this information the client must feel assured that the information will be kept confidential and that it will not be revealed to an outside party without the client’s consent.1 2. In Sweden the duty of confidentiality is a duty owed by an advocate to his or her client not to disclose information obtained by the advocate in the exercise of his or her profession. The applicable rules and regulations regarding the duty of confidentiality do not in principle apply to lawyers in general, but only to members of the Swedish Bar Association (advocates; Swe. advokater) and indirectly to the advocate’s associates and staff. 3. The duty of confidentiality is regulated in statutory law and in the rules and regulations of the Swedish Bar Association.

1

Scope of and limitations on professional secrecy

A

Statutory basis and implications 4. The statutory basis of the duty of confidentiality is established in the Swedish Code of Judicial Procedure. Chapter 8, Section 4, of the Code of Judicial Procedure states that advocates are bound, when professional ethics so require, to keep confidential what they learn during the exercise of their profession. The statutory basis for the duty of confidentiality can thus be found in the Code of Judicial Procedure. However, as the reference to professional ethics (Swe. god advokatsed) in Chapter 8, Section 4, indicates, the further details of the duty are expressed in the rules and regulations of the Swedish Bar Association, more exactly in the Charter of the Swedish Bar Association and in the Code of Professional Conduct for Members of the Swedish Bar Association (the Code of Professional Conduct). According to Article 34 of the Charter of the Swedish Bar Association, an advocate may not, where professional ethics so require, disclose information he or she learns in the conduct of his or her practice. Section 2(2)(1) of the Code of Professional Conduct furthermore states that an advocate has a duty of confidentiality in respect of matters disclosed to him or her, or brought to his or her attention, within the framework of his or her legal practice. 1 H. Wiklund, God advokatsed, Stockholm: P.A. Norstedt & S¨oners f¨orlag, 1973, 293–4.

546

Sweden

5. The Code of Professional Conduct also establishes a duty of discretion on the part of the advocate. According to Section 2(2)(2) of the Code of Professional Conduct, an advocate is obliged to exercise discretion in respect of client matters. The advocate must not, without cause, make enquiries about assignments handled by the firm for which he or she works if the advocate is not personally charged with such work. 6. Finally, according to Section 2(2)(3) of the Code of Professional Conduct, an advocate is under an obligation to ensure that his or her employees exercise the same duty of confidentiality and discretion applicable to the advocate. 7. Confidentiality is also of importance in determining whether an advocate has a conflict of interest in relation to a prospective client or assignment. According to Section 3(2)(1) of the Code of Professional Conduct there is a conflict of interest if there is a risk that confidential information received in a previous assignment would be of significance in the prospective assignment. 8. An advocate’s obligation to keep information from the client confidential is implied in the contract with the client. Breach of the duty of confidentiality might therefore constitute a breach of contract. A breach of the duty of confidentiality might also lead to disciplinary or criminal sanctions. 9. Assessment of evidence is free in Sweden. It is therefore possible to allow evidence to be presented in criminal as well as civil cases even if the evidence stems from a breach of the duty of confidentiality.

B

Scope 10. According to Section 2(2)(1) of the Code of Professional Conduct, the duty of confidentiality encompasses information disclosed to the advocate, or brought to the advocate’s attention, in the course of his or her legal practice. Subsequently, the duty of confidentiality encompasses all information, written and oral, received from a client.2 In addition, all information which an advocate receives about his or her client from someone else in relation to an existing assignment and all other information received in the course of the exercise of the advocate’s profession falls within the scope of the duty. The scope of the duty is thus extensive. Information such as the fact that an advocate represents a certain client, that the client is party to court proceedings, a client’s address, a client’s statement in a police investigation, a client’s position in an organisation and all other information disclosed to the advocate within the framework of his or her legal practice is included in the confidentiality obligation. However, as is further discussed below, the duty of confidentiality does not extend to information that is considered to be ‘generally known’. Information that is 2 Wiklund, God advokatsed, 304.

547

Professional secrecy of lawyers in Europe

disclosed at a prospective client’s own initiative or information which is brought to the advocate’s attention outside the exercise of his or her profession likewise falls outside the scope of the duty. 11. The duty of confidentiality thus encompasses information brought to the advocate’s attention in the course of his or her legal practice. From this it follows that it is the advocate’s professional activities or his or her legal practice that provide the framework for the duty of confidentiality.3 The Bar Association publishes a Commentary (‘the Commentary’) to its Code of Professional Conduct. The Commentary is based on the jurisprudence of the Bar Association’s Disciplinary Committee. The Commentary to Section 2(2)(1) of the Code of Professional Conduct states that since it is the advocate’s legal practice that provides the framework for the duty of confidentiality, this duty is not limited to an existing assignment; it also encompasses information given by a prospective client in the absence of an actual assignment. As stated above, all such information from a prospective client is, however, not subject to the duty of confidentiality. The duty of confidentiality primarily encompasses information that the advocate has requested from the client, whilst information provided on the prospective client’s own initiative would normally fall outside the scope of the duty. In such a case the advocate may even be compelled to disclose the information received to an existing client.4 12. Whether information is considered to be confidential or not depends on the nature and context of the information in question. Correspondence between an advocate and his or her client is, for example, subject to professional confidentiality if the information within the correspondence is of such a nature as to qualify it as confidential. In the same manner correspondence between advocates is confidential provided that the information is classified as such. It is thus the information that determines what is regarded as confidential, and not who the correspondents are. 13. The duration of the duty of confidentiality is not limited in time. The duty remains in relation to the deceased. Consequently, parties to an estate cannot release the advocate from his or her duty of confidentiality.5 Furthermore, if a company which the advocate represents declares bankruptcy, the advocate’s duty of confidentiality remains in relation to the company in bankruptcy as well as to its previous representatives. Consequently, the advocate must not disclose information relating to the former representatives to the court-appointed receiver without the consent of the parties owed the duty of confidentiality.6 3 The Bar Association’s Commentary to Section 2(2)(1) Code of Professional Conduct. 4 The Bar Association’s Commentary to Section 2(2)(1) Code of Professional Conduct. 5 Decision 47/2007 of the Bar Association’s Disciplinary Committee, in C. Peyron, Advokatetik: en praxisgenomg˚ang, Stockholm: Sveriges Advokatsamfund, 2010, 171. 6 Peyron, Advokatetik: en praxisgenomg˚ang, 171.

548

Sweden

The same holds true if there is a change in a company’s board of directors. In such a case the new board of directors cannot, in relation to third parties, relieve the advocate from the duty of confidentiality owed to the former representatives. In Decision 152/1993 of the Bar Association’s Disciplinary Committee, an advocate disclosed information about a company’s previous board of directors in a police investigation. Although the advocate had been relieved of his duty of confidentiality by the company’s new board of directors he was issued a reminder by the Disciplinary Committee.7 14. The duty of confidentiality does not extend to the counterparty or third parties. Information that the advocate has received regarding circumstances relating to the counterparty or a third party is consequently not protected by confidentiality.8 However, professional integrity requires that the advocate not disclose such information to anyone but the client, if this is not required by law or necessary in order to best represent the interests of the client. 15. It should also be noted that an advocate may not, according to Section 5(7) of the Code of Professional Conduct, disclose an offer of settlement made by the opposing party in legal proceedings. 16. As previously mentioned, the duty of confidentiality does not extend to what is considered to be ‘generally known’. The reason is that it is not regarded as a breach of the client’s trust to disclose what is already in the public sphere. However, there is reason to be careful in determining whether something is considered to be generally known or not. For example, the fact that the information in question has been made public through the press does not necessarily mean that it is regarded as generally known.9 Additionally, as mentioned above, advocates also have a duty of discretion. As such, advocates must exercise discretion in respect of all client matters. 17. The duty of confidentiality not only prevents the advocate from disclosing information received from the client. The duty also requires the advocate to ensure that third parties and other unauthorised parties are not given access to the information.10 The advocate is thus under an obligation to so organise his or her work as to prevent confidential information from being disclosed. The duty of confidentiality also prohibits advocates from being heard as witnesses concerning matters entrusted to them in their professional capacity, or found out by them in relation thereto, unless there is a legal obligation or authorisation for them to testify (see no 60 of this chapter). 7 Decision 152/1993 of the Bar Association’s Disciplinary Committee, in Peyron, Advokatetik: en praxisgenomg˚ang, 172. 8 Peyron, Advokatetik: en praxisgenomg˚ang, 166. 9 Wiklund, God advokatsed, 305. 10 Ibid., 305.

549

Professional secrecy of lawyers in Europe

18. The duty of confidentiality is thus established in statutory law and in the Charter and Code of Professional Conduct of the Bar Association. Guidance on the interpretation of the scope of the duty can be found in the Code of Professional Conduct, in the published Commentary, and through the jurisprudence of the Bar Association’s Disciplinary Committee.

C

Persons subject to the duty of professional secrecy 19. In Sweden the duty of confidentiality extends to advocates (members of the Swedish Bar Association) and, indirectly, to their associates and staff. The rules and regulations described above are specifically applicable to advocates, not to lawyers in general. The witness prohibition does, however, extend to non-advocate trial counsels as well. According to Chapter 36, Section 5, of the Code of Judicial Procedure, non-advocate trial counsels cannot be heard as witnesses unless the client consents thereto or the case in question is a criminal case where the offence is either punishable by imprisonment for one year or more or the victim of the crime is a minor and the crime in question is one regulated in Chapters 3, 4 or 6 of the Criminal Code. For advocates the prohibition from testifying is more extensive than for non-advocate counsels (see no 60 of this chapter). 20. In-house lawyers are not permitted to be members of the Swedish Bar Association. Consequently, the duty of confidentiality does not extend to inhouse counsels. In light of this it should be noted that information in memos, reports and investigations drafted or conducted by in-house counsels does not benefit from the confidentiality protection awarded to advocates.

D

Limitations and derogations 21. There are limitations and exceptions to the duty of confidentiality according to which an advocate is relieved of his or her duty of confidentiality. These exceptions are listed in Section 2(2)(1) of the Code of Professional Conduct, which states that an advocate may be relieved of the duty of confidentiality if (i) the client consents to disclosure, (ii) there is a statutory obligation to disclose information, (iii) it is necessary in order for the advocate to defend himself or herself against claims made by the client or (iv) it is necessary in order to assert a claim for compensation for legal fees charged to the client in connection with an assignment. 22. There is thus, according to the Code of Professional Conduct, an exception to the duty of confidentiality if the client consents to disclosure. The consent should be well documented and unambiguous.11 Even if the client has waived 11 Peyron, Advokatetik: en praxisgenomg˚ang, 168.

550

Sweden

confidentiality, a Swedish advocate has an obligation to act in the best interest of the client. 23. There is also an exception to the duty of confidentiality if there is a legal obligation to disclose certain information. In Sweden the duty of confidentiality encompasses the identity of the client. However, if a Swedish advocate provides a legal service to a commercial trader whose place of business is in another European Union Member State, then the advocate is, according to the Tax Procedure Regulation, under an obligation to disclose the client’s VAT number to the Taxation Authority when reporting the transaction to the Taxation Authority. Advocates or their associates may not be heard as witnesses concerning matters entrusted to them in their professional capacity. However, according to Chapter 36, Section 5, of the Code of Judicial Procedure, advocates – with the exception of defence counsels – are under an obligation to give evidence in criminal cases where the offence is punishable by imprisonment of two years or more. The duty to testify and the duty to disclose documents are congruent. According to Chapter 38, Section 2, of the Code of Judicial Procedure, advocates, with the exception of defence counsels, subsequently have an obligation to disclose documents covered by confidentiality when this is required for the prosecution of certain serious crimes. Finally, the Money Laundering and Terrorist Financing Prevention Act and the Enforcement Code also include exceptions to the duty of confidentiality (see nos 48–9 and 50 of this chapter). 24. Additionally, an advocate is also relieved from his or her duty of confidentiality if this is necessary in order for the advocate to oppose claims made by a client against the advocate. For example, such an exception from the duty of confidentiality can be made in a malpractice dispute where the client requests damages to be paid by the advocate. The basis for the exception is, according to the Commentary, that an advocate should be able to disclose such information as is deemed necessary in order for the advocate to defend himself or herself in a judicial proceeding against a client. However, it is also emphasised in the Commentary that the advocate is only allowed to disclose information to the extent necessary to assert his or her rights against a client. Advocates have a duty to purchase and maintain liability insurance cover appropriate to their practice.12 According to the Bar Association’s Commentary, the defence exception from the duty of confidentiality may, if specified in the insurance terms and conditions, also extend to the insurance provider.13

12 Section 2(6) of the Code of Professional Conduct. 13 The Bar Association’s Commentary to Section 2(2)(1) of the Code of Professional Conduct.

551

Professional secrecy of lawyers in Europe

25. The Code of Professional Conduct also allows for an exception from the duty of confidentiality to be made in order to enable an advocate to make a legitimate claim for compensation for legal fees charged to the client.14 According to the Commentary to the rule, it should, however, be noted that this exception only applies to claims arising from an existing assignment and not claims against a client based on other circumstances. 26. Finally, there is also an exception to the duty of confidentiality in cases of exceptional need where there is a danger to human life or health or where the advocate has received information about someone’s preparation or planning of a serious crime.15 However, this exception does not, according to Decision DN 103/2007 of the Bar Association’s Disciplinary Committee, extend to information a client may disclose to the advocate about a planned suicide. In the above-mentioned case the advocate, out of concern, contacted the client’s mother and disclosed the information given to him by the client. The Disciplinary Committee found this disclosure to constitute a violation of the duty of confidentiality.

E

Law firms 27. In Sweden there are two types of law firm: law firms set up by lawyers who are not members of the Bar Association and law firms set up by advocates (i.e. members of the Bar). The rules described below are only applicable to law firms set up by advocates. 28. According to Section 7(1) of the Code of Professional Conduct, advocates must so organise their work as not to compromise their independence. According to Chapter 8, Section 4, of the Code of Judicial Procedure, only advocates are permitted to be partners or shareholders in a law firm unless the Board of the Bar Association grants a waiver. Furthermore, according to Section 7(5)(1) of the Code of Professional Conduct, the members of the board of directors of such a law firm must be advocates. However, with permission from the Board of the Bar Association the managing director of a law firm may, according to Section 7(5)(2) of the Code of Professional Conduct, be someone other than an advocate provided that the managing director acts in accordance with the Code of Professional Conduct. A managing director who is not an advocate may also be a shareholder in the law firm provided that the Board of the Bar Association gives its permission and under the condition that the director’s holdings in the firm exceed neither 10 per cent of the capital nor 10 per cent of the voting shares. In order for a non-advocate managing director to be a shareholder it is also required that he or she undertake an obligation to 14 The Bar Association’s Commentary to Section 2(2)(1) of the Code of Professional Conduct. 15 Peyron, Advokatetik: en praxisgenomg˚ang, 168.

552

Sweden

sell or transfer his or her shares to the other shareholders at the end of his or her employment.16 It should also be noted that Chinese walls are not accepted as a way of dealing with conflict-of-interest issues in Sweden. 29. According to Section 2(2)(2) of the Code of Professional Conduct, advocates have a duty of discretion. The advocate must not, without cause, make enquiries about assignments handled by the firm for which he or she works if the advocate is not personally charged with such work. The purpose of this regulation, however, is not to prevent the sharing of information between advocates in a law firm in situations where there are good reasons for this exchange of information. Hence it is generally accepted that the duty of discretion and confidentiality does not prevent advocates within a law firm from working together on a case or from seeking advice from each other.17

F

Legal assistants and staff 30. Legal assistants and staff employed by a Swedish advocate who are not members of the Bar Association are not directly subject to the duty of confidentiality. However, as mentioned above, according to Section 2(2)(3) of the Code of Professional Conduct, an advocate is under an obligation to ensure that his or her employees exercise the same duty of confidentiality and discretion applicable to the advocate. According to Section 7(6)(2) of the Code of Professional Conduct, the advocate must supervise his or her employees in order to ensure that the employees act in compliance with the Code of Professional Conduct. If the advocate fails in his or her supervisory duty, then he or she bears professional liability for breaches of the Code of Professional Conduct by the employees. 31. The advocate’s liability for violations of the duty of confidentiality by his or her secretarial staff is strict.18 The advocate’s liability for breaches by experienced associate lawyers is, although not strict, extensive.19

G

External service providers 32. External service providers are not subject to the duty of confidentiality. If an advocate engages an external service provider, the advocate should ensure that the external service provider signs a non-disclosure agreement in relation to information the provider might learn in the course of the engagement. 16 Section 7(5)(3) of the Code of Professional Conduct. 17 The Bar Association’s Commentary to Section 2(2)(2) of the Code of Professional Conduct. 18 Peyron, Advokatetik: en praxisgenomg˚ang, 27; and Decision 158/2006 of the Bar Association’s Disciplinary Committee. 19 Peyron, Advokatetik: en praxisgenomg˚ang, 29–30.

553

Professional secrecy of lawyers in Europe

H

Multidisciplinary associations 33. Multidisciplinary associations are not allowed in Sweden. Section 7(4)(1) of the Code of Professional Conduct states that if an advocate conducts his or her legal practice in the form of a corporation or association, then this corporation or association cannot carry out any other business activities than a legal practice. Furthermore, according to Section 7(7)(1) and 7(7)(5) of the Code of Professional Conduct an advocate is not allowed to form a partnership with anyone but other advocates.

2

History 34. Historically and until quite recently, the duty of confidentiality was not regulated in statutory law in Sweden. The duty of confidentiality was, rather, an unwritten rule for which some legal basis could be found in the Criminal Code and in the rules regulating the hearing of witnesses.20 35. In 1936 the duty of confidentiality was codified in the Charter of the Swedish Bar Association.21 In 1948 the current Code of Judicial Procedure was implemented. The Code established that advocates were bound to act in accordance with the rules of professional conduct. The duty of confidentiality was thus not specifically mentioned in the Code. However, through the reference to an advocate’s duty to act in accordance with the rules of professional conduct it was established that advocates were legally bound to act in accordance with the rules and regulations of the Bar Association. As the duty of confidentiality had at this time been established in the rules and regulations of the Bar Association, the Code of Judicial Procedure did provide a statutory basis for the duty of confidentiality. In 1980 the duty of confidentiality was specifically regulated in statutory law in Sweden.22

3

Supervision

A

The Bar Association 36. The responsibility to supervise advocates lies with the Board of the Bar Association and with its Disciplinary Committee. According to Chapter 8, Section 6, of the Code of Judicial Procedure, the Board and the Committee must 20 Wiklund, God advokatsed, 299. 21 Ibid., 299–300. 22 P. Fitger, R¨atteg˚angsbalken, Stockholm: Nordstedts Juridik, 2012, Zeteo, Commentary to Chapter 8, Section 4.

554

Sweden

supervise that advocates, in court litigations and in their other activities, satisfy the duties imposed upon them. In order to fulfil its supervisory duty, the Board can request information from advocates. Advocates have a duty to provide the Board with the requested information. A person who has participated in supervisory proceedings at the Bar Association is prohibited from making any unauthorised disclosures of information acquired in the course of such proceedings concerning anyone’s personal or financial circumstances.23 37. The Board of the Bar Association has overall responsibility for matters falling within the Bar Association’s mandate, whilst the Disciplinary Committee is responsible for disciplinary proceedings against members of the Bar. The committee consists of eleven members, of whom three are not advocates but public representatives appointed by the Government. If the committee finds that an advocate has intentionally committed a wrongful act or acted dishonestly, they can disbar the advocate. If the committee finds that the advocate has neglected his or her professional duties, they can issue the advocate a warning or reminder (see no 42 of this chapter). 38. A disciplinary hearing against an advocate can be initiated following a complaint made by a client or any other person involved in the matter which the complaint relates to. A disciplinary proceeding may also be initiated by the Board of the Bar Association.24 A complaint against an advocate can be based on any breach of professional ethics on the part of the advocate. As mentioned above, what is considered professional ethics encompasses not only the regulations in the Charter of the Swedish Bar Association or its Code of Professional Conduct but also the jurisprudence of the Bar Association’s Disciplinary Committee. According to Chapter 8, Section 6, of the Code of Judicial Procedure, the Swedish Chancellor of Justice may also request the Disciplinary Committee to implement measures against an advocate who neglects his duties.

B

The courts 39. The responsibility to supervise advocates lies with the Bar Association. The courts have the authority to deal with criminal charges against advocates. The courts also have jurisdiction to hear claims for professional liability. Finally, the Supreme Court is the court of second and last instance in disciplinary cases against advocates. If a court finds an attorney (advocates as well as lawyers) to be dishonest, lacking in skill, imprudent or otherwise unsuitable, it should, according to 23 Chapter 8, Section 6, of the Code of Judicial Procedure. 24 Art. 40 Charter of the Swedish Bar Association.

555

Professional secrecy of lawyers in Europe

Chapter 12, Section 5, of the Code of Judicial Procedure, dismiss the attorney from the case. If there is reason, the court may also declare the attorney disqualified to serve as an attorney before that court either for a certain period or until further notice.

4

Sanctions

A

Proceedings and sanctions 40. If an advocate does not observe his or her duty of confidentiality, disciplinary or even criminal sanctions can be brought against him or her. In addition, claims for civil damages can also be made against the advocate.

a

Disciplinary proceedings and sanctions

41. As mentioned above, a complaint against an advocate may be brought by the client or any other person involved in the matter to which the complaint relates. The Board of the Bar Association may also initiate disciplinary proceedings against an advocate. 42. If the Disciplinary Committee finds that an advocate is in violation of his or her duty as an advocate, it has four sanctions at its disposal. If the committee finds that an advocate in his or her practice has intentionally committed a wrongful act or otherwise acted dishonestly, it should, according to Chapter 8, Section 7, of the Code of Judicial Procedure, disbar the advocate. However, if the circumstances are extenuating, the committee may instead issue a warning to the advocate. If the committee decides to disbar the advocate it can order that the decision take effect immediately. If the committee finds that the advocate has neglected his or her professional responsibilities, it may issue the advocate a warning or a reminder. However, if there are aggravating circumstances, the Disciplinary Committee may disbar the advocate. An advocate who is issued a warning may also, if there is special reason, be ordered by the Disciplinary Committee to pay a monetary penalty to the Bar Association. Instead of issuing an advocate a reminder, the Disciplinary Committee may, if it considers this to be sufficient, express the opinion that the advocate has acted inappropriately. 43. The proceedings of the Disciplinary Committee are usually conducted in writing. If the Committee finds it necessary it can, however, hold an oral hearing. If the case may result in the disbarment of the advocate, an oral hearing must be held. Before the Disciplinary Committee makes its decision the advocate must be provided with the opportunity to submit a response to the complaint against him or her. The Disciplinary Committee may order the advocate to disclose documents it considers to be relevant to the case. The advocate has a corresponding duty to disclose the requested documents to the committee. 556

Sweden

Finally, if the advocate does not have a defence counsel, the Disciplinary Committee may appoint one for him or her if it finds this to be necessary.25 44. If an advocate is disbarred by a decision of the Disciplinary Committee or the Board of the Bar Association, he or she can, according to Chapter 8, Section 8, of the Code of Judicial Procedure, appeal the decision to the Supreme Court. Decisions resulting in other sanctions than disbarment can be appealed to the Supreme Court by the chancellor of justice. b

Criminal proceedings and sanctions

45. If an advocate breaches the duty of confidentiality, criminal sanctions can be brought against him or her. Chapter 20, Section 3, of the Criminal Code states that a person who discloses information which he or she is duty-bound by law or other statutory instrument to keep secret, or if he or she unlawfully makes use of such secret, he or she shall be sentenced for breach of professional confidentiality to a fine or imprisonment for up to one year. c

Civil proceedings and damages

46. It is for the courts to handle civil claims for damages. The Bar Association has no authority to award damages. The legal basis for claims for damages is decided in accordance with general principles on contractual liability for damages.

B

Relationship between criminal sanctions and disciplinary sanctions 47. In theory, disciplinary and criminal sanctions are imposed independently and have no effect on each other. However, as is further discussed below, criminal sanctions are reserved for certain kinds of breach of confidentiality. Subsequently, criminal and disciplinary sanctions rarely, if ever, overlap when it comes to breaches of the duty of confidentiality. For other crimes, however, the sanctions can overlap. According to the Code of Judicial Procedure, Chapter 8, Section 7, it is only the Chancellor of Justice who can prosecute an advocate for breach of his or her duty of confidentiality. Furthermore, such prosecution may only be instituted if this is justified from the perspective of public interest. According to the preparatory works of the regulation, a violation by an advocate of his or her duty of confidentiality should primarily be dealt with through the Bar Association’s disciplinary proceedings. Subsequently, criminal proceedings should only be initiated when an advocate has breached confidentiality by disclosing information either by publishing it, or by handing the information over for someone else to publish. The reason for this is that it is not possible to handle 25 Art. 43 Charter of the Swedish Bar Association.

557

Professional secrecy of lawyers in Europe

such a breach of confidentiality as a disciplinary matter as it involves questions relating to the freedom of the press.26

5

Duty to provide information to the authorities

A

Money laundering and terrorism 48. The purpose of the Money Laundering and Terrorist Financing Prevention Act is to prevent financial activity and other commercial activity from being used for laundering money or financing terrorism. 49. The Act imposes a duty on certain business providers, including advocates and other lawyers, to conduct customer due-diligence checks, the scope of which must be tailored to the risk of money laundering or terrorist financing. Chapter 3, Section 1, of the Act states that these business providers must review client transactions in order to detect such transactions which they suspect, or have reasonable ground to suspect, may constitute an element of money laundering or terrorist financing. Furthermore, where suspicion remains following a closer analysis, information regarding all circumstances which may indicate money laundering or terrorist financing must be provided to the Swedish National Police Board without delay. Finally, service providers must also, upon demand from the Swedish National Police Board, without delay submit all information necessary for an investigation of money laundering or terrorist financing. However, according to Chapter 3, Section 2, of the Act, members of the Swedish Bar Association, associates at a law firm and other independent legal professionals are not required to provide information pursuant to Chapter 3, Section 1, concerning that with which they have been entrusted when representing a client in a legal proceeding. Advice given to a client in order to initiate or avoid legal proceedings is also included in the exception stated above. Furthermore, the exception applies regardless of whether the lawyer has received the information before, during or after such legal proceedings. Finally, according to Chapter 3, Section 3, of the Act, members of the Swedish Bar Association, associates at a law firm and other independent legal professionals do not have an obligation to report information relating to a client which they have received in connection with assessing the client’s legal situation.

B

The Enforcement Code 50. As mentioned above (see no 13 of this chapter), in the event that a company declares bankruptcy the advocate’s duty of confidentiality remains in relation to the company in bankruptcy, as well as to its previous representatives. 26 Government Bill, Prop. 1979/80:2, part A, 396.

558

Sweden

Consequently, the advocate must not disclose to the court-appointed receiver information relating to the former representatives without the consent of the parties owed the duty of confidentiality.27 This duty of confidentiality does not, however, extend to non-disclosure of property of the debtor. According to Chapter 4, Section 15, of the Enforcement Code, third parties, i.e. including advocates, must, on request by the Enforcement Authority, inform the Authority of whether they hold or control any property of the debtor or whether they have any other dealings with the debtor of significance for the distraint.

C

The Criminal Code 51. Failure to report certain aggravated crimes is criminalised in Sweden. Chapter 23, Section 6, of the Criminal Code states that a person who omits to report or reveal certain aggravated crimes that are in the process of being committed, when this could have been done without danger to himself or herself or to anyone in a close relationship to him or her, shall be sentenced for failure to reveal the crime. Consequently, advocates (including defence attorneys) have a duty to inform the authorities of certain ongoing aggravated criminal acts.

6

Treatment of a lawyer’s documents and correspondence in the context of judicial investigations 52. Treatment of a lawyer’s documents is regulated in Chapter 27, Section 2, of the Code of Judicial Procedure. According to this paragraph, if a document is assumed to contain information of such nature that the advocate may not disclose it under testimony (see no 60 of this chapter), then the document may not be seized from the possession of the advocate or from the possession of the person who is owed the duty of confidentiality. 53. According to Chapter 5, Section 1, of the Competition Act, the Swedish Competition Authority may order a company or person to produce information and documents if it considers this to be necessary in order for it to perform its duties. However, according to Chapter 5, Section 11, of the Competition Act, such measures may not be taken in respect of a written document the contents of which could be anticipated to be such as to preclude an advocate or any of his or her associates from being heard as a witness in relation thereto, when the document is in the possession of the advocate, his or her associates or the person who is owed the duty of confidentiality. Chapter 5, Section 11, of the Competition Act furthermore states that when the Competition Authority believes that a particular document should fall within the scope of its investigation and the party to whom the measure pertains claims that the document 27 Peyron, Advokatetik: en praxisgenomg˚ang, 171.

559

Professional secrecy of lawyers in Europe

is privileged, the document shall immediately be sealed and delivered by the Competition Authority to the Stockholm District Court as soon as possible. The District Court shall thereafter determine, without delay, whether the document should be included in the Competition Authority’s investigation. 54. Finally, according to Chapter 38, Section 2, of the Code of Judicial Procedure, anyone in possession of a written document that can be assumed to be of importance as evidence is obliged to produce it. However, according to the same section of the Code, an advocate may not produce a written document as evidence if it can be assumed that its content is such that the advocate may not be heard as a witness thereto. According to Chapter 36, Section 5, of the Code of Judicial Procedure, advocates or their associates may not be heard as witnesses concerning matters entrusted to them in their professional capacity. Consequently, advocates are not obliged to produce documents for evidence if such documents have been entrusted to them in their official capacity (unless the case is a criminal case where the offence is punishable by imprisonment of two years or more; see no 23 of this chapter).

7

Search of a lawyer’s office 55. If there is reason to believe that an offence punishable by imprisonment has been committed, then houses, rooms or closed storage spaces (i.e. including a lawyer’s office or home) may be searched in order to search for objects subject to seizure. However, as stated above, according to Chapter 27, Section 2, of the Code of Judicial Procedure, a document may not be seized from an advocate if it is assumed to contain confidential information of such nature as to prevent the advocate from being heard as a witness. According to Chapter 36, Section 5, of the Code of Judicial Procedure, advocates or their associates may not be heard as witnesses concerning matters entrusted to them in their professional capacity. The prohibition on seizure of documents from an advocate thus encompasses all written documents entrusted to the advocate in his or her professional capacity (unless the search is carried out for the prosecution of an offence which is punishable by imprisonment of two years or more; see no 23 of this chapter). 56. According to case law of the Supreme Court and the Supreme Administrative Court, the prohibition on seizure of confidential documents from an advocate should be interpreted narrowly in order to uphold the professional confidentiality of advocates. In respect of the advocate’s burden of proof it is sufficient if the advocate makes it probable that the information is confidential and therefore not subject to disclosure.28 28 Case NJA 1977, 403; Case NJA 1990, 537; and Case NJA 2010, 122, of the Supreme Court; ˚ 2001, 67, of the Supreme Administrative Court. and Case RA

560

Sweden

57. Investigation leaders, prosecutors and the courts are, according to Chapter 28, Section 4, of the Code of Judicial Procedure, authorised to issue orders permitting a search of premises. If the search is likely to be extensive or cause extraordinary inconvenience to the person whose premises are to be searched, the measure should, however, not be taken without a court order. When it comes to the search of a law firm’s premises it is considered to be a general principle that the measure should not be taken without a court order. 58. The Swedish Economic Crime Authority has in recent years conducted a few searches of the premises of law firms. In a recent case an associate lawyer was suspected of insider trading. In order to investigate the alleged crime the Swedish Economic Crime Authority was granted permission by a court to conduct a five-hour search of one of the law firm’s departments.

8

Tapping of telephone conversations with a lawyer 59. According to Chapter 27, Section 18, of the Code of Judicial Procedure, secret wiretapping may be used in the investigation either of offences which carry a minimum prison sentence of two years or more, or of offences which, even if they do not carry a minimum prison sentence of two years or more, can be assumed to result in more than two years’ imprisonment. Furthermore, secret wiretapping may only be conducted if someone is reasonably suspected of such an offence and the measure is of exceptional importance to the inquiry.29 Consequently, the requirement that the offence must be punishable by imprisonment of two years or more means that the regulation is congruent with the witness prohibition. Telephone conversations or other telecommunications between the suspect and defence counsel may not, according to Chapter 27, Section 22, of the Code of Judicial Procedure, be subject to secret wiretapping. If, during the wiretapping, it appears that it is such a conversation or communication, the surveillance shall be discontinued. This prohibition is thus limited to defence counsels. However, in most cases the suspect will not have a defence counsel at the time when the wiretapping is carried out. The prohibition is therefore of limited value.

9

The lawyer as witness 60. According to Chapter 36, Section 5, of the Code of Judicial Procedure, advocates or their associates may not be heard as witnesses concerning matters entrusted to them in their professional capacity, or found out by them in relation thereto, unless there is a legal obligation or authorisation for them to testify, or 29 Chapter 27, Section 20, of the Code of Judicial Procedure.

561

Professional secrecy of lawyers in Europe

the person for whose benefit the duty of confidentiality is imposed consents. As mentioned above, advocates, with the exception of defence counsels, are under an obligation to give evidence in criminal cases where the offence is punishable by imprisonment of two years or more. Advocates are thus prohibited from testifying about confidential information given to them in their professional capacity or found out by them in relation thereto. By the term ‘given to them in their professional capacity’ it is understood that the information is given either with the request or with the expectation that it will be kept confidential. The information may be given either in writing or orally. The meaning of the phrase ‘found out in relation thereto’ has not been clarified in case law and there is no consensus on the meaning of the phrase in legal writing. Some authors argue that it means that all information found out by the advocate in his or her legal capacity is confidential, while others argue that in order for the information to be confidential it has to be found out by the advocate in connection with other information entrusted to him or her by the client.30

10

The lawyer and the press 61. Swedish advocates can, with the client’s consent, speak to the press in order to defend the client against allegations made in the press, or otherwise represent the client in such matters. An advocate may also give a name of a client and disclose the nature of the engagement for marketing purposes if he or she has the client’s consent.

11

Powers of the tax administration and other authorities 62. According to the Taxation Procedure Act, the Taxation Authority has authority to conduct audits and injunctions. However, according to Chapter 47, Section 2, of the Tax Procedure Act, documents which may not be subject to seizure according to the Code of Judicial Procedure (see nos 55 et seq. of this chapter) must be excluded from audit and other injunctions by the Taxation Authority.

12

State security service 63. The Swedish state security service (S¨akerhetspolisen) must follow the same rules and regulations regarding investigative methods as the rest of the police force. As such, the duty of confidentiality must be given the same consideration and protection even if the investigation is conducted by the Security Service. 30 Fitger, R¨atteg˚angsbalken, Commentary to Chapter 36, Section 5.

562

32 Switzerland claudio bazzani, roman richers ∗ Homburger AG

Preliminary note 564 1 Scope of and limitations on professional secrecy 564 A Statutory basis and implications 564 B Scope 567 C Persons subject to the duty of professional secrecy 569 D Limitations and derogations 570 a Limitations 570 b Derogations 570 E Law firms 571 F Legal assistants and staff 572 G External service providers 572 H Multidisciplinary associations 572 2 History 573 3 Supervision 573 A The supervisory authority 573 B The Bar Association 574 4 Sanctions 575 A Proceedings and sanctions 575 a Disciplinary proceedings and sanctions 575 b Criminal proceedings and sanctions 577 c Civil proceedings and damages 577 B Relationship between criminal sanctions and disciplinary sanctions 577 5 Duty to provide information to the authorities 578 A Money laundering 578 B Debt collection and bankruptcy 578 C Data protection 579 6 Treatment of a lawyer’s documents and correspondence in the context of judicial investigations 579 7 Search of a lawyer’s office 580 8 Tapping of telephone conversations with a lawyer 580 9 The lawyer as witness 581 ∗ The authors would like to thank their colleagues Markus Wirth and Jonathan Barnett for kindly reviewing the drafts of this chapter.

563

Professional secrecy of lawyers in Europe

10 The lawyer and the press 582 11 Powers of the tax administration and other public authorities 12 State security service 583

582

Preliminary note 1. Swiss lawyers who represent clients before courts must be registered in a cantonal bar register. They must comply with the rules of professional conduct, are subject to the duty of professional secrecy (attorney–client privilege) and supervised by cantonal supervisory authorities. The Bar registers are maintained on a cantonal level; however, each registered lawyer is entitled to represent clients before courts throughout Switzerland. Only partners and employees of law firms or self-employed lawyers may register in a cantonal bar register. 2. In addition, foreign lawyers from a Member State of the European Union and the European Free Trade Association may represent clients before Swiss courts as either registered foreign lawyers in Switzerland or on an ad hoc basis under the principle of free movement of services granted by the bilateral treaty between Switzerland and the European Union on the Free Movement of Persons. Like registered Swiss lawyers, the foreign lawyers representing clients before Swiss courts must comply with the rules of professional conduct, are subject to the duty of professional secrecy and are supervised by the cantonal supervisory authorities. 3. Lawyers who work for a company (corporate in-house counsels), the state or a public organisation cannot register with the cantonal bar registers. In contrast to the registered lawyers, they may not represent clients before courts and are not subject to a duty of professional secrecy. 4. This chapter focuses on lawyers who are authorised to represent clients before Swiss courts and their duty of professional secrecy. Unless indicated otherwise, the term ‘lawyer’ used in this chapter refers to lawyers who are entitled to represent clients before courts.

1

Scope of and limitations on professional secrecy

A

Statutory basis and implications 5. It is generally accepted in Switzerland that the duty of professional secrecy owed by lawyers to their clients is an important principle of the Swiss legal system. The Federal Constitution of the Swiss Confederation (FCSC) guarantees, at least indirectly, the professional secrecy of lawyers. This guarantee is derived from the constitutional right of personal freedom pursuant to

564

Switzerland

Article 10(2) FCSC and the constitutional right to privacy pursuant to Article 13 FCSC,1 and is part of the constitutional guarantees for judicial proceedings provided for in Article 30 FCSC.2 Further, it is recognised in international law, in particular by the European Convention on Human Rights. 6. At a statutory level, a lawyer’s duty of professional secrecy is governed by Article 321 Penal Code (PC)3 and Article 13 Free Movement of Lawyers Act (FMLA).4 7. Pursuant to Article 321(1) PC, a lawyer (or an auxiliary to a lawyer, such as the lawyer’s assistant or an external service provider)5 who discloses confidential information which has been confided to him/her in his/her professional capacity or which has come to his/her knowledge in the practice of his/her profession shall be punished with imprisonment or a monetary penalty (see no 45 of this chapter). A breach of professional secrecy following the termination of professional employment remains an offence. Because the duty of professional secrecy is intended to protect the client, a violation of Article 321(1) PC is only prosecuted based on a criminal complaint filed by the client.6 No offence is committed if the lawyer discloses the information based on the client’s consent, based on a written release from the lawyer’s supervisory authority or if disclosure is required pursuant to the applicable law.7

1 Decision of the Swiss Federal Tribunal, 20 April 2000, 2A.247/2000. 2 H. Nater and G. G. Zindel, Kommentar zum Anwaltsgesetz, published by W. Fellmann, G. G. Zindel, 2nd edn, Zurich: Schulthess Juristische Medien AG, 2011, no 7 ad Art. 13 FMLA; see further K. Schiller, Schweizerisches Anwaltsrecht, Zurich: Schulthess Juristische Medien AG, 2009, 17–19. 3 Art. 321(1) PC reads as follows (unofficial translation): ‘Any person who in his capacity as a member of the clergy, lawyer, defence lawyer, notary, patent attorney, auditor subject to a duty of confidentiality under the Code of Obligations, doctor, dentist, pharmacist, midwife or auxiliary to any of the foregoing persons discloses confidential information that has been confided to him in his professional capacity or which has come to his knowledge in the practice of his profession shall be liable to imprisonment not exceeding three years or to a monetary penalty. A student who discloses confidential information that has come to his knowledge in the course of his studies is also liable to the foregoing penalties. A breach of professional confidentiality remains an offence following the termination of professional employment or of the studies.’ 4 Art. 13(1) FMLA reads as follows (unofficial translation): ‘Without time limitations and towards anyone, lawyers are subject to professional secrecy regarding anything that was entrusted to them as a consequence of their profession. A release does not oblige them to disclose entrusted secrets.’ 5 See further nos 24 and 33–4 of this chapter. 6 Nater and Zindel, Kommentar zum Anwaltsgesetz, no 12 ad Art. 13 FMLA; N. Oberholzer, Basler Kommentar Strafrecht II, published by M. A. Niggli, H. Wipr¨achtiger, 2nd edn, Basel: Helbing Lichtenhahn Verlag, 2007, no 26 ad Art. 321 PC. 7 Art. 321(2) and (3) PC; see further nos 27–31 of this chapter.

565

Professional secrecy of lawyers in Europe

8. Article 13(1) FMLA sets forth the lawyer’s duty of professional secrecy as a rule of professional conduct.8 This rule protects the same information as Article 321(1) PC.9 In addition, Article 13(2) FMLA obliges the lawyer to ensure that his/her auxiliary persons maintain the same level of professional secrecy. Finally, Article 13 FMLA expressly clarifies that a lawyer is not obliged to disclose information even in the event that he/she has been released from the duty of confidentiality (either by the client or by the supervisory authority) (see no 31 of this chapter). The rule of professional conduct pursuant to Article 13 FMLA is mirrored in Article 15 of the Ethical Code of the Swiss Bar Association. 9. Furthermore, the lawyer has a duty of confidentiality based on contract law. The agreement between the lawyer and the client obliges the lawyer to diligently and faithfully perform the business entrusted to him/her and thus to act in the interest of the client (Art. 398(2) Code of Obligations). This obligation includes a duty to keep the client’s information confidential, provided that the client wishes the information to be kept confidential.10 A similar duty of confidentiality also arises from the statutory protection of personal rights (Art. 28 of the Civil Code), which requires a lawyer to protect information that belongs to the private sphere of the client.11 10. A breach of the provisions governing the duty of professional secrecy outlined above may result in criminal sanctions, disciplinary sanctions and/or civil liability for damages and moral restitution. 11. Finally, the duty of professional secrecy pursuant to Article 321 PC and Article 13 FMLA is also reflected in the procedural rules that define the procedural consequences of professional secrecy. By way of example, Articles 160 and 163 of the Code of Civil Procedure (CCP) and Articles 264 and 171 of the Code of Criminal Procedure (CCrP) define who may invoke the duty of professional secrecy to refuse testimony or the production of documents before courts or authorities (see nos 51–3 of this chapter). Rules equivalent to the rules governing the production of privileged documents in civil procedures (see no 53 below) were introduced into all federal procedural laws, including the laws governing criminal, administrative and anti-trust proceedings.12 It is expected that these rules will enter into force in the first half of 2013. 8 In addition, some statutory cantonal laws contain rules on the lawyer’s professional secrecy obligation; see e.g. S. 8(2) of the Lawyers Act of the Canton of Lucerne. 9 Nater and Zindel, Kommentar zum Anwaltsgesetz, nos 16 and 85 ad Art. 13 FMLA; Schiller, Schweizerisches Anwaltsrecht, 95. 10 See W. Fellmann, Berner Kommentar, Volume VI/2/4, Bern: St¨ampfli Verlag AG, 1992, no 179 ad Art. 179 Code of Obligations. 11 Nater and Zindel, Kommentar zum Anwaltsgesetz, no 21 ad Art. 13 FMLA. 12 Federal Council Dispatch, 15 November 2011, BBl 2011, 8181–94.

566

Switzerland

B

Scope 12. The professional secrecy of lawyers covers any confidential information that has been confided by the client to the lawyer due to the lawyer’s profession or which has come to the lawyer’s knowledge in the practice of his/her profession. This includes, according to the predominant view, the name of the client and the fact that the client has retained the lawyer.13 13. It is generally accepted that information qualifies as confidential if two requirements are met. First, the information must not be publicly known and accessible. A stringent standard applies to this requirement. For example, the publication of information in the print media does not necessarily mean that the information is publicly known because the public may not have taken notice of the information and not every person necessarily has access to the media. Information that is accessible at any time on the Internet, however, leads to public knowledge of such information and is thus not deemed confidential.14 Second, for information to qualify as confidential, it is required that the client have an intention to keep the information confidential. In essence, the law presumes the client’s intention to keep information confidential unless he/she has (explicitly or implicitly) waived confidentiality.15 14. The confidential information must be confided by the client to a lawyer specifically in the latter’s capacity as a lawyer. Any information that the client confides to the lawyer based on an actual or potential lawyer–client relationship is also covered by professional secrecy, even if the client finally does not retain the lawyer. Not covered, however, is information falling outside the scope of the lawyer’s genuine professional capacity, such as information the client discloses to the lawyer in a private context or in connection with non-legal business activities of the lawyer.16 15. It is the act of confiding or disclosing the information that must relate to the lawyer’s profession and thus to an actual or potential lawyer–client relationship. Whether or not the content of the information relates to the matter for which the client has retained (or potentially will retain) the lawyer is irrelevant. Professional secrecy also covers information which is not relevant or 13 Nater and Zindel, Kommentar zum Anwaltsgesetz, no 86 ad Art. 13 FMLA; Schiller, Schweizerisches Anwaltsrecht, 102–3. According to a decision of the supervisory authority of the canton of Zurich, however, professional secrecy does not protect the name of the client and the fact that the client has retained the lawyer – at least in the event the lawyer is disclosing this information in debt collection proceedings against his/her client for unpaid fees and expenses. See Decision of the Lawyer’s Supervisory Authority of the Canton of Zurich, 2 September 2004, ZR 104/2005 no 20. 14 Nater and Zindel, Kommentar zum Anwaltsgesetz, no 88 ad Art. 13 FMLA. 15 Ibid., nos 87–9 ad Art. 13 FMLA; Schiller, Schweizerisches Anwaltsrecht, 103–6. 16 Schiller, Schweizerisches Anwaltsrecht, 107.

567

Professional secrecy of lawyers in Europe

not important to the matter for which the lawyer has been retained. Furthermore, it is not required that the information be confided by the client itself. Any information that third parties, with the knowledge and consent of the client, disclose to the lawyer is deemed confided by the client to the lawyer and thus protected by professional secrecy.17 16. In addition to the information confided by the client, professional secrecy protects any information which has come to the lawyer’s knowledge in connection with a particular matter for which he/she has been retained by the client. The required connection is twofold. The information must be obtained in connection with the particular matter for which the lawyer has been retained and the information itself must relate to such matter. Information which has come to a lawyer’s knowledge in connection with other matters that the lawyer is working on is not covered by professional secrecy even if such information relates to the particular matter of the client. The same holds true for information that the lawyer learns in connection with his/her non-legal business activities or in his/her private capacity.18 17. Provided that there is a connection to a particular lawyer–client relationship, it is generally accepted that the following confidential information falls under the lawyer’s professional secrecy: (i) the lawyer’s own assessments and information, regardless of from whom and in what manner the lawyer learnt of the information; (ii) information received from the opposing party, even in the event the information is against the client’s interest and became known by the lawyer against the client’s wish; and (iii) information about the relationship between the lawyer and his/her client.19 18. Confidential information is, however, only protected if the lawyer learnt the information in his/her genuine capacity as a lawyer, which includes, amongst other things, (i) representing and defending clients before courts and authorities, (ii) counselling clients on legal issues, (iii) negotiating and concluding legal transactions, (iv) drafting legal documents and legal opinions, (v) providing legal advice and (vi) acting as an escrow agent or mediator.20 By contrast, not covered by professional secrecy is information the lawyer learnt in connection with his/her non-legal business activities. This includes, amongst other things, information he/she learnt in his/her capacity as (i) a member of a board of directors,21 (ii) an asset manager or financial adviser,22 (iii) an arbitrator,

17 19 20 21

Ibid., 107–8. 18 Ibid., 108–9. Nater and Zindel, Kommentar zum Anwaltsgesetz, no 103 ad Art. 13 FMLA. Ibid., no 121 ad Art. 13 FMLA. See, for example, Decision of the Swiss Federal Tribunal, 16 October 1989, FDT 115 Ia 197, 200. 22 Decision of the Swiss Federal Tribunal, 29 December 1986, FDT 112 Ib 606, 608.

568

Switzerland

(iv) an adviser on non-legal matters, (v) a fiduciary or financial controller, (vi) a financial intermediary23 and (vii) a real-estate agent.24 19. Protected information is confidential regardless of the means used to communicate or store it. Confidential information may therefore include the correspondence between the client and the lawyer, handnotes of the lawyer, audio and video tapes and electronic storage devices.25 20. For a data medium to qualify as confidential, it is irrelevant whether it is in the custody of the lawyer, the client or a third party. By way of example, the correspondence between the lawyer and the client remains confidential even if it is in the hands of the client. Another question arises, however, whether the applicable procedural laws protect the confidentiality of information which is not in the custody of the lawyer.26

C

Persons subject to the duty of professional secrecy 21. Any lawyer who is registered in a Swiss cantonal lawyers’ register and thus authorised by law to represent clients before courts and authorities is subject to the lawyer’s duty of professional secrecy pursuant to Article 13 FMLA and Article 321 PC, regardless of whether the lawyer provides legal advice or represents clients before courts or authorities.27 22. Lawyers who are not registered in a Swiss cantonal lawyers’ register may not represent clients before courts and authorities and are not subject to Article 13 FMLA.28 However, to the extent they are providing legal services to their clients in a capacity as lawyers in private practice, they are subject to professional secrecy pursuant to Article 321 PC.29 By contrast, the duty of professional secrecy does not apply to corporate in-house counsel.30 23. The duty of professional secrecy further applies to foreign lawyers from a Member State of the European Union and the European Free Trade Association who represent clients before Swiss courts as either registered foreign lawyers in Switzerland or on an ad hoc basis under the principle of free movement of

23 24 25 26 27 28

Decision of the Swiss Federal Tribunal, 9 November 2005, FDT 132 II 103, 106. Nater and Zindel, Kommentar zum Anwaltsgesetz, no 122 ad Art. 13 FMLA. Schiller, Schweizerisches Anwaltsrecht, 110. Ibid., 110; see further nos 51–3 of this chapter. Nater and Zindel, Kommentar zum Anwaltsgesetz, nos 26 and 27 ad Art. 13 FMLA. Some cantonal laws, however, extend the duty of professional secrecy pursuant to Article 13 FMLA to non-registered lawyers (see e.g., S. 8(2) of the Lawyers Act of the Canton of Lucerne and S. 14(1) of the Lawyers Act of the Canton of Zurich). 29 Nater and Zindel, Kommentar zum Anwaltsgesetz, no 28. 30 Schiller, Schweizerisches Anwaltsrecht, 99.

569

Professional secrecy of lawyers in Europe

services granted by the bilateral treaty between Switzerland and the European Union on the Free Movement of Persons.31 24. Finally, any auxiliary to a lawyer is subject to the professional secrecy of the lawyer pursuant to Article 321 PC (see no 7 of this chapter). This includes any person who supports the lawyer’s professional activities as a lawyer and who potentially has access to information covered by professional secrecy – such as administrative assistants, cleaners or other personnel of the lawyer, as well as experts or translators who support the lawyer on a case-bycase basis.32

D

Limitations and derogations

a

Limitations

25. Article 312 PC provides that no offence is committed by the lawyer if the disclosure of confidential information is required pursuant to the applicable law (see no 7 of this chapter). This implies the existence of reporting or disclosure obligations. However, neither federal nor cantonal laws provide for reporting or disclosure obligations which require a lawyer to disclose information subject to professional secrecy. Rather, it is well established that no one may force a lawyer to disclose information protected by professional secrecy – not even courts and authorities.33 26. However, the abuse of professional secrecy by the client is not protected. A client may, for example, not hide incriminating evidence from authorities by consigning it to a lawyer. Law-enforcement authorities may confiscate such evidence at the lawyer’s offices, provided the evidence was previously in the custody of the client (or third parties) and could have been confiscated there. The same holds true for documents that the client is legally obliged to produce before courts.34 Further, lawyers may obviously not hide behind professional secrecy to suppress a crime they have committed themselves (see nos 30 and 55 of this chapter). b

Derogations

27. Since professional secrecy is part of the contractual relationship between the client and the lawyer (see no 9 of this chapter), the client may explicitly or implicitly waive its secrecy rights. The client may revoke this waiver at any time.35 31 Nater and Zindel, Kommentar zum Anwaltsgesetz, no 31 ad Art. 13 FMLA; Schiller, Schweizerisches Anwaltsrecht, 97. 32 Schiller, Schweizerisches Anwaltsrecht, 124. 33 Ibid., 96 and 143. 34 Ibid., 175. 35 Nater and Zindel, Kommentar zum Anwaltsgesetz, no 135 ad Art. 13 FMLA.

570

Switzerland

28. In the event the lawyer wishes to disclose confidential information but cannot obtain a waiver from the client, the lawyer may request the supervisory authority to release him or her from the duty of professional secrecy. This may be the case if the client is not available to consent to a disclosure or abusively refuses to waive the secrecy rights. Upon request of the lawyer, the supervisory authority grants the release if the interests of the lawyer in disclosing the confidential information significantly prevail over the interests of the client in keeping the information confidential.36 The only reasons Swiss law provides for a release are (i) an abuse of the lawyer’s professional secrecy by the client, (ii) self-defence or a state of necessity or (iii) the interests of the client.37 29. Only under exceptional circumstances may the lawyer on his/her own decide whether to disclose confidential information without having obtained a release by the supervisory authority. This is in particular the case if it is not possible for the lawyer to obtain a timely waiver or a release, as, for example, in a self-defence situation.38 Such circumstances are, however, exceedingly rare. 30. A lawyer may in particular not simply rely on privileged information to defend him-/herself in a criminal proceeding conducted against him/her personally. Rather, the lawyer has to first seek release from the confidentiality obligation by the client, or, if the client refuses, from the supervisory authority, before being allowed to rely on privileged information for defence purposes.39 Even if released from the duty of confidentiality, the lawyer should only make use of privileged information to the extent this is necessary for defence purposes.40 31. A waiver from the client and a release from the supervisory authority preclude the violation of the duty of professional secrecy in case of disclosure. However, both do not oblige the lawyer to disclose confidential information before courts or authorities (Art. 13(1) FMLA; see further no 57 of this chapter).

E

Law firms 32. Lawyers who work in a law firm regularly have access to, and learn confidential information that relates to, matters on which other lawyers of the firm are working. As is the case for the lawyer responsible for a particular matter, 36 Ibid., no 137 ad Art. 13 FMLA; the legislator did not want to leave this balance-of-interest test to the lawyer and therefore vested the supervisory authority with the power to grant releases from the duty of professional secrecy. Schiller, Schweizerisches Anwaltsrecht, 142. 37 Schiller, Schweizerisches Anwaltsrecht, 142–3. 38 Ibid., 142. 39 Ibid., 159–6 and 170. 40 Ibid., 170. Art. 13 FMLA only grants the lawyer a right, not an obligation, to make use of privileged information. The lawyer’s contractual general duty of confidentiality would usually require the lawyer to exercise his or her discretion in the client’s interest to uphold confidentiality, unless disclosure is effectively required for defence purposes.

571

Professional secrecy of lawyers in Europe

the other lawyers at the firm are also subject to the same professional secrecy and must therefore keep any such information confidential.41 It is generally accepted that all lawyers working at a law firm are bound to professional secrecy towards all clients of the firm. Consequently, the sharing of confidential information within a law firm does not violate the duty of professional secrecy.42

F

Legal assistants and staff 33. As set out above (no 24 of this chapter), legal assistants and staff of the lawyer are – as auxiliaries to the lawyer – subject to the professional secrecy of the lawyer pursuant to Article 321 PC. They must keep confidential the information falling under professional secrecy.

G

External service providers 34. Like legal assistants and staff of the lawyer, external service providers who are retained by the lawyer qualify as auxiliaries within the meaning of Article 321 PC (see no 24 of this chapter). They are therefore subject to the professional secrecy of the lawyer and must keep any information falling under professional secrecy confidential.

H

Multidisciplinary associations 35. Supervisory authorities have accepted multidisciplinary associations between lawyers and non-lawyer specialists (e.g. tax experts) in the form of partnerships or corporate vehicles, provided that certain requirements are met. Amongst other things, the purpose of the association must be limited to the operation of a law firm, the services provided by the non-lawyers must be closely connected to the genuine professional capacity of a lawyer, and the association must permanently and unchangeably be controlled by registered lawyers.43 In addition, organisational measures must be implemented to protect information covered by the lawyers’ professional secrecy.44 Non-lawyer specialists of the association who support the lawyer in a particular matter qualify, like external experts, as auxiliaries within the meaning of Article 321 PC and are therefore subject to the lawyer’s professional secrecy. 41 Nater and Zindel, Kommentar zum Anwaltsgesetz, no 46 ad Art. 13 FMLA; Schiller, Schweizerisches Anwaltsrecht, 122. 42 Schiller, Schweizerisches Anwaltsrecht, 122. 43 See, for example, Decision of the Lawyer’s Supervisory Authority of the Canton of Zurich, 5 October 2006, ZR 105/2006, no 71; further decision of the Swiss Federal Tribunal, 7 September 2012, 2C-237/2011. 44 W. Fellmann, Kommentar zum Anwaltsgesetz, published by W. Fellmann, G. G. Zindel, 2nd edn, Zurich: Schulthess Juristische Medien AG, 2011, no 64 ad Art. 12 FMLA.

572

Switzerland

2

History 36. The lawyer’s professional secrecy is part of Swiss legal tradition.45 Prior to the enactment of a uniform penal code in 1937, the cantonal penal laws contained rather divergent and fragmentary prohibitions of a breach of professional secrecy. In some instances, they simultaneously addressed the breach of the secrecy obligations incumbent on the state authorities, which led to further inconsistencies.46 With the passing of the Penal Code of 21 December 1937, the criminal law provisions applicable to a breach of the lawyer’s professional secrecy were eventually harmonised throughout all of Switzerland.47 On the other hand, the harmonisation of the rules of professional conduct took considerably longer. Hence, professional secrecy as a rule of professional conduct was for a long time governed exclusively by the cantonal laws relating to the legal profession and by the rules of conduct of the cantonal bar associations. Only with the enactment of the FMLA in the year 2000 did the Swiss federal legislator introduce harmonised statutory provisions on the professional conduct of lawyers, including the obligation to safeguard professional secrecy (see further nos 6 and 8 of this chapter). 37. From the point of view of procedural law, professional secrecy was usually addressed in the cantonal laws on civil and criminal procedure. Since the enactment of the CCP and CCrP at the beginning of 2011, the same rules apply throughout Switzerland. With regard to procedural administrative law, however, there is still no full harmonisation (see further no 11 of this chapter).

3

Supervision

A

The supervisory authority 38. Under Swiss federal law, every canton is required to have an authority supervising ‘lawyers who represent parties before judicial authorities in their territory’ (Art. 14 FMLA). The organisation of this supervision is, however, within the discretion of the cantons, and they may, in particular, choose whether the authority shall be constituted exclusively of lawyers or whether it shall also comprise state representatives. In practice, all cantons have instituted independent supervisory bodies.48 45 46 47 48

Schiller, Schweizerisches Anwaltsrecht, 93. E. Hafter, Schweizerisches Strafrecht Besonderer Teil, Berlin: Springer Verlag, 1943, 845–6. Federal Council Dispatch, 23 July 1918, BBl 1918 IV 1. T. Poledna, Kommentar zum Anwaltsgesetz, published by W. Fellmann, G. G. Zindel, 2nd edn, Zurich: Schulthess Juristische Medien AG, 2011, no 1 ad Art. 14 FMLA.

573

Professional secrecy of lawyers in Europe

Proceedings before the supervisory authority are subject to cantonal law. However, any final cantonal decision can be appealed to the Swiss Federal Tribunal (Art. 86(2) Federal Tribunal Act (FTA)). While, according to federal law, the jurisdiction of the supervisory authority is only mandatory over lawyers representing clients before the courts in the territory of the respective canton, the cantonal law may extend the jurisdiction of the supervisory authority to other lawyers, and in particular to lawyers who act in a purely advisory role.49 Once the supervisory authority has jurisdiction over a lawyer, the scope of its supervision is unlimited, and in particular not limited to the lawyer’s forensic work. 39. The supervisory authority has various powers, among them in particular maintaining the lawyers’ register and conducting disciplinary proceedings against lawyers (see nos 41–4 of this chapter). The supervisory authority may also have further powers based on cantonal law. These powers may in particular include releasing lawyers from their duties of professional secrecy and issuing guidelines on the general behaviour of lawyers, as well as the Bar examination rules (see nos 28–31 of this chapter).

B

The Bar Association 40. Lawyers registered in the cantonal bar registries may also join the bar association of their canton. In most cantons, the bar associations are organised as associations in the sense of Swiss civil law (Vereine).50 As such, their rules and regulations apply only as civil law obligations to their members, and not to any non-members. The members of the cantonal bar associations are automatically also members of the Swiss Bar Association (itself a civil law Verein). In practice, the vast majority of Swiss lawyers are members of the respective cantonal bar associations and therefore of the Swiss Bar Association as well.51 The Swiss Bar Association has issued its own Rules of Conduct. While these rules are directly applicable only to members, they may also be taken

49 See, for example, Ss. 14, 21 and 10 of the Attorneys Act of the Canton of Zurich; Decision of the Supervisory Commission of the Canton of Zurich, 1 November 2007, ZR 107/2008, 80; Poledna, Kommentar zum Anwaltsgesetz, no 5 ad Art. 14 FMLA. 50 Schiller, Schweizerisches Anwaltsrecht, 8. An exception is, for example, the Canton of Ticino, where the bar association is at the same time also the supervisory authority; see Art. 19 Legge sull’avvocatura of the Canton of Ticino. 51 Schiller, Schweizerisches Anwaltsrecht, 8. This is also the case as certain bar associations require that all members of a law firm need to join the association if one lawyer is a member; see, for example, S. 3(2) of the statutes of the Zurich Bar Association.

574

Switzerland

into consideration to some extent by the Swiss Federal Tribunal when deciding whether a lawyer has breached his/her professional duties.52 The bar associations have their own disciplinary bodies. While their sanctions are only effective within the association, they can nonetheless issue warnings or reprimands and fine members. The harshest sanction is the expulsion of members from the association.

4

Sanctions

A

Proceedings and sanctions

a

Disciplinary proceedings and sanctions

41. According to Article 17 FMLA, the supervisory authority can order warnings, reprimands, fines of up to CHF 20,000, temporary suspensions from the Bar of up to two years and permanent expulsion from the Bar. These sanctions are intended to have both a general and a specific deterrence effect; moreover, they aim at excluding any person from practising law who is objectively unsuitable to do so.53 42. A disciplinary sanction requires that a specific statutory duty for a lawyer was breached and that this breach was committed intentionally or at least negligently.54 The supervisory authority must respect the principle of proportionality when sanctioning: any sanction imposed must be suitable and necessary to achieve the purpose of the public interest underlying the rule in question and the sanction must in particular not be more severe than necessary to achieve this goal.55 In sanctioning, the supervisory authority must take all circumstances of the specific case into consideration, and in particular the 52 This can in particular be the case if a general duty under statutory law can be specified by taking recourse to the Swiss Bar Association’s Rules of Conduct; see Decision of the Swiss Federal Tribunal, 18 June 2004, FTD 130 II 270, 276; Decision of the Swiss Federal Tribunal, 12 April 2011, 2C 909/2010. Duties and obligations that are not already contained (at least in principle) in the statutory law cannot be introduced by reference to the Rules of Conduct; see Fellmann, Kommentar zum Anwaltsgesetz, no 5 ad Art. 12 FMLA. 53 Poledna, Kommentar zum Anwaltsgesetz, no 15 ad Art. 17 FMLA. 54 Ibid., no 18 ad Art. 17 FMLA; Decision of the Swiss Federal Tribunal, 31 August 1984, FTD 110 Ia 95, 96. If a lawyer no longer fulfils the objective requirements for practising law, he/she can be debarred by removal from the lawyers’ register, even if the person in question has not committed any offensive act, e.g. where the lawyer is no longer of sound mind. 55 Poledna, Kommentar zum Anwaltsgesetz, no 24 ad Art. 17 FMLA. The Swiss Federal Tribunal has, on the other hand, also emphasised that the supervisory authority is entitled to impose sanctions which are sufficiently severe to attain the necessary effect; see Decision of the Swiss Federal Tribunal, 8 August 2002, FTD 128 I 346, 353.

575

Professional secrecy of lawyers in Europe

severity of the lawyer’s breach and the degree of fault, as well as previous sanctions that may already have been imposed.56 A warning is the mildest possible sanction. It may nonetheless only be issued as a result of a full formal proceeding and is listed, like any sanction, in the lawyers’ register.57 A reprimand is a more severe, but still a mild sanction, suitable for breaches such as personally discrediting a judge in an impertinent manner.58 A fine is a sanction of medium severity. Fines in the upper region of up to CHF 20,000 should only be imposed in the more severe cases.59 Temporary suspension from the Bar is the most severe sanction of specific deterrence and requires a serious breach of the rules of professional conduct. It is valid in the entire territory of Switzerland and must be communicated by the cantonal supervisory authority in question to the supervisory authorities of the other cantons (Art. 18 FMLA). Permanent debarment is no longer intended to correct the behaviour of the lawyer in question, but aims at removing him/her entirely from the profession. It should only be ordered in the severest cases, i.e. in the case of behaviour that essentially precludes any further activity of the lawyer in question from the point of view of the public interest. Apart from exceptional cases, a permanent debarment is in principle only admissible after a disciplinary warning has been issued.60 The name of the sanction is misleading insofar as the lawyer can apply to have it revoked in the case of a substantial and permanent change of the circumstances that led to the debarment. It is, in this sense, not permanent.61 43. The procedure for imposing sanctions is governed by cantonal law. Federal law requires, however, that any sanction can be appealed to an independent cantonal court, before the matter is brought before the Swiss Federal Tribunal (Art. 110 FTA). The Swiss Federal Tribunal has repeatedly held that ‘civil rights’ in the sense of Article 6 of the European Convention on Human Rights may only be invoked in the case of severe sanctions, such as temporary or permanent suspensions.62 Parties to the proceedings include the sanctioned lawyer; in appeal proceedings they also include the supervisory authority and, pursuant to cantonal law, in some instances the cantonal bar association. Other persons, in particular anyone filing a complaint against the lawyer, are not parties to the proceedings.63

56 Poledna, Kommentar zum Anwaltsgesetz, no 27 ad Art. 17 FMLA. 57 Ibid., no 28 ad Art. 17 FMLA; Decision of the Swiss Federal Tribunal, 8 June 2007, 2C 97/2007. 58 Decision of the Swiss Federal Tribunal, 23 January 2006, 2A.496/2005. 59 Poledna, Kommentar zum Anwaltsgesetz, no 35 ad Art. 17 FMLA. 60 Ibid., no 40 ad Art. 17 FMLA. 61 Ibid., no 41(a) ad Art. 17 FMLA. 62 See Decision of the Swiss Federal Tribunal, 8 August 2008, FTD 128 I 346, with further references. 63 See, for example, Decision of the Swiss Federal Tribunal, 28 January 2009, FTD 135 II 145.

576

Switzerland

44. Disciplinary actions become time-barred one year after the supervisory authority becomes aware of the breach of the rules of professional conduct. Any actions by the supervisory authority interrupt this statute of limitations. The absolute period of limitations lapses ten years from the act in question. b

Criminal proceedings and sanctions

45. Violations of the lawyer’s duty of professional secrecy are punishable pursuant to Article 321 PC with imprisonment of up to three years or a monetary penalty of up to 360 daily penalty units.64 The punishment is imposed by the criminal courts in ordinary criminal proceedings. Any judgment of first instance can be appealed to the cantonal courts of appeal, which can fully review the judgment of first instance. The appeal court’s decision can then be appealed to the Swiss Federal Tribunal, which will render a final decision. The Federal Tribunal’s scope of review is essentially limited to questions of law, although apparent erroneous factual findings can also be corrected (Arts. 95 and 97 FTA). c

Civil proceedings and damages

46. A violation of the lawyer’s duty of professional secrecy also constitutes a breach of the contract concluded between the client and the lawyer, unless the client has waived confidentiality (Art. 398(2) Code of Obligations). If this breach of contract leads to a financial loss by the client, the client can sue for damages. The client bears the burden of proof for the existence of an agreement, the breach of contract, the damage and the required causal nexus between the breach and the damage. Additionally, the client may claim moral restitution should the statutory requirements for such a claim be met.65 Any claims raised by a client are heard before the state courts in ordinary civil proceedings. A judgment of first instance can be appealed to the cantonal courts of appeal and ultimately to the Swiss Federal Tribunal.

B

Relationship between criminal sanctions and disciplinary sanctions 47. Criminal proceedings conducted by the criminal authorities and disciplinary measures implemented by the supervisory authorities against the lawyer are in principle independent of each other, and there is no legal obligation of either authority to take the other proceeding into account. As a general rule, however, the supervisory authority suspends its own proceedings for the duration of a 64 A daily penalty unit amounts to a maximum of CHF 3,000. The court decides on the value of the daily penalty unit according to the personal and financial circumstances of the lawyer at the time of his/her conviction (Art. 34(2) PC). 65 Nater and Zindel, Kommentar zum Anwaltsgesetz, no 193 ad Art. 13 FMLA.

577

Professional secrecy of lawyers in Europe

related criminal procedure and only reopens the disciplinary proceeding once the criminal case is concluded.66

5

Duty to provide information to the authorities

A

Money laundering 48. Lawyers are explicitly exempt from the notification duties stipulated in the Swiss anti-money laundering legislation.67 This exemption applies, however, only to the extent the lawyer is subject to the confidentiality obligation of Article 321 PC, i.e. when acting in a genuine professional capacity as a lawyer (see no 18 of this chapter). This exemption does not apply, however, to the extent the lawyer acts outside the scope of his/her actual professional capacity as a lawyer, e.g. when acting as a board member, a financial intermediary, a trustee, an attorney-infact and the like (see further no 18 of this chapter). In such a case, no special privilege applies, and the lawyer has the same notification duties as any other intermediary in the sense of the anti-money laundering legislation.

B

Debt collection and bankruptcy 49. The Debt Collection and Bankruptcy Act (DCBA) stipulates in Articles 91(4) and 223(4) an obligation of any third party to disclose assets of the debtor. The Swiss Federal Tribunal has held in relation to banking secrecy that this secrecy does not afford any protection and that the disclosure obligation must prevail.68 Swiss doctrine also applies the same principles to lawyers who hold assets belonging to the debtor.69 A lawyer can obviously not hide behind professional secrecy in the case of his/her own bankruptcy.70 66 See, for example, Decision of the Swiss Federal Tribunal, 13 April 2005, 2P.274/2004. 67 Art. 9(2) MLA reads as follows (unofficial translation): ‘Lawyers and notaries are not subject to the duty to report insofar as they are bound in their activities by professional secrecy in terms of Article 321 PC.’ 68 Decision of the Swiss Federal Tribunal, 19 January 1976, FTD 102 III 8, Decision of the Swiss Federal Tribunal, 12 November 1949, 75 III 106 and Decision of the Swiss Federal Tribunal, 24 July 1940, 66 III 30. 69 K. Amonn and F. Walther, Grundriss des Schuldbetreibungs- und Konkursrechts, 7th edn, Bern: St¨ampfli Verlag AG, 2008, 155–6; A. E. Lebrecht, Basler Kommentar Strafrecht Bundesgesetz u¨ ber Schuldbetreibung und Konkurs I, published by A. Staehelin, T. Bauer, D. Staehelin, 2nd edn, Basel: Helbing Lichtenhahn Verlag, 2010, no 24 ad Art. 91; of another opinion, however, are U. Lustenberger, Basler Kommentar Strafrecht Bundesgesetz u¨ ber Schuldbetreibung und Konkurs II, published by A. Staehelin, T. Bauer, D. Staehelin, 2nd edn, Basel: Helbing Lichtenhahn Verlag, 2010, no 13 ad Art. 223. 70 Lustenberger, Basler Kommentar Strafrecht Bundesgesetz, no 15 ad Art. 222.

578

Switzerland

C

Data protection 50. Article 11(a)(3) of the Data Protection Act (DPA) requires individuals and companies to register their data collections with the Federal Data Protection and Information Commissioner. Lawyers’ files may in principle qualify as such data collections, as they frequently contain information which is particularly worthy of protection. The Swiss government has, however, issued a statement according to which the lawyer’s statutory duty to keep records and files on pending cases makes such notification unnecessary.71 Hence, to the extent that a lawyer acts within the scope of his/her genuine professional capacity as a lawyer, no notification is necessary. Data collections prepared outside this scope may, however, have to be notified (e.g. data collections prepared for pure marketing reasons).72

6

Treatment of a lawyer’s documents and correspondence in the context of judicial investigations 51. For criminal proceedings, legal commentary and case law generally assume that documents and correspondence produced by lawyers are broadly privileged.73 Pursuant to Article 264 CCrP, privileged documents may not be confiscated regardless of the point in time in which they were created (i.e. even if they were created prior to the commission of the crime) and the place they are located (i.e. documents located outside the lawyer’s offices are equally protected). 52. Documents stemming from communication with the accused person’s defence counsel are comprehensively protected (Art. 264(1)(a) CCrP). The wording of the statutory law has some gaps, however, as far as other clients are concerned. According to Article 264(1)(c) CCrP, only documents stemming from communication between an ‘accused’ and a lawyer are further protected. This wording does not explicitly comprise any other legal advice, in particular documents prepared by a lawyer for a third party that is not accused. This leaves potential gaps especially in the corporate world, where the lawyer frequently advises the legal entity (and not the suspects). Arguably, the statutory wording therefore does not prevent the production or confiscation of privileged documents prepared for a legal entity. The lack of clarity concerning this issue is unsettling, despite having posed few practical problems to date. These concerns

71 See further Swiss Bar Association, ‘Der SAV teilt mit. Revidiertes Datenschutzgesetz: Meldepflicht f¨ur Anw¨altinnen und Anw¨alte’, Anwaltsrevue 9/2008, 423. 72 Swiss Bar Association, ‘Der SAV teilt mit. Revidiertes Datenschutzgesetz’, 423. 73 Nater and Zindel, Kommentar zum Anwaltsgesetz, no 144 ad Art. 13 FMLA; Schiller, Schweizerisches Anwaltsrecht, 174–81.

579

Professional secrecy of lawyers in Europe

were addressed by the amended wording of the rules that are expected to enter into force in the first half of 2013 (see no 11 of this chapter). 53. Regarding civil proceedings, the situation is much clearer. Article 160(1)(b) CCP provides that lawyers’ correspondence and documents relating to a matter in the genuine professional capacity of lawyers who are authorised by law to represent clients before courts are protected by professional secrecy. They therefore do not have to be produced before courts in civil proceedings, irrespective of whether the correspondence is in the custody of the lawyer, the client or a third party.

7

Search of a lawyer’s office 54. While lawyers in principle are under no obligation to disclose privileged information, they are required to tolerate the search of their offices as long as the statutory prerequisites for such a search are met.74 A search of a lawyer’s office poses particular problems as far as confidential information is contained in the lawyer’s files. The lawyer has a duty to take all necessary steps to safeguard privileged information, in particular by ensuring that no such documents are confiscated.75 To the extent that the criminal authorities insist on confiscating documents that contain privileged information, the lawyer has a duty to have such documents sealed to prevent the authorities’ access to them.76 Once the documents have been sealed, the criminal authorities need to request the competent court within twenty days to unseal the file. In the process of unsealing, the court will assess whether the documents are effectively privileged, and, if so, will return them to the lawyer. 55. Lawyers who are themselves accused cannot rely on privilege to refuse the confiscation of documents in their offices (Art. 264(1)(c) CCrP). While no special rules apply in principle to criminal proceedings conducted against a lawyer, the duty of professional secrecy requires that a lawyer take all possible precautions to safeguard client privilege even if he/she is the subject of a criminal investigation.77 This includes in particular a duty to protect any unrelated client files, and to request their sealing if necessary.78

8

Tapping of telephone conversations with a lawyer 56. Telephone lines of third parties may be tapped in cases where it must be assumed that the accused person uses them or if a third party receives or 74 See in that respect Arts. 198, 199, 241, 244 and 245 CCrP. 75 Schiller, Schweizerisches Anwaltsrecht, 176. 76 Ibid., 176–7. 77 Ibid., 178. 78 Ibid., 178.

580

Switzerland

forwards messages on behalf of the accused person.79 If this third party is a lawyer, special protective measures apply. Article 271 CCrP allows the tapping of telephone conversations with a lawyer only under restrictive conditions. Any information that is not related to the purpose of the criminal investigation and the reason for which the person is under surveillance must be separated under court supervision. Particularly restrictive conditions apply to a direct tapping (i.e. where the telephone conversations are directly monitored without any prior recording); this requires that the lawyer him-/herself be the subject of the investigation and that particular reasons require such direct surveillance.80

9

The lawyer as witness 57. If lawyers are called as witnesses in civil or criminal proceedings, they have broad rights to refuse to give evidence based on their duty of professional secrecy. For criminal proceedings, Article 171(1) CCrP sets forth that lawyers (among other privileged professionals) may refuse to give evidence about confidential information which they have learnt during the exercise of their profession. Article 171(2) provides for exceptions to this rule where such professionals were released from their duty of confidentiality, either by the owner of the confidential information or by a supervisory authority. Article 171(4) clarifies with reference to the FMLA, however, that lawyers in particular cannot be forced to disclose any professional secrets even if the client has waived confidentiality or if the lawyer has been released from the duty of confidentiality by the supervisory authority. Even in such circumstances it is therefore for the lawyer’s own discretion whether he/she wishes to rely on the privilege or not.81 For civil proceedings, Article 163(1)(b) CCP holds that parties to a civil litigation may refuse any co-operation to the extent they would breach their 79 It is currently debated whether the fact that an accused person simply calls a third person already constitutes ‘usage’ of the phone of this third person; see T. Hansjakob, Kommentar zur Schweizerischen Strafprozessordnung (StPO), published by A. Donatsch, T. Hansjakob, V. Lieber, Zurich: Schulthess Juristische Medien AG, 2010, no 10 ad Art. 270 (supporting this interpretation); and M. Jean-Richard-dit-Bressel, Basler Kommentar Schweizerische Strafprozessordnung, published by M. A. Niggli, M. Heer, H. Wipr¨achtiger, Basel: Helbing Lichtenhahn Verlag, 2011, no 9 ad Art. 270 (dissenting with the argument that the accused person must use the line as if he/she were the owner of the line). 80 From a technical point of view it should be noted that since 2005 all tappings are effectively done directly; see Jean-Richard-dit-Bressel, Basler Kommentar Schweizerische Strafprozessordnung, no 10 ad Art. 271. Article 271 CCrP is therefore outdated. It is not yet entirely clear how this situation should be resolved from a legal point of view; see also Hansjakob, Kommentar zur Schweizerischen Strafprozessordnung, nos 11–13 ad Art. 270. 81 Art. 171(4) CCP refers to Art. 13(1) FMLA; see no 31of this chapter.

581

Professional secrecy of lawyers in Europe

duties of confidentiality pursuant to Article 321 PC. If a lawyer is called as a witness, he/she can similarly refuse to give evidence based on Article 166(1)(b) CCP, even if he/she was released from the duty of confidentiality.

10

The lawyer and the press 58. Statutory law does not contain any specific rules governing the relationship between lawyers and the press. Traditionally, lawyers are required to be particularly reserved vis-`a-vis the press and to refrain from using the media as an instrument to influence the courts.82 If they decide to inform the media, they have to present their declarations in an objective and factually correct manner and in a decent form.83 Lawyers’ communications to the media must in any case always be guided by the client’s interests, and lawyers should in particular take into account that they frequently lack the necessary experience and professional knowledge to efficiently handle the media and public-relations work.84

11

Powers of the tax administration and other public authorities 59. Tax advice will in many cases not fall under the scope of legal privilege, either because the person giving the advice does not qualify as a lawyer or because tax advice does not constitute legal advice rendered in a genuine professional capacity as a lawyer (see no 18 of this chapter). To the extent that the tax advice does constitute actual legal advice rendered by a lawyer in a genuine professional capacity, the legal privilege does apply in principle. Swiss national tax law does not contain any specific provisions regarding disclosure obligations of lawyers. In the international context, Article 26(3)(c) of the OECD Model Tax Convention provides protection against a breach of professional secrets. This principle is also reflected in Article 8(6) of the draft Legal Assistance in Tax Matters Act which is currently being proposed by the Swiss government. 60. There is also no general legal privilege attached to documents prepared by lawyers in proceedings involving other public authorities. This has led to considerable practical difficulties in particular in connection with anti-trust advice, where, as a matter of fact, any documents need to be kept at the lawyer’s 82 Decision of the Swiss Federal Tribunal, 11 August 2004, 2A.600/2003; Decision of the Swiss Federal Tribunal, 22 February 1980, FTD 106 Ia 100, 107; Fellmann, Kommentar zum Anwaltsgesetz, no 41 ad Art. 12 FMLA. 83 Decision of the Swiss Federal Tribunal, 11 August 2004, 2A.600/2003. 84 See Schiller, Schweizerisches Anwaltsrecht, 399.

582

Switzerland

offices to ensure their confidentiality.85 However, a new law generally exempting lawyers from having to disclose privileged documents in administrative proceedings, including anti-trust proceedings, is expected to enter into force in the first half of 2013 (see no 11 of this chapter).

12

State security service 61. The Homeland Security Act (HSA) does not contain any specific rules on privileged information. Article 14(1) stipulates, however, that the authorities have to rely, in principle, on publicly available information, information provided by other authorities and their own observations in public places. To the extent that compulsory measures are sought or events observed in private locations, the authorities have to observe the rules of criminal procedural law (Art. 14(2) HSA). In such an event, legal privilege is protected according to the principles outlined above. 85 See F. Hoffet and D. Seckler, ‘Vom Anwaltsgeheimnis zum “Legal Privilege”’, SJZ 101/2005, 333.

583

33 United Kingdom ronnie fox Solicitor of the Senior Courts Principal, Fox

shira auerbach J.D. Member of the New York Bar Solicitor of the Senior Courts

shirley blair A&L Goodbody Associate

kirsteen macdonald Burness Paull & Williamsons LLP Associate

Preliminary note 585 1 Scope of and limitations on professional secrecy 586 A Statutory basis and implications 586 B Scope 586 C Persons subject to the duty of professional secrecy 588 D Limitations and derogations 589 a Limitations 589 b Derogations 590 E Law firms 591 F Legal assistants and staff 591 G External service providers 591 H Multidisciplinary associations 592 2 History 593 3 Supervision 593 A The bar associations 593 B The courts 595 4 Sanctions 595 A Proceedings and sanctions 595 a England and Wales 595 b Scotland 597 c Northern Ireland 599 B Relationship between criminal sanctions and disciplinary sanctions 600 5 Duty to provide information to the authorities 600

584

United Kingdom

6 7 8 9 10 11 12

A Money laundering and terrorism 600 B Collective settlement of debts 602 Treatment of a lawyer’s documents and correspondence in the context of judicial investigations 602 Search of a lawyer’s office 603 Tapping of telephone conversations with a lawyer 603 The lawyer as witness 604 The lawyer and the press 604 Powers of the tax administration and other authorities 604 State security service 605

Preliminary note 1. In England and Wales, the legal protection afforded to communications between lawyers and their clients is known as ‘legal professional privilege’ (LPP). This protection is intended to promote the rule of law and facilitate access to justice. LPP is a single privilege with two subheads: (i) legal advice privilege and (ii) litigation privilege. Legal advice privilege protects communications between lawyer and client for the purpose of giving or receiving legal advice. These communications are generally covered by privilege, whether or not litigation is contemplated or in progress. Litigation privilege protects communications between a lawyer (or his/her client) and a third party for the purpose of litigation. These communications are privileged only if litigation is contemplated or in progress. Litigation privilege does not protect other communications between lawyer and client; these are covered only by legal advice privilege. 2. Northern Ireland is a separate legal jurisdiction within the United Kingdom of Great Britain and Northern Ireland. The laws applicable in Northern Ireland are those Acts of Parliament or statutory instruments of the United Kingdom that are expressed to apply to Northern Ireland (in whole or in part) and Orders of the devolved Northern Ireland Assembly, together with statutory instruments made by departments of the Northern Ireland Executive. The principles of common law in Northern Ireland are very similar to those in England. Decisions of the civil courts in England are persuasive (but not binding, save for Supreme Court Decisions) in the Northern Ireland courts. The law in relation to LPP in England and Wales is largely the same in Northern Ireland. 3. Scotland is similarly a separate legal jurisdiction within the United Kingdom. This chapter deals with the laws and ethical rules as they apply throughout the United Kingdom. The ways in which the rules in Scotland and Northern Ireland differ from those in England and Wales are highlighted when appropriate. 585

Professional secrecy of lawyers in Europe

1

Scope of and limitations on professional secrecy

A

Statutory basis and implications 4. There is no statutory basis for LPP in the United Kingdom. LPP was originally regarded simply as a rule of evidence. It is now considered a substantive right of considerable importance in English law. Not only can a client prevent disclosure in legal proceedings, but in principle a client can assert LPP in response to almost any demand for documents by a public or private authority. LPP is not restricted to civil and criminal proceedings. Pursuant to a decision of the House of Lords in 1996,1 LPP is a fundamental human right protected by Articles 6 and 8 of the European Convention on Human Rights (ECHR) (formerly the Convention for the Protection of Human Rights and Fundamental Freedoms). 5. In Scotland, a general obligation of confidentiality is contained in the code of conduct applicable to solicitors in Scotland.2 The position of LPP as a fundamental human right has also been recognised in the Scottish courts. In the case of Narden Services Ltd v. Inverness Retail & Business Park Ltd ([2005] CSOH 62 (R. F. Macdonald QC)) the judge stated, The claim which the . . . respondents seek to make in relation to these documents is one of confidentiality based on legal professional privilege, an absolute legal privilege and a fundamental human right which has been held to be part of the right of privacy guaranteed by article 8 of the Convention.

6. LPP belongs to the client, not to the client’s lawyer or agent. Only the client can invoke LPP, although a lawyer is under a duty to assert LPP on the client’s behalf unless the client has waived the privilege. If a client has waived LPP, the client’s lawyer cannot thereafter invoke the privilege. LPP survives the death of the client and may pass for the benefit of the client’s successors in title.

B

Scope 7. Legal advice privilege protects written and oral communications between client and lawyer, directly or through an intermediary, for purposes of seeking or obtaining legal advice.3 Legal advice privilege also protects documents or other materials evidencing the substance of such communications, such as a meeting or briefing note, board papers, board meeting minutes and witness 1 R v. Derby Magistrates Court, ex p B [1996] AC 487, 507. 2 Solicitors (Scotland) (Standards of Conduct) Practice Rules 2008, Schedule, para. 5. 3 Three Rivers District Council and Others v. Governor and Company of the Bank of England (No 5) [2003] QB 1556 (‘Three Rivers 5’).

586

United Kingdom

information.4 This privilege can also extend to drafts and working papers, but only if they record or evidence communications from the client or the lawyer’s opinions or thoughts.5 Inchoate communications, such as where the sender dies before the communication is sent or received, may also be protected by legal advice privilege.6 8. Litigation privilege protects written and oral communications between a client or lawyer and third parties, or other documents created by or on behalf of the client or the client’s lawyer, which come into existence after litigation is contemplated or has commenced, for the dominant purpose of obtaining information or advice in connection with such litigation.7 The meaning of ‘communications’ is the same in the context of both litigation privilege and legal advice privilege. The communications must be for the purpose of obtaining legal advice, and will not be protected if simply factual. ‘Other documents’ includes evidence or materials for brief or rough notes for such evidence or materials.8 In civil proceedings, litigation privilege can apply to communications between a client and a third party for the dominant purpose of obtaining legal advice, even if (i) the lawyer did not request the client to contact the third party, (ii) the communications are never sent to the lawyer, (iii) a lawyer has not been engaged or (iv) the client intended to settle the matter without recourse to a lawyer or to litigation.9 In both civil and criminal proceedings, litigation privilege can protect bodily samples that are taken with the requisite ‘dominant purpose’.10 9. The communication or document for which privilege is sought must be confidential for either subhead of LPP to apply. ‘Confidential’ means information which the solicitor is not at liberty to disclose if it would be against the client’s interests to disclose it. Information may be confidential even if it is in the public domain.11 It is easy to lose LPP. If a third party hears or reads a communication between lawyer and client, this may negate confidentiality and, as a result, LPP,12 but not if the third party was necessary to the communication, such as an interpreter or social worker for a vulnerable client.13 4 R (Kelly) v. Warley Magistrates Court [2008] 1 WLR 2001. 5 Three Rivers 5. 6 Three Rivers District Council and Others v. Governor and Company of the Bank of England (No 6) [2005] 1 AC 610 (‘Three Rivers 6’). 7 Three Rivers 6. 8 Three Rivers 6. 9 Bankim Thanki QC, The Law of Privilege, Oxford University Press, 2011, 132–3. 10 R v. R [1994] 1 WLR 758. 11 Hilton v. Barker Booth & Eastwood (a firm) [2005] 1 WLR 567. 12 R v. Braham and Mason [1976] VR 547. 13 R (Bozkurt) v. South Thames Magistrates Court [2002] RTR 246; A Local Authority v. B [2009] 1 FLR 289.

587

Professional secrecy of lawyers in Europe

LPP typically does not extend to matters of fact that a lawyer learns about a client during the course of the retainer but that could have been discovered by anyone.14 Similarly, the following are generally considered not to be protected by LPP: a client’s address, identity, handwriting or mental capacity or the existence of the retainer itself.15 A communication attracts privilege or not at the time of its creation. Anything that happens subsequently is usually inconsequential as far as LPP is concerned.16

C

Persons subject to the duty of professional secrecy 10. LPP applies to communications with a solicitor, barrister or appropriately qualified foreign lawyer with a current practising certificate.17 If the lawyer does not have a current practising certificate but a client acting in good faith does not know this, LPP will attach anyway.18 In-house lawyers may be treated as lawyers in independent practice for purposes of LPP.19 Communications between lawyers qualified in different jurisdictions concerning the affairs of their mutual clients are also protected by LPP.20 The communication need not be directly between lawyer and client to be protected by litigation privilege. Communications by an agent on the client’s behalf, or to a clerk acting under a lawyer’s direction, will also be protected if the agent is a specifically designated channel for communication. The agent must not act as more than a conduit for the communication and must not receive the communication for his or her own purposes.21 Communications with a lawyer’s or client’s representative will not normally attract legal advice privilege. 11. The lawyer must be acting in his or her professional legal capacity when the communication takes place in order for LPP to apply; however, LPP may attach before a formal retainer is established, such as during a meeting between the lawyer and a potential client.22 LPP will not attach to communications which take place after a lawyer has ceased to act for a client.

14 15 16 17 18 19 20 21 22

588

Dwyer v. Collins [1852] 7 Ex 639, 646. See Bankim Thanki, The Law of Privilege, 82–3. Southwark and Vauxhall Water Company v. Quick [1878] 3 QBD 315, 322 (CA). R (Prudential PLC) v. Special Commissioner of Income Tax [2011] 2 WLR 50. Dadourian Group International Inc. and Others v. Simms and Others [2008] EWHC 1784 (Ch). Alfred Crompton Amusement Machines Ltd v. Customs and Excise Commissioners (No 2) [1972] 2 QB 102, 129 (CA). AM&S Europe Ltd v. Commission of the European Communities [1983] QB 878. Wheeler v. Le Marchant [1881] 17 Ch D 675, 684. Descoteaux v. Mierzwinski [1982] 141 DLR (3d) 590.

United Kingdom

Communications with non-lawyers providing legal advice are generally not protected by LPP. However, there are statutory exceptions to this rule for patent and trade mark agents,23 licensed conveyancers,24 authorised advocates and litigators.25 12. In Scotland, LPP applies to communications with a solicitor, an advocate or a properly qualified foreign lawyer with a current practising certificate. Section 33 of the Administration of Justice Act 1885 and Section 63 of the Courts and Legal Services Act 1990 do not extend to Scotland.

D

Limitations and derogations

a

Limitations

13. There is no privilege in communications or documents which are part of a crime or fraud, or which seek or give legal advice about how to perpetrate the commission of a crime or fraud, whether civil or criminal. The lawyer need not be involved in the crime or fraud for this exception to apply; however, if the fraud is the lawyer’s alone, the client’s privilege will not be affected. This crime–fraud exception applies to both subheads of LPP, but is narrowly construed in all instances. Preparatory communications prior to commission of the crime or fraud, as well as communications subsequent to commission of the crime or fraud, are also subject to the crime–fraud exception.26 14. Some statutes exclude the protection of LPP. In order for a statute to be construed as overriding LPP, clear language in the statute is required. Any statute that attempts to override LPP must be considered in light of the Human Rights Act 1988. There are some noteworthy statutory exclusions of LPP. LPP cannot prevent disclosures to the police where someone has a suspicion that funds have been used in connection with drug trafficking or that certain items of property are the proceeds of drug trafficking.27 The litigation privilege subhead of LPP does not apply in the context of care and supervision proceedings brought under Part IV of the Children Act 1989. Interrogatories are permitted to discern the nature of legal advice given for purposes of determining whether to override a time limit for personal injury actions.28 LPP does not attach to transactions where a court is satisfied that a spouse is about to make, or has made, a disposition with the intention of defeating the other spouse’s claim for financial relief.29 23 Copyright, Designs and Patents Act 1988, ss 280 and 284. 24 Administration of Justice Act 1985, s 33. 25 Courts and Legal Services Act 1990, s 63. 26 Kuwait Airways Corp. v. Iraqi Airways Co. [2005] 1 WLR 2734; R v. Central Criminal Court ex p Francis & Francis [1989] AC 346. 27 Drug Trafficking Act 1994, ss 50 and 51. 28 Limitation Act 1980, s 33. 29 Matrimonial Causes Act 1973, s 37.

589

Professional secrecy of lawyers in Europe

LPP cannot be claimed where parties have a joint interest in the subject matter of the communications. Joint-interest relationships include trustee–beneficiary, company–director, parent company–subsidiary, company– shareholders. In addition, if clients have a joint retainer because they are jointly instructing the same lawyer, such as is often the case with spouses, the clients will not retain LPP vis-`a-vis each other.30 15. The provisions of the Drug Trafficking Act 1994, the Limitation Act 1980, the Children Act 1989 and the Matrimonial Causes Act 1973 do not extend to Scotland. In Scotland, two of the most important statutory exclusions of LPP are the following. In examinations in bankruptcy the debtor or relevant person examined in the course of a public examination may not be excused from answering questions on the ground of confidentiality.31 Under the provisions of the Legal Aid (Scotland) Act 1986, Section 35(A)(6), it is provided that, notwithstanding any duty of confidentiality, the Scottish Legal Aid Board may require a solicitor to produce to it information or documents relating to criminal legal assistance for the purpose of determining whether a solicitor or his or her firm may be committing a crime in relation to criminal legal assistance or for the purpose of confirming compliance with the code of practice governing criminal legal assistance. b

Derogations

16. When a client brings civil proceedings against his or her lawyer or legal adviser, the client impliedly waives privilege with respect to all matters relevant to the client’s claim, including the cause of action brought by the client, issues of the lawyer’s alleged negligence, and any defences the lawyer may have.32 Although privilege belongs to the client and is generally the client’s to waive, this rule seeks to prevent potential prejudice to a lawyer who could not otherwise rely on privileged documents in his defence. This waiver rule applies only where the client sues legal advisers, not other professional advisers. The breadth of the waiver will depend upon the scope of the retainer at issue in the client’s lawsuit as determined by the instructions given to the lawyer, the nature of the work and the client’s knowledge and experience.33 If a client document that would otherwise be privileged is available to the opposing party in proceedings, or that opposing party has the right to obtain the document, the fact of its privilege will be irrelevant.34 Similarly, if the contents 30 31 32 33

590

Bankim Thanki, The Law of Privilege, 200–1. Bankruptcy (Scotland) Act 1985, s 47(3) . Lillicrap v. Nalder & Son [1993] 1 WLR 94. Ibid., at 98. 34 O’Rourke v. Darbishire [1919] 1 Ch 320, aff’d [1920] AC 581.

United Kingdom

of a document are made known to a third party who wishes to prove the contents of the document in proceedings against the client, LPP will not apply, unless the third party obtained the document through improper means.35 17. In Scotland, the role of confidentiality is subject to certain limited exceptions: (i) express waiver by the client;36 (ii) the calling of the former solicitor as a witness by the client;37 (iii) where the communications between a solicitor and his client amount to advice regarding some criminal activity, for example fraud;38 (iv) where an action is based on an alleged agreement to settle a court action;39 or (v) where the issue before the court is the existence of the professional relationship itself.40

E

Law firms 18. Lawyers who work in a law firm often share privileged information. It is generally accepted that no restrictions apply to sharing information in this way. When a client engages the services of a law firm, all the lawyers of the firm are deemed engaged. The firm can ask any of its lawyers to handle the case. So LPP applies to all information provided by the client to the lawyers of the firm, regardless of whether they are partners or associates.

F

Legal assistants and staff 19. Communications with non-solicitor employees or other support staff of a solicitor or firm of solicitors, including secretaries, trainee solicitors or paralegals acting under the direction of a solicitor, are privileged. Communications with pupils of barristers or employees of barristers or their chambers, such as clerks or practice managers, are privileged as well.41 20. In Scotland, communications with non-solicitor employees or other support staff of a solicitor or firm of solicitors, including secretaries, trainees or paralegals acting under direction of a solicitor, are privileged. Communications with devils of advocates (the equivalent of pupils in England and Wales), or employees of advocates, or their stables, such as advocates’ clerks or practice managers, are also privileged.

G

External service providers 21. Law firms must take care to outsource services only when the firm is satisfied that the service provider has taken all appropriate steps to ensure that the firm’s clients’ confidential information will be protected. 35 37 38 39 41

See Bankim Thanki, The Law of Privilege, 214. 36 Noble v. Scott [1843] 5D 723. Forteith v. Earl of Fife [1821] 2 Mur 467. Micosta v. Shetland Islands Council [1983] SLT 483. Kid v. Bunyan [1842] 5D 193. 40 Fraser v. Malloch [1895] 3 SLT 211, OH. Descoteaux v. Mierzwinski [1982] 141 DLR (3d) 590, 603.

591

Professional secrecy of lawyers in Europe

If a law firm outsources services such as word processing, telephone-call handling or photocopying, the firm should require confidentiality undertakings from all service providers. In addition, the firm should conduct checks periodically to ensure that the terms of the confidentiality arrangements are being complied with. Whilst a firm may have implied consent to pass confidential client information to external service providers, it is prudent for the firm to inform clients in the firm’s terms of business or client care letters of any such services the firm proposes to use.

H

Multidisciplinary associations 22. The Legal Services Act 2007 allows the creation of legal disciplinary practices, which can include up to 25 per cent of non-lawyers but still provide legal services. The Act also permits alternative business structures, which allow external ownership of legal businesses and multidisciplinary practices that provide legal and non-legal services. In the context of legal disciplinary practices and alternative business structures, LPP will apply to communications with someone who is not a lawyer but who provides certain legal services such as advocacy, litigation, conveyancing or probate services as an authorised person.42 LPP will also apply to a non-lawyer working within an alternative business structure under the supervision of a solicitor, barrister or foreign lawyer.43 Communications in this context that are, at the outset, for the purpose of providing legal advice will be protected by LPP. Other communications, such as to seek financial advice, will not. 23. The provisions of the Legal Services Act 2007 do not extend to Scotland. Once it is fully in force, the Legal Services (Scotland) Act 2010 (‘the 2010 Act’) will allow solicitors in Scotland to form partnerships with non-solicitors. The new business entities permitted by the 2010 Act will be called licensed legal services providers (‘licensed providers’). 24. Under Section 75 of the 2010 Act any communication made to or by a licensed provider in the course of its acting in the provision of legal services will be privileged from disclosure in any legal proceedings. Further, any enactment concerning the disclosure of information to which a claim of LPP could be made, or concerning the production, seizure or removal of which a claim to LPP could be made, will be taken as applying to a licensed provider as it would to a solicitor. 25. The Legal Services Act 2007 also does not apply in Northern Ireland. There is a general prohibition preventing the creation of legal disciplinary practices or multidisciplinary practices in Northern Ireland. The ownership of a law firm other than by lawyers is not permitted. 42 Legal Services Act 2007, ss 190(1) and (2).

592

43 Legal Services Act 2007, ss 190(3) to (5).

United Kingdom

2

History 26. LPP has existed in some form since at least the sixteenth century. Originally, the rationale for LPP was that a lawyer should not, in honour, be required to disclose what he had been told by a client in confidence. However, by the end of the eighteenth century it was established that LPP belongs to the client, not the lawyer; that LPP is the client’s to enforce or waive; and that without a waiver, a lawyer will not be permitted to disclose any client confidences. Since the early nineteenth century it has been established that LPP is not confined to litigation but also extends to other communications between lawyer and client for the purpose of obtaining legal advice. Throughout the nineteenth century, the scope of LPP remained the subject of controversy until a decision by the Court of Appeal in 1873 confirmed that communications outside the context of litigation could be privileged.44 Each of the two subheads of LPP has a different rationale. Legal advice privilege is based on the public interest in enabling individuals to obtain adequate legal advice and assistance, and the need for candour between the parties to facilitate this process. Litigation privilege, on the other hand, is regarded as part of a client’s right to a fair trial. In order to maintain fairness, preparation for litigation must be protected by confidentiality.45

3

Supervision

A

The bar associations 27. The Solicitors Regulation Authority (SRA) deals with all regulatory and disciplinary matters, and sets, monitors and enforces standards, for solicitors across England and Wales. The SRA supervises solicitors, firms and lawyers of other types to make sure that they comply with the SRA’s guiding principles and that they behave independently, fairly and with integrity to serve the interests of their clients and the public. The SRA does not handle issues of poor service. When a lawyer fails to comply with the SRA’s principles, the SRA can discipline the lawyer, taking into account the risk posed to the public and to consumers. Where the risk posed is serious, the SRA has the power to take formal enforcement action, such as limiting or restricting the lawyer’s work or even closing a firm or revoking the lawyer’s practising certificate. The Bar Standards Board is responsible for regulating barristers called to the Bar in England and Wales. The purpose of the Board is to provide specialist regulation of advocacy and to set the standards of entry to the advocacy 44 Minet v. Morgan [1873] 8 Ch App 361, 366. 45 See Bankim Thanki, The Law of Privilege, 10–13.

593

Professional secrecy of lawyers in Europe

profession. The Board, through its Standards Committee, is responsible for maintaining the Code of Conduct of the Bar of England and Wales, with which all barristers must comply. The Board has authority to determine whether a barrister has breached the Code of Conduct and whether disciplinary action is necessary and justified. If disciplinary action is considered appropriate, the Board will refer the case to an independent disciplinary tribunal for a final decision on what action, if any, should be taken against the barrister. 28. The legal ombudsman deals with all aspects of poor service, including delayed or unclear communication, problems with fees or loss of documents. The legal ombudsman can order the lawyer or firm to apologise, to refund all or part of the client’s fees, to return the client’s documents and to pay compensation if the client has suffered a financial loss as a result of poor service. Once the legal ombudsman makes a decision, this decision is legally binding and can be enforced through the courts if necessary. 29. Complaints regarding service provision, regulation and discipline of solicitors and advocates are handled in Scotland by their respective professional bodies. The Council of the Law Society of Scotland deals with all regulatory and disciplinary matters for solicitors in Scotland in accordance with the Solicitors (Scotland) (Standards of Conduct) Practice Rules 2008. The Faculty of Advocates is responsible for the regulation and discipline of advocates called to the Bar in Scotland. Regulation is carried out in accordance with the Guide to Professional Conduct of Advocates. The Dean of Faculty, as head of the Faculty, has the authority to determine whether an advocate has breached the Code of Conduct and whether disciplinary action is necessary and justified. 30. The Law Society of Northern Ireland regulates the solicitors’ profession in Northern Ireland with the principal aim of protecting the public. It also provides services to its members. The standards to which solicitors in Northern Ireland must adhere in relation to their working practices and duties to their clients are set out in legislation and practice regulations. The primary legislation is the Solicitors (Northern Ireland) Order 1976 (as amended) (the Solicitors’ Order). The Solicitors’ Order is the statutory framework that enables the Law Society to act as the regulatory authority in relation to the qualification, education, professional practice, conduct and discipline of solicitors. The principal aim of the Solicitors’ Order is to ensure the independence, ethical standards, professional competence and quality of services offered to the public. The relevant core regulations are the Solicitors’ Practice Regulations 1987 amended by the Solicitors’ Practice (Amendment) Regulations 2011 (together the Solicitors’ Practice Regulations). These set out the standards to which solicitors must work in Northern Ireland, including the standard of service required for clients. 594

United Kingdom

The Bar Council deals with the maintenance of the standards, honour and independence of barristers called to the Bar in Northern Ireland. Through its Professional Conduct Committee it investigates complaints made against members of the Bar in their professional capacity. The Professional Conduct Committee consists of members of the Bar appointed by the Bar Council, together with two lay representatives. It is bound by the Bye-Laws of the Professional Conduct Committee. Barristers must abide by a Code of Conduct, which includes standards of service to clients.

B

The courts 31. Until the year 2000, barristers enjoyed immunity from suit for damages for loss incurred as a result of a barrister’s negligence in representing a client in court. The House of Lords removed this immunity in 2000 with respect to all proceedings, both civil and criminal, affecting barristers, as well as solicitors who act as advocates in court.46 The civil courts now have jurisdiction to hear any claim for professional liability brought against a lawyer by a client. The criminal courts have jurisdiction over crimes committed by lawyers in the exercise of their profession. No special rules apply in this respect to lawyers.

4

Sanctions

A

Proceedings and sanctions

a

England and Wales

32. The SRA takes a risk-based approach to its regulation of lawyers and is empowered to fine and rebuke lawyers in accordance with the Solicitors Act 1974 and the SRA Disciplinary Rules 2010. Rule 3 of the Disciplinary Rules sets out the circumstances in which the SRA may issue a written rebuke or direct that the lawyer pay a fine of up to £2,000. For less serious offences, the SRA is authorised to issue a casework decision, letter of advice or finding and warning. In the most serious cases, the SRA may refer the matter to the Solicitors Disciplinary Tribunal (SDT). When the SRA finds no issue of professional conduct or no evidence of misconduct, the SRA will close the case with a casework decision without any formal adjudication. When there may have been minor or technical misconduct, or the misconduct had a low impact and there is little likelihood of repetition, the SRA may send a letter of advice. When the SRA finds significant but oneoff misconduct or moderate misconduct by a first-time offender, the SRA will typically issue a finding and warning. 46 Arthur J. S. Hall and Co. v. Simons [2000] 3 AER 673.

595

Professional secrecy of lawyers in Europe

33. The SRA will rebuke a lawyer when there has been significant misconduct or a series of cumulatively significant incidents causing a significant impact. When a lawyer is found to have committed serious misconduct or a series of incidents that are cumulatively serious and have caused significant impact, the SRA will direct the lawyer to pay a financial penalty. A financial penalty may also be appropriate where the lawyer has made some gain in relation to the misconduct. In considering the appropriate sanction, the SRA takes into account various factors, such as whether the act or omission was deliberate or reckless, caused loss or significant inconvenience, resulted from a failure to recognise the lawyer’s professional obligations, continued for an unreasonable period of time, or was part of a pattern of misconduct. The SRA will also consider any ameliorating factors, such as whether the lawyer apologised, repaid any lost funds and co-operated with the SRA’s investigation. In the most serious cases, where the misconduct has caused or had the potential to cause high impact, the SRA may refer the case to the SDT. The SRA is also likely to refer a case to the SDT where a number of allegations may, if proved, require a total penalty of more than £2,000. Decisions in the SDT must fulfil an evidential test and a public-interest test. 34. A lawyer who is subject to an SRA finding or disciplinary decision may appeal all or part of the SRA finding or decision, typically within fourteen calendar days of the date of the letter informing the lawyer of the decision. Appeals to the SDT must be made within twenty-eight days of the date on which notice of the decision is given to the lawyer. Once the period for appeal has passed, the SRA may publish the details of a written rebuke or direction to pay a penalty, including the lawyer’s name and the disciplinary decision. 35. The Bar Standards Board hears complaints about barristers and determines in each case where there has been a breach of the Code of Conduct and where disciplinary action is necessary and justified. If disciplinary action is considered appropriate, the Board will refer the case to an independent disciplinary tribunal for a final decision on what action, if any, should be taken against the barrister. Depending on the seriousness of the case, the case will be heard by either a three-person or a five-person panel. The most serious sentence a three-person panel can impose is a suspension for up to three months. The three-person panel is also empowered to issue a reprimand or order the barrister to pay a fine of up to £15,000. The five-person panel can impose the same sanctions as the three-person panel, but can also suspend the barrister for any period of time or disbar the barrister. A barrister can appeal against the disciplinary tribunal’s decision and sentence to the independent Visitors of the Inns of Court. If a barrister is found guilty of professional misconduct, the Bar Standards Board will publish this finding on its website within seven days of the hearing. A 596

United Kingdom

record of the finding will also be included in the barrister’s formal disciplinary record. b

Scotland

36. All complaints regarding the service received from a legal practitioner in Scotland are channelled through the Scottish Legal Services Complaints Commission (‘the Commission’). The Commission cannot investigate complaints regarding conduct. The jurisdiction of the Commission extends only to complaints about service. The Commission does, however, have the power to investigate the way a conduct complaint has been handled by the relevant professional body, namely the Law Society of Scotland or the Faculty of Advocates. The Commission has the power to award up to £20,000 compensation for loss, inconvenience or distress resulting from inadequate professional services. The Commission can also require the law firm in question to reduce fees, redo work and rectify mistakes at its own expense. The Council of the Law Society of Scotland (‘the Council’), as the general regulatory body exercising discipline over solicitors, has a duty to investigate complaints against its members.47 37. When a conduct complaint is remitted to the Law Society of Scotland, the Council carries out an initial investigation. Questions of unsatisfactory professional conduct are dealt with by the Council while more serious cases are prosecuted before the Scottish Solicitors Discipline Tribunal (‘the Tribunal’). Unsatisfactory professional conduct means professional conduct which is not of the standard which could reasonably be expected of a competent and reputable practitioner but which does not amount to professional misconduct and which does not comprise merely inadequate professional services. The Council must determine a conduct complaint suggesting unsatisfactory professional conduct by a solicitor after investigating the complaint, making a written report and giving the solicitor an opportunity to make representations. The Council may take account of any previous determination by it, the Tribunal or the Court of Session upholding a complaint against the solicitor of unsatisfactory professional conduct or professional misconduct. 38. If the Council makes a determination upholding the complaint and decides to censure the solicitor, it may take any of the following steps which it considers appropriate: 1. where the Council considers that the solicitor does not have sufficient competence in relation to any aspect of the law or legal practice, to direct 47 Law Reform (Miscellaneous Provisions) (Scotland) Act 1990, s 33.

597

Professional secrecy of lawyers in Europe

the solicitor to undertake such education or training as regards the law or legal practice as the Council considers appropriate in that respect; 2. with exceptions, to direct the solicitor to pay a fine not exceeding £2,000; 3. where the Council considers that the complainant has been directly affected by the conduct, to direct the solicitor to pay compensation of such amount, not exceeding £5,000, as it may specify to the complainant for loss, inconvenience or distress resulting from the conduct. 39. The solicitor or complainant involved in the conduct complaint may appeal to the Tribunal against certain decisions given by the Council. The Tribunal may exercise various powers in relation to an appeal, including the power to quash or confirm the determination or direction and in certain circumstances to order the solicitor to pay compensation. A solicitor or complainant may go on to appeal to the Court of Session against certain decisions of the Tribunal. 40. Cases of alleged professional misconduct are prosecuted by the Tribunal. The rules governing the operations of the Tribunal are set out in the Scottish Solicitors Discipline Tribunal Rules 1989. When a complaint has been made to the Tribunal in proper form, which discloses a prima facie case against the solicitor, and answers have been allowed and lodged, the Tribunal considers the documents and fixes a day for hearing the complaint. If, however, in the opinion of the Tribunal no further action should be taken, the Tribunal may dismiss the complaint. If, after holding an inquiry, it is satisfied that a solicitor has been guilty of professional misconduct, the Tribunal has many powers, including (i) to order that the name of the solicitor be struck off the roll, (ii) to order that the solicitor be suspended from practice as a solicitor for such time as it may determine, (iii) to order that any right of audience in the superior courts be suspended or revoked, (iv) to impose on him or her or an incorporated practice a fine not exceeding £10,000, (v) to censure the solicitor or (vi) to both fine and censure the solicitor. 41. Conduct complaints regarding advocates are in the first instance dealt with by the Dean of the Faculty of Advocates (the Dean). The Dean has the power to consider a complaint and determine whether the complaint is justified and, if so, the penalty to be imposed. The penalties which the Dean is empowered to impose are: admonition, reprimand, censure, an order for repayment in whole or in part of any fees exigible in respect of the work which has given rise to the complaint, and a fine not exceeding £5,000. The advocate is entitled to make written or oral representations to the Dean before any of these penalties are imposed. If the advocate disputes the facts relating to the complaint, the Dean may remit the complaint to an investigating committee to make a preliminary 598

United Kingdom

investigation of the facts and to report after making such investigation as it thinks fit, after giving the advocate an opportunity to make written or oral representations. Upon consideration of the committee’s report, the Dean may (i) dismiss the complaint; (ii) with the consent of the advocate, uphold the complaint in whole or part and impose any of the penalties available to him; (iii) with the consent of the advocate, uphold the complaint in whole or part and remit the complaint to the disciplinary tribunal for the imposition of penalties; or (iv) remit the complaint to the tribunal for determination and disposal. 42. The disciplinary tribunal may impose any of the non-monetary penalties available to the Dean. In addition, it may order a fine not exceeding £10,000, suspension from membership of the Faculty for a period not exceeding five years and expulsion from membership. Any determination or disposal of a complaint by the tribunal must be reviewed by the Dean, who may affirm, modify or rescind it. c

Northern Ireland

43. The Law Society of Northern Ireland receives and deals with complaints received against solicitors. It investigates such complaints. If it concludes that the solicitor’s actions have been in order, the complaint will not be upheld. Alternatively, it may conclude that the solicitor has been guilty of inadequate service or professional misconduct. If the solicitor has given inadequate service, the Law Society can exercise its statutory powers to impose certain sanctions, which include (i) limiting the costs that the solicitor is entitled to charge, having regard to the standard of the service provided; (ii) directing the solicitor to take such steps for the completion of the matter within such reasonable time as the Law Society may specify; (iii) requiring the solicitor to secure rectification of any error or omission or other deficiency; and (iv) directing the solicitor to take any other action which the Law Society thinks is necessary, at the solicitor’s expense. In serious cases of professional misconduct it may prosecute the solicitor before the Solicitors’ Disciplinary Tribunal. This is a disciplinary body independent of the Law Society and includes lay people. It was set up by Parliament as part of the High Court and has the power (i) to strike a solicitor off the roll of solicitors, in effect banning him or her from practising as a solicitor; (ii) to suspend the solicitor from his or her practice; or (iii) to impose a fine or admonishment or to order restitution. 44. A failure by a barrister to comply with his or her profession’s Code of Conduct can lead to disciplinary action being taken by the Professional Conduct Committee. A barrister must comply promptly with any direction of the Professional Conduct Committee. 599

Professional secrecy of lawyers in Europe

B

Relationship between criminal sanctions and disciplinary sanctions 45. Disciplinary and criminal sanctions are imposed independently. However, if a solicitor has been convicted of fraud or serious crime in England or Wales, Section 13(B), Solicitors Act 1974, allows the Law Society to direct that the solicitor’s practising certificate be suspended for a period of up to six months. 46. In Scotland, where a solicitor has been found guilty of an act of dishonesty, has been fined an amount equivalent to level 4 on the standard scale or more, or has been sentenced to a term of imprisonment for twelve months or more, the Solicitors (Scotland) Act 1980, Section 53(1)(b), allows the Tribunal to order that (i) the name of the solicitor be struck off the roll, (ii) the solicitor be suspended from practice for such time as it thinks fit or (iii) any right of audience held by the solicitor be suspended or revoked. 47. Under Article 15 of the Solicitors (Northern Ireland) Order 1976 (as amended), the Law Society of Northern Ireland may suspend a solicitor from practising if he or she is found guilty of a serious crime. The suspension of the practising certificate shall continue until the certificate expires. The offending solicitor would then need to reapply for a practising certificate and the Law Society of Northern Ireland would review that application in the context of the criminal offence committed.

5

Duty to provide information to the authorities

A

Money laundering and terrorism 48. Credit institutions, financial institutions, auditors, insolvency practitioners, external accountants and tax advisers, independent legal professionals, trust or company service providers, estate agents, high-value dealers and casinos carrying on business in the United Kingdom must comply with the Money Laundering Regulations 2007. ‘Independent legal professional’ includes a lawyer working in a firm or as a sole practitioner who, through his business, provides legal or notarial services to others. Lawyers who are employed by a public authority or who work in-house are not independent legal professionals. The Money Laundering Regulations apply only to certain lawyers’ activities where there is a high risk of money laundering, including financial or realproperty transactions concerning (i) buying and selling real property or business entities; (ii) managing client money, securities or other assets; (iii) opening or managing bank, savings or securities accounts; (iv) organising contributions necessary for the creation, operation or management of companies; and (v) creating, operating or managing trusts, companies or similar structures.

600

United Kingdom

49. If a lawyer knows that the transaction on which he or she is working constitutes a money-laundering offence, the lawyer risks committing an offence him- or herself. In these circumstances, the lawyer is obliged to disclose communications relating to such a transaction, as they are not privileged. However, if the lawyer merely suspects that the transaction might constitute a moneylaundering offence, LPP will not be displaced unless prima facie evidence of the fraud exists.48 A lawyer may him- or herself decide whether prima facie evidence exists, or may ask the court for directions.49 If a lawyer forms a genuine but mistaken belief that LPP does not apply, or that LPP does apply, the lawyer will be able to rely on a reasonable-excuse defence. 50. In England and Wales, disclosures relating to suspicions of money laundering should be made to either the Serious Organised Crime Agency (SOCA), the police or Her Majesty’s Revenue and Customs, depending on the nature of the disclosure. Disclosures to any of these organisations where a person has a suspicion that funds have been used in connection with criminal conduct, or that certain items of property are the proceeds of criminal conduct, override LPP.50 The Proceeds of Crime Act 2002 makes it a criminal offence for a person to acquire, conceal or disguise criminal property, or to enter into an arrangement that facilitates the acquisition or retention of criminal property. However, a lawyer is not obliged, and in fact is not permitted, to breach a client’s privilege in order to make an authorised disclosure under this Act.51 Under the Terrorism Act 2000, a person who believes or suspects that another person has committed any of the offences of fundraising, use and possession, funding arrangements or money laundering with respect to terrorist property, and bases his belief or suspicion on information which comes to his attention (i) in the course of a trade, profession or business, or (ii) in the course of employment (whether or not in the course of a trade, profession or business), is subject to disclosure obligations.52 51. However, a professional legal adviser is not required to disclose information obtained in privileged circumstances or a belief or suspicion based on information obtained in privileged circumstances. Information is obtained by an adviser in privileged circumstances if it comes to him or her, other than with a view to furthering a criminal purpose, from (i) a client or a client’s representative, in connection with the provision of legal advice by the adviser to the client; (ii) a person seeking legal advice from the adviser, or from the person’s representative; or (iii) any person, for the purpose of actual or contemplated legal proceedings. 48 49 50 51 52

O’Rourke v. Darbishire [1920] AC 581. Finers (a firm) v. Miro [1991] 1 WLR 35. Criminal Justice Act 1988, ss 93(A) and 93(B). Proceeds of Crime Act 2002, ss 327–9; Bowman v. Fels [2005] 1 WLR 3083. Terrorism Act 2000, s 19.

601

Professional secrecy of lawyers in Europe

B

Collective settlement of debts 52. A bankrupt is required to deliver to the official receiver all books and records relating to his or her estate and affairs, including ‘any which would be privileged from disclosure in any proceedings’. A bankrupt is not permitted to assert his or her own privilege.53 A trustee in bankruptcy does not, however, have the power to access the bankrupt’s legal advice received after his or her bankruptcy.54 When a solicitor is examined in the absence of the client concerning a bankruptcy, LPP will apply so that a lawyer cannot be obliged to reveal anything which the client would not be required to reveal.55

6

Treatment of a lawyer’s documents and correspondence in the context of judicial investigations 53. The Criminal Justice and Police Act 2001, which aims to combat crime and disorder, sets out extensive powers of seizure without any exclusion for privileged documents. Items may be seized and taken away from premises by the police where it is not reasonably practicable for the police to determine whilst on the premises whether they in fact have the power to seize such items because, for example, the items are subject to the crime–fraud exception.56 Where police are lawfully on premises to conduct a search and seizure and they find an item which they are entitled to seize contained within an item which they would otherwise have no power to seize, such as a computer hard drive which contains privileged communications, the Criminal Justice and Police Act permits the police to seize both items when it is not reasonably practicable to separate them. However, the police are not permitted to circumvent LPP in this context; a series of safeguards imposes an obligation on the police to return privileged items that have been seized.57 54. The provisions of the Criminal Justice and Police Act 2001 do not apply in Scotland. In Scotland police powers of seizure are, subject to certain specific statutory provisions, common law powers. Where a warrant is issued for the search of a solicitor’s office the solicitor is entitled to refuse to hand over material protected by LPP. If material is seized in relation to which a claim of LPP lies, this is a matter of admissibility of evidence. 53 54 55 56

Insolvency Act 1986, ss 291 and 311. Foxley v. United Kingdom [2000] 31 EHRR 637. Re Murjani (a bankrupt) [1996] 1 All ER 65. Criminal Justice and Police Act 2001, ss 50–66 and Schedule 1; see also R v. Central Criminal Court ex p Francis & Francis [1989] AC 346. 57 Criminal Justice and Police Act 2001, ss 50 and 54.

602

United Kingdom

55. The powers of search and seizure under the Police and Criminal Evidence Act 1984, by contrast, are subject to the restriction that any items covered by LPP are beyond the reach of police investigative powers under this Act. The Police and Criminal Evidence Act 1984 does not apply in Northern Ireland, but similar provisions are contained within the Police and Criminal Evidence (Amendment) (Northern Ireland) Order 2007.

7

Search of a lawyer’s office 56. The search of a lawyer’s office is not governed separately by law. These searches are, however, subject to the constraints set forth above. In relation to the search of a lawyer’s office, investigating agencies commonly instruct independent counsel to provide an opinion as to whether a particular document contains material that may be subject to LPP. These independent counsel are not permitted to participate actively in the search, but will provide their opinion upon request. Even if an independent counsel advises that a particular document may be subject to LPP, the independent counsel is not permitted to address the question whether a claim of LPP may be overridden in that particular context. Independent counsel are not permitted to arbitrate upon disputes between the investigating authority and the occupier of the premises.

8

Tapping of telephone conversations with a lawyer 57. The Police Act 1997 (as amended by the Regulation of Investigatory Powers Act 2000) allows certain police agencies to seek authorisation to enter property and interfere with wireless telegraphy in the course of the detection and prevention of crime.58 This Act permits covert surveillance of communications between lawyers and clients, even though such communications may be covered by LPP.59 When evaluating a request for authorisation, the senior official must consider whether the action to be taken is ‘proportionate to what the action seeks to achieve’.60 The official must bear in mind that a bug in a suspected criminal’s lawyer’s office picks up not only what the suspected criminal says, but also what all others who come into the lawyer’s office say. Under this Act, once the police receive authorisation from a senior judicial office holder to enter or interfere with property or with wireless telegraphy, ‘bugging’ that results in the acquisition of knowledge of ‘matters relevant to legal privilege’ is permitted.61 Furthermore, in urgent cases, prior authorisation is not required. 58 Police Act 1997, pt III. 59 McE v. Prison Service of Northern Ireland [2009] AC 908. 60 Police Act 1997, s 93(2)(b). 61 Police Act 1997, s 97(2).

603

Professional secrecy of lawyers in Europe

9

The lawyer as witness 58. A lawyer may be called to testify in court as a witness. The lawyer is not permitted to disclose the confidences of the client, but there are certain defined categories of information that are not considered confidential and may thus be disclosed by the lawyer. A lawyer is permitted to give evidence as to whether he or she has a particular document in his or her possession, though he or she cannot disclose the contents of a confidential document.62 A lawyer may, however, disclose documents indicating the time of day at which a client visited the lawyer.63 Similarly, a lawyer can be required to divulge the whereabouts of a client.64 A lawyer is permitted to give evidence as to whether particular information was on a document when he saw it in court, since the lawyer’s knowledge of this fact is not the result of any communication with the client.65 A lawyer is also permitted to give evidence of communications received from non-clients, even if the lawyer received these communications only as a result of his or her status as the lawyer of the client.66

10

The lawyer and the press 59. Lawyers are permitted to discuss generally the legal standpoint on a given issue. However, lawyers should refrain from giving advice on a specific person’s case or addressing a particular person’s legal difficulty. If a lawyer has been approached by the press to discuss a particular case in which the lawyer is instructed, the lawyer should not express personal opinions to the press about the case if it is still in progress or the time limit for an appeal has not been exhausted. The lawyer should also take care not to disclose privileged or confidential information to the press.

11

Powers of the tax administration and other authorities 60. HM Revenue and Customs are permitted to use their statutory powers under the Taxes Management Act 1970 to compel disclosure by a lawyer of information relating to the lawyer’s clients’ affairs, even if the information may be privileged. The information obtained, if privileged, may be used for purposes of determining the lawyer’s personal tax liabilities, but may not be used in connection with the tax liabilities of the client.67 62 63 64 66 67

604

Dwyer v. Collins [1852] 7 Ex 639. R v. Crown Court at Manchester, ex p Rogers [1999] 1 WLR 832. Ex Parte Campbell [1870] 5 Ch App 703. 65 Brown v. Bennett [2001] All ER (D) 246. Sawyer v. Birchmore [1835] 3 My & K 572. R (Morgan Grenfell & Co. Ltd) v. Special Commissioner of Income Tax [2002] 2 WLR 1299.

United Kingdom

61. The Law Society may use its statutory powers under the Solicitors Act 1974 to compel disclosure by a lawyer of information relating to the lawyer’s clients’ affairs, even if the information may be privileged. Any information obtained may be used only for purposes of a Law Society investigation into the lawyer’s affairs.68 In addition, the Council of the Law Society is empowered to give notice for the production of all relevant documents in the possession of the concerned lawyer when investigating professional misconduct.69 62. Similar powers exist in Northern Ireland to compel disclosure by a lawyer of information relating to the solicitors’ clients’ affairs; the statutory authority comes from Article 41 of the Solicitors (Northern Ireland) Order 1976. 63. The provisions of the Solicitors Act 1974 do not extend to Scotland. Under Rules 13 and 28 of the Scottish Solicitors’ Discipline Tribunal Procedure Rules 2008, the Tribunal has the power to order any party to produce any document in their custody or control if the Tribunal considers it necessary for the proper consideration of the complaint. This provision is, however, subject to the qualification that parties are not obliged to produce any document which they would be entitled to refuse to produce in proceedings in any court in Scotland.

12

State security service 64. The United Kingdom’s security service (MI5) is permitted to obtain or disclose information only so far as is necessary properly to discharge its functions, for the prevention or detection of serious crime or for the purpose of any criminal proceeding. Under the Security Service Act 1989, the director general of the service is responsible for ensuring that there are effective arrangements in place to control when and how the service obtains and discloses information. There is a system of internal mechanisms designed to ensure that the service investigates only genuine threats to national security and does so with proper regard for the law, in proportion to the threat, and with authorisation for intrusive measures obtained externally from the appropriate Secretary of State where the law so requires. In addition, there are particular limitations placed on the product of intercepted communications to ensure that the safeguards set down by the Regulation of Investigatory Powers Act 2000 are observed. 68 Parry-Jones v. Law Society [1969] 1 Ch 1.

69 Solicitors Act 1974, s 44(B).

605

Index

Akzo Nobel Chemicals (CJEU, 2010), 21, 205, 260, 269, 294, 295–8 AM&S Europe Limited v. Commission (ECJ, 1982), 350 anti-money laundering (AML) requirements. See terrorism and money laundering attorney–client privilege: Netherlands, professional secrecy distinguished in, 368; as professional secrecy (see professional secrecy of lawyers in Europe) Auerbach, Shira, 584 Austria, professional secrecy in, 30–50: bankruptcy, insolvency and indebtedness, 44; bar association responsibilities, 37–41; benefit of protection extending to persons other than client, 312; civil damages, 41–2; court jurisdiction over, 38; criminal activity of lawyer and, 44; disciplinary sanctions, 38–41; external service providers, 36–7; higher values prevailing over, 44; historical background, 37; judicial investigations, lawyer’s documents and correspondence in, 45; law firms, 35–6; Lawyers Act (Rechtsanwaltsordnung), 30–1, 37; legal assistants and staff, 36; legal bases for, 30–1; Liechtenstein influenced by, 311; limitations and derogations, 33–5; loyalty, duty of, 31; media relations, 49; multidisciplinary associations, 37; persons subject to duty of, 32–3; phone tapping, 46–7; sanctions, 38–42; scope of protected information, 31–2; searches of law

606

offices, 45–6, 49–50; state security services, 49–50; tax authorities and, 49; terrorism and money laundering, 34, 42–4; waivers by client, 34–5; witnesses, lawyers as, 47–8 aviation accidents in Norway, 398 B´an´ati, J´anos, 222 bankruptcy, insolvency and indebtedness, 9–10: in Austria, 44; in Belgium, 55, 59, 68; in Cyprus, 93, 100; in Estonia, 139, 142; in Finland, 166; in Germany, 196–7; in Latvia, 306; in Lithuania, 329; in Luxembourg, 335; in Malta, 363; in Poland, 433; in Scotland, 590; in Slovakia, 487; in Spain, 540; in Sweden, 548, 558; in Switzerland, 578; in the United Kingdom, 602 bar association responsibilities: in Austria, 37–41; in Belgium, 64–6; in Bulgaria, 82–3; in Cyprus, 95–7; in the Czech Republic, 112–16, 119–20; in Denmark, 131–2; in Estonia, 140–4; in Finland, 151; in France, 176, 177–8, 180–1, 182; in Germany, 192, 193–4; in Greece, 210, 211–12, 216; in Hungary, 228–9, 230; in Iceland, 248, 249–50; in Ireland, 262–3; in Italy, 283, 284–5; in Latvia, 301, 302–3; in Liechtenstein, 316; in Lithuania, 326, 327–8; in Luxembourg, 338, 339, 342; in Malta, 360–2; in the Netherlands, 382, 383–4; in Northern Ireland, 594–5, 599; in Norway, 400–1; in Poland, 429; in Portugal, 451–2, 456; in Romania, 466, 467–8; in Scotland, 594, 597–9; in Slovakia, 483–5,

Index

490–1; in Slovenia, 504–5, 506–9, 516; in Spain, 536–7; in Sweden, 554–5, 556–7; in Switzerland, 574–5; in the United Kingdom, 593–600 bar associations, disclosure to: in Belgium, 60; in the Czech Republic, 108–9; in Estonia, 139; in Finland, 164; in Hungary, 226; in Latvia, 296; in Luxembourg, 335; in Malta, 355; in the Netherlands, 378–9 Basic Principles on the Role of Lawyers, United Nations Congress on the Prevention of Crime and the Treatment of Offenders, 25 Bazzani, Claudio, 563 Belgium, professional secrecy in, 52–72: bankruptcy, insolvency and indebtedness, 55, 59, 68; bar association authorities, disclosure to, 60; bar association responsibilities, 64–6; civil damages, 66; court jurisdiction over, 64; criminal sanctions, 66; disciplinary sanctions, 64–6; ethical bases for, 56, 58–61; external service providers, 62; higher values prevailing over, 58; historical background, 63; judicial investigations, lawyer’s documents and correspondence in, 69; law firms, 61–2; legal assistants and staff, 62; legal bases for, 52–4; limitations and derogations, 56, 58–61; media relations, 71; multidisciplinary associations, 62–3; persons subject to, 56, 58–61; phone tapping, 70; sanctions, 64–6; scope of protected information, 54–6; searches of law offices, 69–70; state security services, 72; tax authorities and, 54, 71–2; terrorism and money laundering, 58, 67–8; waivers by client, 61; witnesses, lawyers as, 61–2, 70–1 benefit of protection of attorney–client privilege extending to persons other than client, 312 Blair, Shirley, 584

Borg, Christine, 344 Bosait´e, Akvil´e, 320 Brambilla, Antonella, 270 breaches of professional secrecy, 4. See also sanctions Bulgaria, professional secrecy in, 74–87: Attorneys Act, 82; Bar Act, 74–7; bar association responsibilities, 82–3; civil damages, 85; court jurisdiction over, 83; Criminal Act, 82; criminal sanctions, 85; disciplinary sanctions, 83–5; ethical bases for, 77; external service providers, 81; historical background, 82; judicial investigations, lawyer’s documents and correspondence in, 86; law firms, 80–1; legal assistants and staff, 81; legal bases for, 74–7; limitations and derogations, 79–80; Measures against Money Laundering Act, 79, 80; Measures against the Financing of Terrorism Act, 79–80; media relations, 87; multidisciplinary associations, 81; persons subject to, 77–8; phone tapping, 86; sanctions, 83–5; scope of protected information, 77; searches of law offices, 86; state security services, 87; tax authorities and, 87; terrorism and money laundering, 79–80, 85; waivers by client, 76; witnesses, lawyers as, 76, 87 Cacerea, Gabriela, 460 ˇ ap, Petr, 105 C´ Charter of Core Principles of the Legal Profession, CCBE, 24, 25–6 Charter of Fundamental Rights of European Union, 25, 91 children. See minors, neglect or abuse of Chuturkova, Kina, 73 Cicero, 209 civil damages: in Austria, 41–2; in Belgium, 66; in Bulgaria, 85; in Cyprus, 98; in the Czech Republic, 116–17; in Denmark, 132; in Estonia, 144; in Finland, 162; in France, 178; in Germany, 195; in Greece, 213–14; in

607

Index

Hungary, 229, 231; in Iceland, 251; in Italy, 286; in Latvia, 303–4; in Lithuania, 328; in Luxembourg, 340; in Malta, 362; in the Netherlands, 384; in Norway, 401; in Portugal, 452; in Romania, 468–9; in Slovakia, 484; in Spain, 538; in Sweden, 557; in Switzerland, 577 civil security. See state security services Code of Conduct for European Lawyers, CCBE, 3, 24, 25, 26–7, 283 collective settlement of debts. See bankruptcy, insolvency and indebtedness common law, in Ireland, 260 Competition Law (EC Regulation 1/2003), 21 competition proceedings: in Hungary, 238; in Iceland, 251, 258; in Slovenia, 515–16; in Sweden, 559 confessional, secrecy of, 2 confidentiality, client. See professional secrecy of lawyers in Europe Conroy, Sarah, 259 constitutional bases for professional secrecy. See legal bases for professional secrecy contractual basis for professional secrecy, 11: in Austria, 31; in Belgium, 54; in Bulgaria, 76; in the Czech Republic, 109–10; in Denmark, 132; in Estonia, 144; in Germany, 185, 195; in Greece, 213; in Hungary, 225, 226; in Latvia, 292, 303; in Liechtenstein, 314; in Lithuania, 328; in Luxembourg, 340; in Malta, 362; in the Netherlands, 373, 384; in Norway, 401; in Portugal, 452; in Romania, 468; in Slovenia, 510; in Sweden, 557; in Switzerland, 566, 577 corporate lawyers, European Court of Justice on, 197. See also Akzo Nobel Chemicals; persons subject to duty of professional secrecy correspondence and documents of lawyers. See judicial investigations,

608

lawyer’s documents and correspondence in correspondence between lawyers, 3, 17–18, 470–1, 528 Council of Bars and Law Societies of Europe (CCBE), 24–8: application of principles of, 27–8; Charter of Core Principles of the Legal Profession, 24, 25–6; Code of Conduct for European Lawyers, 3, 24, 25, 26–7, 283 countering the financing of terrorism (CFT) requirements. See terrorism and money laundering court cases, lawyers involved in. See lawyers involved in court cases; witnesses, lawyers as court decisions and professional secrecy, 4, 5 court jurisdiction over professional secrecy: in Austria, 38; in Belgium, 64; in Bulgaria, 83; in Cyprus, 96; in the Czech Republic, 113–17; in Denmark, 131; in Estonia, 141; in Finland, 160–1; in France, 176–7; in Germany, 192–3; in Greece, 211; in Hungary, 229; in Iceland, 248; in Italy, 284; in Latvia, 301; in Liechtenstein, 316; in Lithuania, 326; in Luxembourg, 338; in Malta, 360; in the Netherlands, 383; in Norway, 400; in Poland, 429–30; in Portugal, 452; in Romania, 466; in Slovakia, 484; in Slovenia, 506; in Spain, 536; in Sweden, 555–6; in the United Kingdom, 595 Court of Justice of the European Union (CJEU): Akzo Nobel Chemicals, 21, 205, 260, 269, 294, 295–8; recognition of right of professional secrecy by, 5 crime, imminent/serious. See higher values prevailing over professional secrecy crime, sexual. See sexual abuse crimes criminal activity, concealment of, 13: in Austria, 44; in Belgium, 59; in

Index

Denmark, 128; in Germany, 195–6; in Greece, 207; in Ireland, 261; in Latvia, 296; in Liechtenstein, 312; in Lithuania, 324, 325; in Malta, 355; in Scotland, 590, 591; in Spain, 532; in Switzerland, 570; in the United Kingdom, 589 criminal sanctions: Austria’s lack of, 41; in Belgium, 66; in Bulgaria, 85; in Cyprus, 98; in the Czech Republic, 116, 117; in Denmark, 132–3; in Estonia, 144; in Finland, 162–4, 165; in France, 178; in Germany, 194–5; in Greece, 212, 214; in Hungary, 229, 230, 231–2; in Iceland, 250–1; in Ireland, 265; in Italy, 286; in Latvia, 303, 304; in Liechtenstein, 317; in Lithuania, 328; in Luxembourg, 339, 340; in Malta, 362; in the Netherlands, 384, 385; in Northern Ireland, 600; in Norway, 397, 401; in Poland, 431–2; in Portugal, 384, 452; in Romania, 468, 469; in Scotland, 600; in Slovakia, 485; in Slovenia, 509–10, 511–12; in Spain, 538; in Sweden, 557–8; in Switzerland, 577; in the United Kingdom, 600 customs authorities, search and seizure by, in Iceland, 258 Cutts-Watson, Thomas, 344 Cyprus, professional secrecy in, 89–104: AML Law, 98–100; bankruptcy, insolvency and indebtedness, 93, 100; bar association responsibilities, 95–7; civil damages, 98; Confidentiality Law, 101–2; court jurisdiction over, 96; Criminal Procedure Law, 101, 103–4; criminal sanctions, 98; disciplinary sanctions, 96–7, 98; external service providers, 94; higher values prevailing over, 93; historical background, 95; judicial investigations, lawyer’s documents and correspondence in, 101; law firms, 94; legal assistants and staff, 94; legal bases for, 89–91;

limitations and derogations, 93–4; media relations, 103; multidisciplinary associations, 95; persons subject to, 92–3; phone tapping, 101–2; Processing of Personal Data Law, 103–4; sanctions, 96–8; scope of protected information, 91–2; searches of law offices, 101; state security services, 103–4; tax authorities and, 103; terrorism and money laundering, 93, 98–100; waivers by client, 93; witnesses, lawyers as, 102 Czech Republic, professional secrecy in, 106–22: Act on Certain Measures against Legalisation of Yields from Criminal Activity and Financing of Terrorism, 117–18; Act on the Legal Profession, 106–7, 111–12; bar association authorities, disclosure to, 108–9; bar association responsibilities, 112–16, 119–20; civil damages, 116–17; court jurisdiction over, 113–17; criminal sanctions, 116, 117; disciplinary sanctions, 113–16, 117; ethical bases for, 113; external service providers, 110; higher values prevailing over, 108; historical background, 111–12; judicial investigations, lawyer’s documents and correspondence in, 118–19; law firms, 109–10; legal assistants and staff, 110; legal bases for, 106–7; limitations and derogations, 108–9; media relations, 121; multidisciplinary associations, 111; persons subject to, 107; phone tapping, 120; sanctions, 113–17; scope of protected information, 107; searches of law offices, 119–20; state security services, 122; tax authorities and, 121; terrorism and money laundering, 117–18; waivers by client, 109; witnesses, lawyers as, 120–1 Dahns, Christian, 183 Dal, Georges-Albert, 24

609

Index

damages. See civil damages data protection. See personal data processing debt collection. See bankruptcy, insolvency and indebtedness Declaration of Perugia, 27 defence, lawyer’s right of. See lawyers involved in court cases Delgado, Ana Cristina, 441 Denmark, professional secrecy in, 124–35: Administration of Justice Act (AJA), 124–6; bar association responsibilities, 131–2; civil damages, 132; court jurisdiction over, 131; criminal sanctions, 132–3; disciplinary sanctions, 131–3; ethical bases for, 131; external service providers, 130; higher values prevailing over, 128; historical background, 130; Iceland and, 247–8; judicial investigations, lawyer’s documents and correspondence in, 134; law firms, 129; legal assistants and staff, 129; legal bases for, 124–6; limitations and derogations, 127–8; media relations, 135; multidisciplinary associations, 130; persons subject to, 127; phone tapping, 134; sanctions, 131–3; scope of protected information, 126–7; searches of law offices, 134; state security services, 135; tax authorities and, 134; terrorism and money laundering, 133; waivers by client, 125, 128; witnesses, lawyers as, 134–5 derogations. See limitations and derogations Dimitrova, Raina, 73 Directive 2000/31/EC, 5 Directive 2005/60/EC (Anti-money Laundering and Terrorist Financing Directive), 5, 8, 13, 18–21 disciplinary sanctions: in Austria, 38–41; in Belgium, 64–6; in Bulgaria, 83–5; in Cyprus, 96–7, 98; in the Czech Republic, 113–16, 117; in Denmark,

610

131–3; in Estonia, 141–4; in Finland, 161–2, 164–5; in France, 177–8; in Germany, 193–4, 195; in Greece, 211–12, 214; in Hungary, 230, 231–2; in Iceland, 249–50, 251; in Ireland, 263–5; in Italy, 284–5, 286; in Latvia, 302–3, 304; in Liechtenstein, 317; in Lithuania, 327–8; in Luxembourg, 339, 340; in Malta, 360–2; in the Netherlands, 378–9, 383–4, 385; in Northern Ireland, 599, 600; in Norway, 400–1; in Poland, 430–2; in Portugal, 451–2; in Romania, 467–8, 469; in Scotland, 597–9, 600; in Slovakia, 484–5; in Slovenia, 506–9, 511–12; in Spain, 536–7, 538; in Sweden, 556–8; in Switzerland, 575–7; in the United Kingdom, 595–600 disclosure, duty of: in Norway, 401–2. See also bankruptcy, insolvency and indebtedness; higher values prevailing over professional secrecy; terrorism and money laundering doctor–patient privilege, 2 documents and correspondence of lawyers. See judicial investigations, lawyer’s documents and correspondence in drug trafficking and professional secrecy, in the United Kingdom, 589, 590 due process and professional secrecy, 5–6, 395 Elden, John Christian, 392 emergency, martial law, or war, in Bulgaria, 80 England and Wales. See United Kingdom equal treatment as legal basis for professional secrecy, 53 Estonia, professional secrecy in, 137–48: bankruptcy, insolvency and indebtedness, 139, 142; Bar Association Act, 137, 140; bar association authorities, disclosure to, 139; bar association responsibilities, 140–4; civil damages, 144; court

Index

jurisdiction over, 141; criminal sanctions, 144; disciplinary sanctions, 141–4; ethical bases for, 137; external service providers, 140; higher values prevailing over, 139; historical background, 140; judicial investigations, lawyer’s documents and correspondence in, 146–7; law firms, 139–40; legal assistants and staff, 140; legal bases for, 137; limitations and derogations, 138–9; media relations, 148; Money Laundering and Terrorist Financing Prevention Act (MLTFP), 144–6; multidisciplinary associations, 140; persons subject to, 138; phone tapping, 147; sanctions, 141–4; scope of protected information, 137–8; searches of law offices, 146; state security services, 148; tax authorities and, 148; terrorism and money laundering, 144–6; waivers by client, 139; witnesses, lawyers as, 147–8 ethical bases for professional secrecy, 11, 24–8: in Belgium, 56, 58–61; in Bulgaria, 77; in the Czech Republic, 113; in Denmark, 131; in Estonia, 137; in France, 176; in Greece, 203; in Iceland, 241, 242–3; in Italy, 273–4, 283; in Latvia, 292; in Liechtenstein, 311; in Lithuania, 322, 326; in Luxembourg, 333; in Malta, 347; in the Netherlands, 368, 382; in Norway, 394, 397, 400; in Poland, 414, 416–17; in Scotland, 586; in Slovenia, 499; in Spain, 534; in Sweden, 546; in Switzerland, 566 European Convention on Human Rights (ECHR): CCBE rules on professional secrecy and, 25, 28; Icelandic incorporation of, 240–1; judicial investigations, treatment of lawyer’s documents and correspondence in, 69; legal basis for professional secrecy under, 4, 5, 8–9, 53–4, 91; Liechtenstein, constitutional status in,

311; Slovenian Constitutional Court’s invocation of, 498 European Court of Human Rights: CCBE rules on professional secrecy and, 25, 28; recognition of right of professional secrecy by, 5; searches of lawyers’ offices and, 167; Wieser and Bicos Beteiligungen GmbH v. Austria (2007), 517; witnesses, lawyers as, 168–70 European Court of Justice (ECJ): AM&S Europe Limited v. Commission (1982), 350; CCBE rules on professional secrecy and, 25, 27, 28; on Community Directive 2005/60/EC (Anti-money Laundering Directive), 20; on confiscation of documents of in-house lawyers, 197 (see also Akzo Nobel Chemicals) European Parliament resolution on the legal professions, 2006, 25 European Union Charter of Fundamental Rights, 25, 91 exceptions and exemptions. See limitations and derogations external service providers: in Austria, 36–7; in Belgium, 62; in Bulgaria, 81; in Cyprus, 94; in the Czech Republic, 110; in Denmark, 130; in Estonia, 140; in Finland, 158; in France, 175; in Germany, 190–1; in Greece, 208–9; in Hungary, 227; in Iceland, 246–7; in Ireland, 262; in Italy, 282; in Latvia, 299–300; in Liechtenstein, 315; in Lithuania, 324, 325; in Luxembourg, 337; in Malta, 358–9; in the Netherlands, 381; in Norway, 399; in Poland, 427; in Portugal, 449; in Romania, 465; in Slovakia, 481; in Slovenia, 503; in Spain, 535; in Sweden, 553; in Switzerland, 572; in the United Kingdom, 591–2 fair trial, right to, 5–6, 14, 353 fees, legal proceedings to obtain. See lawyers involved in court cases

611

Index

Fernhout, Fokke, 366 Fieber, Henrik, 545 Finland, professional secrecy in, 150–71: Act on Preventing and Clearing Money Laundering and Terrorist Financing, 155, 165–6; Advocates Act, 151, 159; bankruptcy, insolvency and indebtedness, 166; bar association authorities, disclosure to, 164; bar association responsibilities, 151; civil damages, 162; Coercive Measures Act, 167–8; court jurisdiction over, 160–1; criminal sanctions, 162–4, 165; disciplinary sanctions, 161–2, 164–5; external service providers, 158; higher values prevailing over, 155, 166; historical background, 159; judicial investigations, lawyer’s documents and correspondence in, 167; law firms, 156–7; legal assistants and staff, 158; legal bases for, 150–2; limitations and derogations, 155–6; media relations, 170; multidisciplinary associations, 158–9; Openness Act, 171; persons subject to, 155; phone tapping, 167–8; Police Act, 171; sanctions, 161–5; scope of protected information, 152–5; searches of law offices, 167; state security services, 171; Statutes of the Bar, 151; tax authorities and, 170–1; terrorism and money laundering, 155, 165–6; waivers by client, 155; witnesses, lawyers as, 155, 168–70 foreign lawyers and professional secrecy, in Poland, 417–19 Fox, Ronnie, 584 France, professional secrecy in, 173–82: bar association responsibilities, 176, 177–8, 180–1, 182; civil damages, 178; court jurisdiction over, 176–7; criminal sanctions, 178; disciplinary sanctions, 177–8; ethical bases for, 176; external service providers, 175; higher values prevailing over, 174; historical background, 176; judicial

612

investigations, lawyer’s documents and correspondence in, 180; law firms, 175; Law of 13 December 1971, 173; legal assistants and staff, 175; legal bases for, 173; limitations and derogations, 174–5; media relations, 181; multidisciplinary associations, 175; persons subject to, 174; phone tapping, 181; RIN (National Regulation), 173; sanctions, 177–8; scope of protected information, 173; searches of law offices, 180–1; state security services, 182; tax authorities and, 180, 182; terrorism and money laundering, 178–9; waivers by client, 174; witnesses, lawyers as, 181 Frick, Mario, 310 fruit of the poisoned tree doctrine, in Spain, 527, 543 Ganado, Max, 344 General Court of the EU and CCBE rules, 28 Germany, professional secrecy in, 184–99: Act on the Detection of Proceeds from Serious Crimes, 195–6; bankruptcy, insolvency and indebtedness, 196–7; bar association responsibilities, 192, 193–4; civil damages, 195; court jurisdiction over, 192–3; criminal sanctions, 194–5; disciplinary sanctions, 193–4, 195; external service providers, 190–1; Federal Lawyers’ Act (Bundesrechtsanwaltsordnung or BRAO), 184–5, 192; higher values prevailing over, 187; historical background, 191–2; judicial investigations, lawyer’s documents and correspondence in, 197–8; law firms, 189–90; legal assistants and staff, 190; legal bases for, 184–5; limitations and derogations, 186–9; media relations, 199; Money Laundering Act, 187–8, 195–6; multidisciplinary associations, 191; obvious or insignificant facts,

Index

186; persons subject to, 186; phone tapping, 198; sanctions, 193–5; scope of protected information, 185–6; searches of law offices, 198; state security services, 199; tax authorities and, 199; terrorism and money laundering, 187–8, 195–6; waivers by client, 185, 186–7, 189; witnesses, lawyers as, 197, 198–9 Gerven, Dirk Van, 1, 51 Granrut, Sabine du, 172 Greece, professional secrecy in, 201–21: bar association responsibilities, 210, 211–12, 216; civil damages, 213–14; court jurisdiction over, 211; criminal sanctions, 212, 214; disciplinary sanctions, 211–12, 214; ethical bases for, 203; external service providers, 208–9; higher values prevailing over, 206–7; historical background, 209–10; judicial investigations, lawyer’s documents and correspondence in, 215–16; law firms, 208; Law Regarding Lawyers, 1926, 193–4; ‘lawyer’s perfidy’, 203; legal assistants and staff, 208; legal bases for, 202–3; limitations and derogations, 206; media relations, 218–19; multidisciplinary associations, 209; persons subject to, 204–6; phone tapping, 216–17; sanctions, 211–14; scope of protected information, 203–4; searches of law offices, 216; state security services, 220; tax authorities and, 220; terrorism and money laundering, 214–15; waivers by client, 207; witnesses, lawyers as, 210, 217–18 Guðj´onsson, Sindri, 239 Guedes da Costa, Orlando, 447 harm, imminent. See higher values prevailing over professional secrecy higher values prevailing over professional secrecy, 14: in Austria, 44; in Belgium, 58; in Cyprus, 93; in the Czech

Republic, 108; in Denmark, 128; in Estonia, 139; in Finland, 155, 166; in France, 174; in Germany, 187; in Greece, 206–7; in Iceland, 244–5; in Italy, 279; in Latvia, 296, 298; in Liechtenstein, 315; in Luxembourg, 335; in Malta, 348; in the Netherlands, 374, 376, 377; in Norway, 397, 398; in Poland, 421; in Romania, 464, 474; in Slovenia, 501, 510; in Spain, 532; in Sweden, 552, 559 Hungary, professional secrecy in, 223–38: bar association authorities, disclosure to, 228–9, 230; bar association responsibilities, 228–9; civil damages, 229, 231; civil proceedings, lawyers as witnesses in, 236–7; competition proceedings, 238; court jurisdiction over, 229; criminal proceedings, lawyers as witnesses in, 236; criminal sanctions, 229, 230, 231–2; disciplinary sanctions, 230, 231–2; external service providers, 227; historical background, 228; identity verification, 232–3; judicial investigations, lawyer’s documents and correspondence in, 233; law firms, 227; Lawyers Act, 223; legal assistants and staff, 227; legal bases for, 223; limitations and derogations, 224–6; media relations, 237; multidisciplinary associations, 227; persons subject to, 224; phone tapping, 234–5; Prevention and Combating Money Laundering and Terrorist Financing (Anti-Money Laundering Act), 232; sanctions, 230–2; scope of protected information, 223–4; searches of law offices, 233–4; state security services, 238; tax authorities and, 237; terrorism and money laundering, 232; waivers by client, 224–6; witnesses, lawyers as, 235–7 Iceland, professional secrecy in, 240–58: Act on Income Tax, 245; Act on

613

Index

Lawyers, 241; Act on Measures against Money Laundering and Terrorist Financing, 245, 251–2; Act on Official Supervision of Financial Activities, 241; Act on the Protection of Privacy as regards the Processing of Personal Data, 245; bar association responsibilities, 248, 249–50; civil damages, 251; competition proceedings, 251, 258; court jurisdiction over, 248; criminal sanctions, 250–1; customs authorities, search and seizure by, 258; Denmark and, 247–8; disciplinary sanctions, 249–50, 251; ECHR, incorporation of, 240–1; ethical bases for, 241, 242–3; external service providers, 246–7; higher values prevailing over, 244–5; historical background, 247–8; judicial investigations, lawyer’s documents and correspondence in, 252–3; law firms, 246–7; legal assistants and staff, 246–7; legal bases for, 240–2; limitations and derogations, 244–6; media relations, 257; multidisciplinary associations, 247; personal data processing, 245, 251; persons subject to, 243–4; phone tapping, 253; sanctions, 249–51; scope of protected information, 242–3; searches of law offices, 253; tax authorities and, 245, 251, 258; terrorism and money laundering, 245, 251–2; waivers by client, 246; witnesses, lawyers as, 245, 254–7 identity verification, in Hungary, 232–3 in-house lawyers, ECJ on, 197. See also Akzo Nobel Chemicals; persons subject to duty of professional secrecy incrimination, protection against, 314–15 indebtedness. See bankruptcy, insolvency and indebtedness information, duty to disclose. See disclosure, duty of

614

information, protected. See scope of protected information insignificant or obvious facts, non-confidentiality of: in Germany, 186; in Liechtenstein, 312 insolvency. See bankruptcy, insolvency and indebtedness intelligence services. See state security services International Bar Association’s International Code of Ethics, 25 Ireland, professional secrecy in, 260–9: bar association responsibilities for barristers, 262–4; common law, 260; Criminal Justice (Surveillance) Act 2009, 261, 268; Criminal Justice (Money Laundering and Terrorist Financing) Act 2010, 265–6; criminal sanctions, 265; disciplinary sanctions, 263–5; external service providers, 262; historical background, 262; judicial investigations, lawyer’s documents and correspondence in, 266; law firms, 261; Law Society responsibilities for solicitors, 262, 263, 264–5; legal assistants and staff, 262; legal bases for, 260; Legal Services Bill, 263; limitations and derogations, 261; litigation privilege, 260; media relations, 268; multidisciplinary associations, 262; persons subject to, 261; phone tapping, 267–8; Postal & Telecommunications Services Act 1983, 267; sanctions, 263–5; scope of protected information, 260; searches of law offices, 266; state security services, 269; surveillance, 261, 268; tax authorities and, 268–9; Taxes Consolidation Act 1997, 269; terrorism and money laundering, 265–6; waivers by client, 260; witnesses, lawyers as, 268 Italy, professional secrecy in, 271–89: bar association responsibilities, 283, 284–5; CCBE Code of Conduct,

Index

approval of, 283; civil damages, 286; court jurisdiction over, 284; criminal sanctions, 286; disciplinary sanctions, 284–5, 286; ethical bases for, 273–4, 283; external service providers, 282; higher values prevailing over, 279; historical background, 283; law firms, 281–2; legal assistants and staff, 282; legal bases for, 271–3; limitations and derogations, 279–81; media relations, 288–9; multidisciplinary associations, 282; personal data processing, 274–7, 283; persons subject to, 278–9; phone tapping, 288; Privacy Code, 274–7; Professional Law, 272, 283; sanctions, 284–6; scope of protected information, 277–8; searches of law offices, 287–8; state security services, 289; tax authorities and, 289; terrorism and money laundering, 286–7; waivers by client, 280–1; witnesses, lawyers as, 288 joint interest relationships and professional secrecy, in the United Kingdom, 590 judicial investigations, lawyer’s documents and correspondence in: in Austria, 45; in Belgium, 69; in Bulgaria, 86; in Cyprus, 101; in the Czech Republic, 118–19; in Denmark, 134; in Estonia, 146–7; in Finland, 167; in France, 180; in Germany, 197–8; in Greece, 215–16; in Hungary, 233; in Iceland, 252–3; in Ireland, 266; in Latvia, 306–7; in Lithuania, 329; in Luxembourg, 341–3; in Malta, 363–4; in the Netherlands, 386–7; in Northern Ireland, 603; in Norway, 403–5; in Poland, 434–5; in Portugal, 454; in Romania, 470–1; in Scotland, 602; in Slovakia, 487–90; in Slovenia, 514–16; in Spain, 540–1; in Sweden, 559–60; in Switzerland, 579–80; in the United Kingdom, 602–3 Juopperi, Aini, 149

Keller, Johannes, 183 Kennedy, Liam, 259 Kose, Katrin, 136 Kuizinait´e, Karina, 320 Kutschera, Michael, 29 Lahovnik, Tjaˇsa, 494 Langsted, Lars Bo, 123 Latvia, professional secrecy in, 291–309: bankruptcy, insolvency and indebtedness, 306; bar association authorities, disclosure to, 296; bar association responsibilities, 301, 302–3; civil damages, 303–4; court jurisdiction over, 301; criminal sanctions, 303, 304; disciplinary sanctions, 302–3, 304; ethical bases for, 292; external service providers, 299–300; higher values prevailing over, 296, 298; historical background, 300–1; Insolvency Act, 306; judicial investigations, lawyer’s documents and correspondence in, 306–7; law firms, 298–9; Law on the Bar, 292; Law on the Prevention of Money Laundering and Terrorism Financing, 292, 296, 304–6; legal assistants and staff, 299; legal bases for, 291–3; limitations and derogations, 294, 295–8; media relations, 309; multidisciplinary associations, 300; persons subject to, 294–5; phone tapping, 307–8; sanctions, 302–4; scope of protected information, 293–4; searches of law offices, 307; state security services, 309; tax authorities and, 309; terrorism and money laundering, 292, 295, 296, 297, 304–6; witnesses, lawyers as, 308 law firms: in Austria, 35–6; in Belgium, 61–2; in Bulgaria, 80–1; in Cyprus, 94; in the Czech Republic, 109–10; in Denmark, 129; in Estonia, 139–40; in Finland, 156–7; in France, 175; in Germany, 189–90; in Greece, 208; in Hungary, 227; in Iceland, 246–7; in Ireland, 261; in Italy, 281–2; in Latvia,

615

Index

298–9; in Liechtenstein, 315; in Lithuania, 324, 325; in Luxembourg, 336; in Malta, 358; in the Netherlands, 379–81; in Norway, 398–9; in Poland, 425; in Portugal, 449; in Romania, 464; in Slovakia, 480; in Slovenia, 502; in Spain, 533–4; in Sweden, 552–3; in Switzerland, 571–2; in the United Kingdom, 591 law offices, searches of. See searches of lawyers’ offices Law Society responsibilities for solicitors, in Ireland, 262, 263, 264–5 lawyers involved in court cases: in Austria, 33–4; in Belgium, 60; in Cyprus, 94; in the Czech Republic, 108; in Denmark, 128; fair trial and derogation of professional secrecy requirements, 14; in Finland, 155–6; in France, 174; in Germany, 188–9; in Hungary, 226; in Italy, 279; in Latvia, 297; in Luxembourg, 335; in Malta, 355–6; in the Netherlands, 374, 376, 379; in Portugal, 448; in Romania, 464; in Slovakia, 479; in Spain, 532; in Sweden, 550, 551–2; in Switzerland, 571; in the United Kingdom, 590–1. See also witnesses, lawyers as ‘lawyer’s perfidy’ in Greece, 203 legal advice privilege in the United Kingdom, 585 legal assistance, right to: in Belgium, 54; in Latvia, 295; recognition of right of professional secrecy under, 6–7 legal assistants and staff: in Austria, 36; in Belgium, 62; in Bulgaria, 81; in Cyprus, 94; in the Czech Republic, 110; in Denmark, 129; in Estonia, 140; in Finland, 158; in France, 175; in Germany, 190; in Greece, 208; in Hungary, 227; in Iceland, 246–7; in Ireland, 262; in Italy, 282; in Latvia, 299; in Liechtenstein, 315; in Lithuania, 324, 325; in Luxembourg, 336–7; in Malta, 358; in the

616

Netherlands, 381; in Norway, 399; in Poland, 425–7; in Portugal, 449; in Romania, 465; in Scotland, 591; in Slovakia, 481; in Slovenia, 502; in Spain, 534; in Sweden, 553; in Switzerland, 572; in the United Kingdom, 591 legal bases for professional secrecy, 4–10: in Austria, 30–1; in Belgium, 52–4; in Bulgaria, 74–7; in Cyprus, 89–91; in the Czech Republic, 106–7; in Denmark, 124–6; due process, 5–6, 395; equal treatment, 53; in Estonia, 137; in Finland, 150–2; in France, 173; in Germany, 184–5; in Greece, 202–3; in Hungary, 223; in Iceland, 240–2; in Ireland, 260; in Italy, 271–3; in Latvia, 291–3; in Liechtenstein, 311; in Lithuania, 322–3; in Luxembourg, 333; in Malta, 345–9; in the Netherlands, 368–71; in Norway, 393–6; in Poland, 413–14; in Portugal, 443–4; in Romania, 461–2; in Slovakia, 478; in Slovenia, 496–9; in Spain, 525–7; in Sweden, 546–7; in Switzerland, 564–6; in the United Kingdom, 586 legal proceedings to obtain fees. See lawyers involved in court cases legal professional privilege (LPP) in the United Kingdom, 585 Liechtenstein, professional secrecy in, 310–19: Act on Attorneys-at-Law (RAG), 311; Austrian influence on, 311; bar association responsibilities, 316; benefit of protection extending to persons other than client, 312; court jurisdiction over, 316; criminal sanctions, 317; disciplinary sanctions, 317; Due Diligence Act, 318; ethical bases for, 311; external service providers, 315; higher values prevailing over, 315; historical background, 316; law firms, 315; legal assistants and staff, 315; legal bases for, 311; limitations and derogations,

Index

314–15; media relations, 319; multidisciplinary associations, 315; obvious or insignificant facts, 312; persons subject to, 314; phone tapping, 319; sanctions, 317; scope of protected information, 312–14; searches of law offices, 318; self-incrimination, protection against, 314–15; state security services, 319; tax authorities and, 319; terrorism and money laundering, 318; waivers by client, 314; witnesses, lawyers as, 319 limitations and derogations, 13–15: in Austria, 33–5; in Belgium, 56, 58–61; in Bulgaria, 79–80; in Cyprus, 93–4; in the Czech Republic, 108–9; in Denmark, 127–8; in Estonia, 138–9; in Finland, 155–6; in France, 174–5; in Germany, 186–9; in Greece, 206; in Hungary, 224–6; in Iceland, 244–6; in Ireland, 261; in Italy, 279–81; in Latvia, 294, 295–8; in Liechtenstein, 314–15; in Lithuania, 323–5; in Luxembourg, 335–6; in Malta, 353–7; in the Netherlands, 376–9, 386; in Norway, 397–8; in Poland, 420–5; in Portugal, 446–9; in Romania, 464; in Scotland, 590, 591; in Slovakia, 479–80; in Slovenia, 501–2; in Spain, 530–3; in Sweden, 550–2; in Switzerland, 570–1; in the United Kingdom, 589–91 Lithuania, professional secrecy in, 321–31: bankruptcy, insolvency and indebtedness, 329; bar association responsibilities, 326, 327–8; civil damages, 328; court jurisdiction over, 326; criminal sanctions, 328; disciplinary sanctions, 327–8; ethical bases for, 322, 326; external service providers, 324, 325; historical background, 326; judicial investigations, lawyer’s documents and correspondence in, 329; law firms, 324, 325; Law on the Bar, 322; Law on Money Laundering and Terrorist

Financing Prevention, 328–9; Law on Tax Administration, 330; legal assistants and staff, 324, 325; legal bases for, 322–3; limitations and derogations, 323–5; media relations, 330; multidisciplinary associations, 326; persons subject to, 323; phone tapping, 330; public conversations between clients and attorneys, 324, 325; sanctions, 327–8; scope of protected information, 323; searches of law offices, 330; state security services, 331; tax authorities and, 330; terrorism and money laundering, 328–9; waivers by client, 324, 325; witnesses, lawyers as, 330 litigation privilege: in Ireland, 260; in the United Kingdom, 585 lobbying, in Slovenia, 513–14 loyalty, duty of, in Austria, 31 Luxembourg, professional secrecy in, 333: bankruptcy, insolvency and indebtedness, 335; bar association authorities, disclosure to, 335; bar association responsibilities, 338, 339, 342; civil damages, 340; court jurisdiction over, 338; criminal sanctions, 339, 340; disciplinary sanctions, 339, 340; ethical bases for, 333; external service providers, 337; higher values prevailing over, 335; historical background, 337–8; judicial investigations, lawyer’s documents and correspondence in, 341–3; law firms, 336; Law on Fighting Money Laundering and Financing of Terrorism 2004, 340–1; Law on the Legal Profession 1991, 333, 338; legal assistants and staff, 336–7; legal bases for, 333; limitations and derogations, 335–6; media relations, 342; multidisciplinary associations, 337; persons subject to, 334–5; phone tapping, 342; sanctions, 339–40; scope of protected information, 333–4; searches of law offices, 341–2; state

617

Index

security services, 343; tax authorities and, 343; terrorism and money laundering, 340–1; waivers by client, 335, 336; witnesses, lawyers as, 342 MacDonald, Kirsteen, 584 Malta, professional secrecy in, 345–65: bankruptcy, insolvency and indebtedness, 363; bar association authorities, disclosure to, 355; bar association responsibilities, 360–2; civil damages, 362; court jurisdiction over, 360; criminal sanctions, 362; disciplinary sanctions, 360–2; ethical bases for, 347; external service providers, 358–9; higher values prevailing over, 348; historical background, 359–60; Income Tax Management Act, 365; judicial investigations, lawyer’s documents and correspondence in, 363–4; law firms, 358; legal assistants and staff, 358; legal bases for, 345–9; limitations and derogations, 353–7; media relations, 365; multidisciplinary associations, 359; persons subject to, 351–3; phone tapping, 364; Prevention of Money Laundering and Funding of Terrorism Regulations, 2008, 353–4, 362–3; Professional Secrecy Act, 345–6, 359; sanctions, 360–2; scope of protected information, 349–51; searches of law offices, 364; state security services, 365; tax authorities and, 365; terrorism and money laundering, 353–4, 362–3; waivers by client, 355–6; witnesses, lawyers as, 356, 357, 364 Marchwicki, Wojciech, 412 martial law, war or state of emergency, in Bulgaria, 80 matrimonial claims and professional secrecy, in the United Kingdom, 589–90 media relations: in Austria, 49; in Belgium, 71; in Bulgaria, 87; in

618

Cyprus, 103; in the Czech Republic, 121; in Denmark, 135; in Estonia, 148; in Finland, 170; in France, 181; in Germany, 199; in Greece, 218–19; in Hungary, 237; in Iceland, 257; in Ireland, 268; in Italy, 280, 288–9; in Latvia, 309; in Liechtenstein, 319; in Lithuania, 330; in Luxembourg, 342; in Malta, 365; in the Netherlands, 390; in Norway, 410–11; in Poland, 438; in Portugal, 459; in Romania, 474; in Slovakia, 492; in Slovenia, 520–1; in Spain, 543; in Sweden, 562; in Switzerland, 582; in the United Kingdom, 604 medical secrecy, 2 Mihailescu, Anca, 460 military security. See state security services minors, neglect or abuse of: in Belgium, 68; in Denmark, 134; in France, 175; in Ireland, 261; in Latvia, 297; in Liechtenstein, 315; in Slovenia, 501; in the United Kingdom, 589 money laundering and professional secrecy. See terrorism and money laundering multidisciplinary associations: in Austria, 37; in Belgium, 62–3; in Bulgaria, 81; in Cyprus, 95; in the Czech Republic, 111; in Denmark, 130; in Estonia, 140; in Finland, 158–9; in France, 175; in Germany, 191; in Greece, 209; in Hungary, 227; in Iceland, 247; in Ireland, 262; in Italy, 282; in Latvia, 300; in Liechtenstein, 315; in Lithuania, 326; in Luxembourg, 337; in Malta, 359; in the Netherlands, 381; in Northern Ireland, 592; in Norway, 399–400; in Poland, 427; in Portugal, 449; in Romania, 465–6; in Scotland, 592; in Slovakia, 481; in Slovenia, 503; in Spain, 535; in Sweden, 554; in Switzerland, 572; in the United Kingdom, 592

Index

Nahtigal, Nataˇsa Pipan, 494 Netherlands, professional secrecy in, 367–91: Act to Prevent Money Laundering and Financing of Terrorism (WWFT), 385–6; attorney–client privilege distinguished from, 368; bar association authorities, disclosure to, 378–9; bar association responsibilities, 382, 383–4; civil damages, 384; court jurisdiction over, 383; criminal sanctions, 384, 385; disciplinary sanctions, 378–9, 383–4, 385; ethical bases for, 368, 382; external service providers, 381; higher values prevailing over, 374, 376, 377; historical background, 381–2; judicial investigations, lawyer’s documents and correspondence in, 386–7; law firms, 379–81; legal assistants and staff, 381; legal bases for, 368–71; limitations and derogations, 376–9, 386; media relations, 390; multidisciplinary associations, 381; persons subject to, 373–6; phone tapping, 388–9; sanctions, 383–5; scope of protected information, 371–3; searches of law offices, 387–8; state security services, 390–1; tax authorities and, 390; terrorism and money laundering, 385–6; waivers by client, 379; witnesses, lawyers as, 377, 389–90 Niedu˙zak, Marek, 412 non bis in idem, in Spain, 538 Northern Ireland: bar association responsibilities in, 594–5, 599; criminal sanctions in, 600; disciplinary sanctions in, 599, 600; judicial investigations, lawyer’s documents and correspondence in, 603; multidisciplinary associations in, 592; Police and Criminal Evidence (Amendment) (Northern Ireland) Order 2007, 603; as separate legal jurisdiction within the United Kingdom, 585; tax authorities,

investigations by, 605. See also United Kingdom Norway, professional secrecy in, 393–411: aviation accidents, 398; bar association responsibilities, 400–1; civil damages, 401; court jurisdiction over, 400; criminal sanctions, 397, 401; disciplinary sanctions, 400–1; disclosure duties, 401–2; ethical bases for, 394, 397, 400; external service providers, 399; higher values prevailing over, 397, 398; historical background, 400; judicial investigations, lawyer’s documents and correspondence in, 403–5; law firms, 398–9; legal assistants and staff, 399; legal bases for, 393–6; limitations and derogations, 397–8; media relations, 410–11; Money Laundering Act, 397, 402–3; multidisciplinary associations, 399–400; Personal Data Act, 397; personal data processing, 397; persons subject to, 397; phone tapping, 407–9; sanctions, 400–1; scope of protected information, 396–7; searches of law offices, 405–7; state security services, 411; surveillance, 398; tax authorities and, 397, 398, 411; terrorism and money laundering, 397, 398, 402–3; witnesses, lawyers as, 409–10 obvious or insignificant facts, non confidentiality of: in Germany, 186; in Liechtenstein, 312 OECD Model Tax Convention of 2005, 103 Olej, Jozef, 476 penalties. See sanctions personal data processing: in Iceland, 245, 251: in Italy, 274–7, 283; in Norway, 397; in Slovakia, 478–9, 484; in Switzerland, 579 personal injury actions and professional secrecy, in the United Kingdom, 589

619

Index

persons subject to duty of professional secrecy, 12–13: in Austria, 32–3; in Belgium, 56–8; in Bulgaria, 77–8; in Cyprus, 92–3; in the Czech Republic, 107; in Denmark, 127; in Estonia, 138; in Finland, 155; in France, 174; in Germany, 186; in Greece, 204–6; in Hungary, 224; in Iceland, 243–4; in Ireland, 261; in Italy, 278–9; in Latvia, 294–5; in Liechtenstein, 314; in Lithuania, 323; in Luxembourg, 334–5; in Malta, 351–3; in the Netherlands, 373–6; in Norway, 397; in Poland, 417–20, 439; in Portugal, 446; in Romania, 463; in Scotland, 589; in Slovakia, 479; in Slovenia, 500–1; in Spain, 530; in Sweden, 550; in Switzerland, 569–70; in the United Kingdom, 588–9. See also external service providers; law firms; legal assistants and staff; multidisciplinary associations phone tapping, 17: in Austria, 46–7; in Belgium, 70; in Bulgaria, 86; in Cyprus, 101–2; in the Czech Republic, 120; in Denmark, 134; in Estonia, 147; in Finland, 167–8; in France, 181; in Germany, 198; in Greece, 216–17; in Hungary, 234–5; in Iceland, 253; in Ireland, 267–8; in Italy, 288; in Latvia, 307–8; in Liechtenstein, 319; in Lithuania, 330; in Luxembourg, 342; in Malta, 364; in the Netherlands, 388–9; in Norway, 407–9; in Poland, 435–6; in Portugal, 458; in Romania, 472; in Slovakia, 491–2; in Slovenia, 520; in Spain, 541; in Sweden, 561; in Switzerland, 580–1; in the United Kingdom, 603 physician–patient privilege, 2 poisoned tree doctrine, in Spain, 527, 543 Poland, professional secrecy in, 413–40: Act on Counteracting Money Laundering and Financing of Terrorism 2000, 413, 432–3; Act on Legal Advisers 1982, 413; Act on

620

Performance of Legal Services in the Republic of Poland by Foreign Lawyers 2002, 413, 417–19; advocates and legal advisers, 413; bankruptcy, insolvency and indebtedness, 433; bar association responsibilities, 429; court jurisdiction over, 429–30; criminal sanctions, 431–2; disciplinary sanctions, 430–2; ethical bases for, 414, 416–17; external service providers, 427; foreign lawyers, 417–19; higher values prevailing over, 421; historical background, 427–9; judicial investigations, lawyer’s documents and correspondence in, 434–5; law firms, 425; Law on Advocates 1982, 413; legal assistants and staff, 425–7; legal bases for, 413–14; limitations and derogations, 420–5; media relations, 438; multidisciplinary associations, 427; persons subject to, 417–20, 439; phone tapping, 435–6; sanctions, 430–2; scope of protected information, 414–17; searches of law offices, 434–5; state security services, 438–9; tax authorities and, 438; terrorism and money laundering, 432–3; waivers by client, 424–5, 439; witnesses, lawyers as, 436–7 police. See judicial investigations, lawyer’s documents and correspondence in; phone tapping; searches of lawyers’ offices; state security services Portugal, professional secrecy in, 442–59: advocates (lawyers) and solicitors, 442; bar association responsibilities, 451–2, 456; Bar Association’s Statute of 1984, 450–1; civil damages, 452; court jurisdiction over, 452; criminal sanctions, 384, 452; disciplinary sanctions, 451–2; external service providers, 449; historical background, 450–1; judicial investigations, lawyer’s documents and

Index

correspondence in, 454; law firms, 449; legal assistants and staff, 449; legal bases for, 443–4; limitations and derogations, 446–9; media relations, 459; multidisciplinary associations, 449; persons subject to, 446; phone tapping, 458; Professional Statute, 443–4; sanctions, 451–3; scope of protected information, 444–6; searches of law offices, 454–8; state security services, 459; tax authorities and, 459; terrorism and money laundering, 448, 453; witnesses, lawyers as, 459 press. See media relations priests, professional secrecy of, 2 privilege, professional or attorney–client. See professional secrecy of lawyers in Europe professional secrecy of lawyers in Europe, 1–23: breaches of, 4 (see also sanctions); CCBE rules, 24–8 (see also Council of Bars and Law Societies of Europe); Competition Law (EC Regulation 1/2003) 21; concept of, 1–3; contractual basis, 11 (see also contractual basis for professional secrecy); correspondence between lawyers 3, 17–18, 470–1; court decisions and, 4, 5; criminal activity and, 13, 14 (see also criminal activity, concealment of; higher values prevailing over professional secrecy); debt collection, 9–10 (see also bankruptcy, insolvency and indebtedness); defined 3–4; Directive 2005/60/EC (Anti-money Laundering Directive), 5, 8, 13, 18–21; ethical bases, 11, 24–8; extent of obligation, 3; higher values prevailing over, 14 (see also higher values prevailing over professional secrecy); imminent serious crime or harm 14; legal bases for, 4–8, 10 (see also legal bases for professional secrecy); legal proceedings, outside context of 7; limitations and derogations, 2 (see also

limitations and derogations); money laundering and (see terrorism and money laundering); persons subject to duty of, 12–13 (see also persons subject to duty of professional secrecy); phone tapping, 17 (see also phone tapping); scope of information protected by, 11 (see also scope of protected information); searches of lawyers’ offices, 16 (see also searches of lawyers’ offices); terms for 2; terrorism (see terrorism and money laundering); waivers by client, (see also waiver of professional secrecy rights by client). See also specific countries public conversations between clients and attorneys, in Lithuania, 324, 325 public interest considerations, conflicts of professional secrecy with, 14. See also higher values prevailing over professional secrecy Radzins, Egils, 290 Recommendation (2000) 21, Committee of Ministers of the Council of Europe, 25 Richers, Roman, 563 Roman law, 209 Romania, professional secrecy in, 461–75: bar association responsibilities, 466, 467–8; civil damages, 468–9; court jurisdiction over, 466; criminal sanctions, 468, 469; disciplinary sanctions, 467–8, 469; external service providers, 465; higher values prevailing over, 464, 474; historical background, 466; judicial investigations, lawyer’s documents and correspondence in, 470–1; law firms, 464; legal assistants and staff, 465; legal bases for, 461–2; limitations and derogations, 464; media relations, 474; multidisciplinary associations, 465–6; persons subject to, 463; phone tapping, 472; sanctions, 467–9; scope of

621

Index

protected information, 462–3; searches of law offices, 471–2; state security services, 474; Statute of Romanian Lawyers, 461; tax authorities and, 474; terrorism and money laundering, 469–70; waivers by client, 463; witnesses, lawyers as, 473–4 sanctions: in Austria, 38–42; in Belgium, 64–6; in Bulgaria, 83–5; in Cyprus, 96–8; in the Czech Republic, 113–17; in Denmark, 131–3; in Estonia, 141–4; in Finland, 161–5; in France, 177–8; in Germany, 193–5; in Greece, 211–14; in Hungary, 230–2; in Iceland, 249–51; in Ireland, 263–5; in Italy, 284–6; in Latvia, 302–4; in Liechtenstein, 317; in Lithuania, 327–8; in Luxembourg, 339–40; in Malta, 360–2; in the Netherlands, 383–5; in Norway, 400–1; in Poland, 430–2; in Portugal, 451–3; in Romania, 467–9; in Slovakia, 484–5; in Slovenia, 506–12; in Spain, 536–8; in Sweden, 556–8; in Switzerland, 575–8; in the United Kingdom, 595–600. See also civil damages; criminal sanctions; disciplinary sanctions scope of protected information, 11–12: in Austria, 31–2; in Belgium, 54–6; in Bulgaria, 77; in Cyprus, 91–2; in the Czech Republic, 107; in Denmark, 126–7; in Estonia, 137–8; in Finland, 152–5; in France, 173; in Germany, 185–6; in Greece, 203–4; in Hungary, 223–4; in Iceland, 242–3; in Ireland, 260; in Italy, 277–8; in Latvia, 293–4; in Liechtenstein, 312–14; in Lithuania, 323; in Luxembourg, 333–4; in Malta, 349–51; in the Netherlands, 371–3; in Norway, 396–7; in Poland, 414–17; in Portugal, 444–6; in Romania, 462–3; in Slovakia, 478–9; in Slovenia, 499–500; in Spain, 527–30; in Sweden, 547–50; in Switzerland, 567–9; in the United Kingdom, 586–8

622

Scotland: bankruptcy, insolvency and indebtedness in, 590; bar association responsibilities in, 594, 597–9; criminal sanctions in, 600; disciplinary sanctions in, 597–9, 600; ethical basis for professional secrecy in, 586; judicial investigations, lawyer’s documents and correspondence in, 602; Legal Aid (Scotland) Act 1986, 590; legal assistants and staff in, 591; Legal Services (Scotland) Act 2010, 592; limitations and derogations in, 590, 591; multidisciplinary associations in, 592; persons subject to duty of professional secrecy in, 589; as separate legal jurisdiction within the United Kingdom, 585; tax authorities, investigations by, 605; waiver of professional secrecy rights by client in, 591. See also United Kingdom searches of lawyers’ offices, 16–17: in Austria, 45–6, 49–50; in Belgium, 69–70; in Bulgaria, 86; in Cyprus, 101; in the Czech Republic, 119–20; in Denmark, 134; in Estonia, 146; European Court of Human Rights and, 167; in Finland, 167; in France, 180–1; in Germany, 198; in Greece, 216; in Hungary, 233–4; in Iceland, 253; in Ireland, 266; in Italy, 287–8; in Latvia, 307; in Liechtenstein, 318; in Lithuania, 330; in Luxembourg, 341–2; in Malta, 364; in the Netherlands, 387–8; in Norway, 405–7; in Poland, 434–5; in Portugal, 454–8; in Romania, 471–2; in Slovakia, 490–1; in Slovenia, 516–18; in Spain, 541; in Sweden, 560–1; in Switzerland, 580; in the United Kingdom, 603 secrecy, professional. See professional secrecy of lawyers in Europe security services. See state security services self-defence, lawyer’s right of. See lawyers involved in court cases

Index

self-incrimination, protection against, 314–15 sexual abuse crimes: in Belgium, 68; in France, 175; in Slovenia, 501 ´ Arinbj¨orn, 239 Sigurðsson, Olafur Sj¨ostrand, Minna, 545 Slovakia, professional secrecy in, 477–93: bankruptcy, insolvency and indebtedness, 487; bar association responsibilities, 483–5, 490–1; Business Licensing Act, 478; civil damages, 484; court jurisdiction over, 484; criminal sanctions, 485; Data Protection Act, 478–9; disciplinary sanctions, 484–5; external service providers, 481; historical background, 481–3; judicial investigations, lawyer’s documents and correspondence in, 487–90; law firms, 480; legal assistants and staff, 481; legal bases for, 478; Legal Profession Act, 478, 483; limitations and derogations, 479–80; media relations, 492; Money Laundering Act, 480, 485–7; multidisciplinary associations, 481; personal data processing, 478–9, 484; persons subject to, 479; phone tapping, 491–2; sanctions, 484–5; scope of protected information, 478–9; searches of law offices, 490–1; state security services, 493; tax authorities and, 493; terrorism and money laundering, 480, 485–7; waivers by client, 479; witnesses, lawyers as, 492 Slovenia, professional secrecy in, 495–523: Attorneys Act, 499, 504; bar association responsibilities, 504–5, 506–9, 516; civil damages, 510–11; competition proceedings, 515–16; court jurisdiction over, 506; criminal sanctions, 509–10, 511–12; disciplinary sanctions, 506–9, 511–12; ECHR, Constitutional Court’s invocation of, 498; ethical bases for, 499; external service providers, 503; higher values prevailing over, 501,

510; historical background, 503–4; Inspections Act, 518; Integrity and Prevention of Corruption Act, 513–14; judicial investigations, lawyer’s documents and correspondence in, 514–16; law firms, 502; legal assistants and staff, 502; legal bases for, 496–9; Liability of Legal Persons for Criminal Offences Act, 498, 509; limitations and derogations, 501–2; lobbying activities, 513–14; Market Inspectorate, jurisdiction of, 506, 521; media relations, 520–1; Ministry of Justice, jurisdiction of, 506; multidisciplinary associations, 503; persons subject to, 500–1; phone tapping, 520; Prevention of Money Laundering and Terrorist Financing Act, 502, 512–13; Prevention of the Restriction of Competition Act, 515–16; sanctions, 506–12; scope of protected information, 499–500; searches of law offices, 516–18; Security Agency Act, 522; state security services, 522; tax authorities and, 521–2; terrorism and money laundering, 502, 512–13; waivers by client, 501; witnesses, lawyers as, 518–20 Socrates, 209 Sovdat, Jadranka, 517 Spain, professional secrecy in, 525–44: bankruptcy, insolvency and indebtedness, 540; bar association responsibilities, 536–7; civil damages, 538; correspondence between lawyers, 3, 17–18, 470–1, 528; court jurisdiction over, 536; criminal sanctions, 538; disciplinary sanctions, 536–7, 538; ethical bases for, 534; external service providers, 535; fruit of the poisoned tree doctrine, 527, 543; General Tax Law, 531; higher values prevailing over, 532; historical background, 535–6; judicial investigations, lawyer’s documents and

623

Index

correspondence in, 540–1; law firms, 533–4; legal assistants and staff, 534; legal bases for, 525–7; limitations and derogations, 530–3; media relations, 543; multidisciplinary associations, 535; non bis in idem, 538; persons subject to, 530; phone tapping, 541; sanctions, 536–8; scope of protected information, 527–30; searches of law offices, 541; Spanish Lawyers General Statute, 526; state security services, 543; tax authorities and, 531, 543; terrorism and money laundering, 539–40; waivers by client, 533; witnesses, lawyers as, 542–3 spousal claims and professional secrecy, in the United Kingdom, 589–90 state of emergency, martial law, or war, in Bulgaria, 80 state security services: in Austria, 49–50; in Belgium, 72; in Bulgaria, 87; in Cyprus, 103–4; in the Czech Republic, 122; in Denmark, 135; in Estonia, 148; in Finland, 171; in France, 182; in Germany, 199; in Greece, 220; in Hungary, 238; in Ireland, 269; in Italy, 289; in Latvia, 309; in Liechtenstein, 319; in Lithuania, 331; in Luxembourg, 343; in Malta, 365; in the Netherlands, 390–1; in Norway, 411; in Poland, 438–9; in Portugal, 459; in Romania, 474; in Slovakia, 493; in Slovenia, 522; in Spain, 543; in Sweden, 562; in Switzerland, 583; in the United Kingdom, 605 statutory bases. See legal bases for professional secrecy Stewart, Nielson S´anchez, 524 suicides, planned, in Sweden, 552 supervisory authority: in Switzerland, 573–4, 575–7. See also bar association responsibilities; court jurisdiction over professional secrecy surveillance: in Ireland, 261, 268; in Norway, 398. See also phone tapping

624

Sweden, professional secrecy in, 546–62: bankruptcy, insolvency and indebtedness, 548, 558; bar association responsibilities, 554–5, 556–7; civil damages, 557; Competition Act, 559; competition proceedings, 559; court jurisdiction over, 555–6; criminal sanctions, 557–8; disciplinary sanctions, 556–8; ethical bases for, 546; external service providers, 553; higher values prevailing over, 552, 559; historical background, 554; judicial investigations, lawyer’s documents and correspondence in, 559–60; law firms, 552–3; legal assistants and staff, 553; legal bases for, 546–7; limitations and derogations, 550–2; media relations, 562; Money Laundering and Terrorist Financing Prevention Act, 551, 558; multidisciplinary associations, 554; persons subject to, 550; phone tapping, 561; sanctions, 556–8; scope of protected information, 547–50; searches of law offices, 560–1; state security services, 562; suicides, planned, 552; tax authorities and, 551, 562; terrorism and money laundering, 551, 558; waivers by client, 550; witnesses, lawyers as, 551, 561–2 Switzerland, professional secrecy in, 564–83: bankruptcy, insolvency and indebtedness, 578; bar association responsibilities, 574–5; benefit of protection extending to persons other than client, 312; civil damages, 577; criminal sanctions, 577; Data Protection Act, 579; Debt Collection and Bankruptcy Act, 578; disciplinary sanctions, 575–7; ethical bases for, 566; external service providers, 572; Federal Tribunal Act, 574; Free Movement of Lawyers Act (FMLA), 565–6, 573; historical background, 573; Homeland Security Act, 583; judicial investigations, lawyer’s documents and correspondence in,

Index

579–80; law firms, 571–2; legal assistants and staff, 572; legal bases for, 564–6; limitations and derogations, 570–1; media relations, 582; multidisciplinary associations, 572; personal data processing, 579; persons subject to, 569–70; phone tapping, 580–1; sanctions, 575–8; scope of protected information, 567–9; searches of law offices, 580; state security services, 583; supervisory authority, 573–4, 575–7; tax authorities and, 582–3; terrorism and money laundering, 578; waivers by client, 570–1; witnesses, lawyers as, 581–2 Taivalkoski, Petri, 149 tax authorities, investigations by: in Austria, 49; in Belgium, 54, 71–2; in Bulgaria, 87; in Cyprus, 103; in the Czech Republic, 121; in Denmark, 134; in Estonia, 148; in Finland, 170–1; in France, 180, 182; in Germany, 199; in Greece, 220; in Hungary, 237; in Iceland, 245, 251, 258; in Ireland, 268–9; in Italy, 289; in Latvia, 309; in Liechtenstein, 319; in Lithuania, 330; in Luxembourg, 343; in Malta, 365; in the Netherlands, 390; in Northern Ireland, 605; in Norway, 397, 398, 411; in Poland, 438; in Portugal, 459; in Romania, 474; in Scotland, 605; in Slovakia, 493; in Slovenia, 521–2; in Spain, 531, 543; in Sweden, 551, 562; in Switzerland, 582–3; in the United Kingdom, 604–5 telephone and telecommunications lines, tapping. See phone tapping terrorism and money laundering: in Austria, 34; in Belgium, 58, 67–8; in Bulgaria, 79–80, 85; in Cyprus, 93, 98–100; in the Czech Republic, 117–18; in Denmark, 133; Directive 2005/60/EC (Anti-money Laundering Directive), 5, 8, 13, 18–21; in Estonia, 144–6; exclusion of certain advisers

from professional secrecy obligations, 13; in Finland, 155, 165–6; in France, 178–9; in Germany, 187–8, 195–6; in Greece, 214–15; in Hungary, 232; in Iceland, 245, 251–2; in Ireland, 265–6; in Italy, 286–7; in Latvia, 292, 295, 296, 297, 304–6; in Liechtenstein, 318; limitations on professional secrecy, 14; in Lithuania, 328–9; in Luxembourg, 340–1; in Malta, 353–4, 362–3; in the Netherlands, 385–6; in Norway, 397, 398, 402–3; in Poland, 432–3; in Portugal, 448, 453; right of professional secrecy in cases involving, 10; in Romania, 469–70; in Slovakia, 480, 485–7; in Slovenia, 502, 512–13; in Spain, 539–40; in Sweden, 551, 558; in Switzerland, 578; in the United Kingdom, 600–1. See also state security services testamentary dispositions, in Ireland, 261 Thewes, Marc, 332 Tompaidis, Ilias, 200 Transparency Register for Lobbyists, 21–2 Tsadiras, Alexandros, 88 United Kingdom, professional secrecy in, 585–605: bankruptcy, insolvency and indebtedness, 602; bar association responsibilities, 593–600; CCBE rules and, 27; Children Act 1989, 589, 590; court jurisdiction over, 595; Criminal Justice and Police Act 2001, 602; criminal sanctions, 600; disciplinary sanctions, 595–600; Drug Trafficking Act 1994, 590; external service providers, 591–2; historical background, 593; Human Rights Act 1988, 589; judicial investigations, lawyer’s documents and correspondence in, 602–3; law firms, 591; legal assistants and staff, 591; legal bases for, 586; legal professional privilege (LPP), legal advice privilege, and litigation privilege, 585; Legal

625

Index

Services Act 2007, 592; limitations and derogations, 589–91; Matrimonial Causes Act 1973, 590; media relations, 604; Money Laundering Regulations 2007, 600; multidisciplinary associations, 592; persons subject to, 588–9; phone tapping, 603; Police Act 1997, 603; Police and Criminal Evidence Act 1984, 603; Proceeds of Crime Act 2002, 601; Regulation of Investigatory Powers Act 2000, 605; sanctions, 595–600; scope of protected information, 586–8; searches of law offices, 603; Security Service Act 1989, 605; Solicitors Act 1974, 600, 605; state security services, 605; tax authorities and, 604–5; Taxes Management Act 1970, 604; Terrorism Act 2000, 601; terrorism and money laundering, 600–1; waivers by client, 590–1; witnesses, lawyers as, 604. See also Northern Ireland; Scotland United Nations Congress on the Prevention of Crime and the Treatment of Offenders, Basic Principles on the Role of Lawyers, 25 Universal Declaration of Human Rights and CCBE rules, 25 Vishanin, Mihail, 73 Voulgarakis, Konstantinos, 200 waiver of professional secrecy rights by client, 15: in Austria, 34–5; in Belgium, 61; in Bulgaria, 76; in Cyprus, 93; in the Czech Republic, 109; in Denmark, 125, 128; in Estonia, 139; in Finland, 155; in France, 174–5; in Germany, 185, 186–7, 189; in

626

Greece, 207; in Hungary, 224–6; in Iceland, 246; in Ireland, 260; in Italy, 280–1; in Liechtenstein, 314; in Lithuania, 324, 325; in Luxembourg, 335, 336; in Malta, 355–6; in the Netherlands, 379; in Poland, 424–5, 439; in Romania, 463; in Scotland, 591; in Slovakia, 479; in Slovenia, 501; in Spain, 533; in Sweden, 550; in Switzerland, 570–1; in the United Kingdom, 590–1 Wales. See United Kingdom war, martial law or state of emergency, in Bulgaria, 80 Wieser and Bicos Beteiligungen GmbH v. Austria (European Court of Human Rights, 2007), 517 wiretapping. See phone tapping witnesses, lawyers as: in Austria, 47–8; in Belgium, 61–2, 70–1; in Bulgaria, 76, 87; in Cyprus, 102; in the Czech Republic, 120–1; in Denmark, 134–5; in Estonia, 147–8; European Court of Human Rights on, 168–70; in Finland, 155, 168–70; in France, 181; in Germany, 197, 198–9; in Greece, 210, 217–18; in Hungary, 235–7; in Iceland, 245, 254–7; in Ireland, 268; in Italy, 288; in Latvia, 308; in Liechtenstein, 319; in Lithuania, 330; in Luxembourg, 342; in Malta, 356, 357, 364; in the Netherlands, 377, 389–90; in Norway, 409–10; in Poland, 436–7; in Portugal, 459; in Romania, 473–4; in Slovakia, 492; in Slovenia, 518–20; in Spain, 542–3; in Sweden, 551, 561–2; in Switzerland, 581–2; in the United Kingdom, 604