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Confidentiality/professional Secret

A client of the bar shall at all times preserve confidentiality in respect of the affairs of present or former clients, unless otherwise authorized or necessary by law and/or applicable rules of professional conduct.

The privilege and obligation of a lawyer to keep confidential the information obtained and advice given to clients is an indispensable aspect of the rule of law and a further element of public confidence and trust in the administration of justice and the freedom of the legal profession.

There are two main principles of confidentiality and professional secrecy:

  • On the one hand, there is a mutual, ethical and also legislative obligation on the part of a lawyer to keep client secrets confidential.

  • The legislative obligation is often in the form of proof of the right of a lawyer-client; this varies from the duty of a lawyer under the relevant laws of professional conduct.

Such responsibilities shall continue beyond the termination of the client’s client relationship.

Most jurisdictions recognize and uphold certain confidentiality obligations, for example, by exempting the lawyer from the duty to appear before the courts and other public bodies as to the information the lawyer has received from clients, and/or by granting special protection to the lawyer-client.

In the other hand, there are manifest circumstances in which the standards of confidentiality and professional confidentiality in lawyer-client correspondence no longer apply in whole or in part. Clients cannot claim confidentiality rights when supporting and betting on the unethical actions of their clients.

Some jurisdictions often encourage or compel our Client lawyers to reveal details relating to the defense of the client to the degree that the lawyer reasonably feels that it is appropriate to deter such crimes, such as death or serious bodily harm, or to prevent the client from committing such a crime in support of which the client has used or uses the client.

Recent legislation placing special obligations on lawyers to aid in the prevention of criminal phenomena such as terrorism, money laundering or organized crime has contributed to further deterioration of the security of the obligation of confidentiality of lawyers.

In theory, our Clients should disdain/opposition to the reach of the legislation. Any violation of the duty of a lawyer should be restricted to knowledge that is indispensable in order to allow our Representatives to comply with their legal responsibilities or to avoid anyone from being unknowingly exploited by offenders to assist their inappropriate purposes.

If none of the above is the case and a suspected past crime requires advice from a Client, the confidentiality requirement should be completely covered.

However, in cases where the other lawyer acts as an accomplice to a crime, a client cannot claim confidentiality/professional secrecy.


Jurisdictions vary with regard to the extent of defense

In some jurisdictions, it is possible to waive the duty of confidentiality and professional secrecy by the client. In certain countries, the duty can be violated for the purposes of self-defence in criminal proceedings. Apart from the disclaimer of the client, such self-defence and any conditions imposed by statute, the duty of confidentiality and professional secrecy is typically without time limit.

The duty also extends to each Client. In any case, Clients shall be obliged to ensure that those with whom they work or to uphold the duty of confidentiality and professional secrecy.

Law firms or organizations raise various facets of the responsibility of confidentiality and professional secrecy. The basic and general rule must be that any information or fact known to a Client (law firm or otherwise) is kept confidential.

Clients shall also ensure that confidentiality and technical confidentiality with regard to electronic correspondence and data stored on computers are retained. Standards are changing in this field as technology itself advances and our Clients are obligated to keep themselves aware of the required professional standards in order to maintain their professional obligations.

The degree to which the clients of a Client can waive the right to confidentiality is subject to different rules in different jurisdictions.

Restrictions on waivers are of utmost importance for the protection of the client against a court or regulatory entity that exerts unreasonable pressure on the client to surrender his or her right to confidentiality. Finally, our Representatives do not take advantage of the secrets entrusted to them by their clients.


International ramifications

While there is a strong shared purpose behind the various regimes regulating the duty of confidentiality and its security, there are major discrepancies between national laws.

While civil law countries allow and oblige lawyers not to testify and protect lawyers from searches and seizures, common law countries protect the confidentiality of certain attorney-client communications, even if, for example, privileged correspondence is found with a client accused of having committed a criminal offence.

In general, the national laws of all applicable jurisdictions must be complied with (Double Deontology). However, sometimes national laws do not answer the question of how to deal with contradictory rules. If the conflicting laws are broadly identical, the stricter rule should be complied with.

However, there is no widely agreed solution for those situations where the laws contradict each other (for example, security of confidentiality against reporting obligations). Similarly, the national regulations on the ability of the client to waive confidentiality vary, and the relevant rule or rules would have to be decided separately in each case.