Definition
The theory of security of the confidentiality of information shared between a lawyer and his lawyer is laid down in Romanian law.
Via the principle of professional confidentiality, a customer. Professional confidentiality affects only the lawyer’s expertise and evidence in his possession. As a consequence, only when they are held by a prosecutor, not by the clients, are records related to a case secured.
Documents in the hands of the client are not usually covered, except in the case of an inquiry by the Competition Council, where protection is recognised for correspondence between the undertaking under investigation and its counsel, exchanged for the sole purpose of exercising the right of defense of the undertaking, according to the conditions laid down in the Competition Law.
Romania’s principles of legal professional privilege and professional confidentiality are governed by:
Law No. 51/1995 on the structure and practice of the profession of lawyer (‘Lawyer’s Law’) and the Statute of the Lawyer’s Profession (‘Lawyer’s Statute’)
Code of Romanian Civil Procedure
-The Romanian Penal Code and the Code of Criminal Procedure of Romania and
-Romanian Law No. 21/1996 on Competition (‘Competition Law’)
Legal professional privilege
The Lawyer’s Law provides for the professional confidentiality duty of the lawyer with respect to any part of a matter entrusted to them, unless the legislation provides otherwise (Article 11 of the Lawyer’s Law).
The definition of professional secrecy is broadly defined by the Statute of the Lawyer as covering any type of information, in any form and on any medium, given to the lawyer by the client for the purpose of obtaining legal assistance and for which the client has requested that confidentiality be maintained, as well as any documents drawn up by the lawyer containing or based on information pro In compliance with Article 10(1) and (4) of the Legislation of the Lawyer, the correspondence and information exchanged between the lawyer and the client, irrespective of the assistance, cannot, in any circumstances, be used as evidence in the light of legal proceedings and cannot be exhausted by confidentiality. Therefore, the Legislation of the Lawyer does not authorize any interference on the part of the State authorities with respect to the correspondence shared between the lawyer and his client. It should be noted, however, that the legal force of the Lawyer’s Legislation is inferior to that of a regulation and that its rules are also not enforceable in situations where the laws of superior force, such as those of the Competition Law or the Criminal Code, provide for particular cases in which the authorities of the State are not bound by professional privilege or professional confidentiality.
Lawyers may not be invited to testify and may not provide any authority or person with information on matters assigned to them, except where they have the prior, express and written consent of all clients who are involved in that matter (Article 45(2) of the Lawyer’s Law).
Legal professional privilege in the sense of civil litigation
The lawyer might not be called, under the Civil Procedure Code, to testify about facts gathered during the exercise of their professional duties. The client will, however, authorize the lawyer to appear before the court as a witness and provide details which would otherwise have been confidential and protected by professional confidentiality (Article 317 of the Civil Procedure Code).
Moreover, if the publication of a document violates a legal duty to protect a secret, the court must dismiss a petition for the filing of a document in the case file (Article 294(1) par. 2 from the Code of Civil Procedure).
Legal professional privilege in the sense of judicial inquiries
Only a prosecuting officer can take written documents kept by the lawyer or in the lawyer’s office on the basis of a warrant issued pursuant to law (Article 34(1) of the Lawyer’s Law).
Based on a recent update to the Lawyer’s Rule, it is not necessary to take or confiscate written documents containing lawyer-client correspondence or written documents containing the lawyer’s notes on client defense issues (Article 34(2) of the Lawyer’s Law).
Only under the strict conditions and procedure established by law (Article 34(3) of the Lawyer’s Law) may conversations and correspondence of a lawyer of a professional nature be intercepted or registered.
The relationship between the attorney and his client will not be subject to technical oversight (see footnote 1) unless there are signs that the attorney has committed or is planning to commit such particular crimes, such as money laundering, tax evasion, corruption, terrorism, crimes against the financial interests of the European Union, or in the case of other crimes subject to the provisions of the law.
The Code of Criminal Procedure specifically states that, during criminal proceedings, professional confidentiality can be objected to by the prosecutor (Article 306(6) of the Code of Criminal Procedure).
Article 147(2) of the Code of Criminal Procedure forbids the preservation or examination of correspondence sent or obtained between the lawyer and the suspect, the person indicted or any other person defended by the lawyer, except where the lawyer has committed such serious offenses, such as money laundering, tax evasion or corruption, or is planning to commit them.
Pursuant to Article 116(3) and (4) of the Code of Criminal Procedure, a witness may not be summoned to testify in respect of certain facts or circumstances of a secret or confidential nature which may, by statute, be questioned by the judicial authorities, unless a waiver is obtained from the recipient or if there is a provision to the contrary.
However, in compliance with relevant legislation relating, for example, to money laundering (Article 7 of Law 656/2002 on the prevention and punishment of money laundering and the implementation of certain measures to deter and combat the funding of terrorism), lawyers may be forced to reveal details about the identification and transactions of their clients.
Judicial professional privilege in the sense of antitrust / competition authority inquiries
For the first time after the reform of the Competition Law by Government Emergency Ordinance 75/2010, which entered into force on 5 August 2010, legal professional privilege in the light of inquiries by the competition authority (i.e. the Romanian Competition Council) was specifically controlled. Article 38(8) to (11) of the Competition Law and Article 24 of the Regulation concerning the structure, functioning and procedure of the Romanian Competition Council constitute the legal framework.
Legal professional scope
As mentioned above, under the regulations governing the legal profession, the principle of professional confidentiality has a very broad scope, including all communication and information exchanged between the lawyer and the client, but only to the degree that it is in the possession of the lawyer.
Legal professional privilege is specifically specified in the sense of the investigations conducted by the Romanian Competition Council and includes communications exchanged between the undertaking or group of undertakings under investigation and its lawyer for the sole purpose of exercising the right of defence of the undertaking before or after the opening of the administrative procedure on the basis of t. Preparatory records are no longer subject to legal immunity and may be confiscated and used as evidence (please see below for more information regarding the recent legal developments in this area).
Does legal professional privilege protect interactions with in-house counsel?
Unlike attorneys, in-house therapy is not perceived to be a liberal occupation. Similar to the current approach of the European Commission and the EU Court of Justice, the aforementioned legal provisions appear not to cover the situation of in-house counsel. However, under the special legislation regulating the profession of in-house counsel, in-house counsel are also obliged to comply with professional secrecy (Law no. 514/2003).
When the is right waived?
Article 46 of the Lawyer’s Law states that lawyers are not entitled to testify and are not entitled to provide any authority or person with information as to the matters entrusted to them, except where they have the prior, express and written consent of all clients who are involved in that matter.