The legal framework for the security of communications is laid down in the Czech Charter of Fundamental Rights and Freedoms (‘Charter’).
Article 37(2) of the Charter provides for the right to legal aid in proceedings before the courts, other State bodies and bodies of public administration. The right to privacy against personal interference and confidentiality of letters is laid down in Articles 10(2) and 13 of the Charter.
The security of confidential correspondence between a lawyer and his client is laid down in Act No. 85/1996 Coll. In compliance with that rule, a lawyer is obligated to maintain professional confidentiality in respect of any information known to him or her in connection with the provision of legal services.
Legal professional immunity usually comes into play in criminal, administrative and civil cases when an on-the-spot search of a commercial property, office or house is carried out by public authorities. It concerns, for example, the situation in which an officer of the Office for the Protection of Competition (‘Office’) enters the commercial premises of competitors and discovers, among other documents, documents which prove that an infringement in the field of competition law has been committed.
Czech case law, which acknowledges the principle of legal professional privilege, is underdeveloped. While the rules regulating legal professional privilege are not explicitly laid down in any legal statute, this definition has been developed by case law in the field of competition law on the basis of general legal principles.
Generally, in order to be acquainted with the content of the correspondence between a lawyer and his client, the public authority is obliged to obtain the permission of the representative of the Czech Bar Association (‘Chamber’) and to inspect the content in the presence of the representative of the Chamber. The consent of the delegate of the Chamber can be substituted by a court order on the request of a public body demanding the disclosure of the records. However, this practice (i.e. obtaining the permission of a delegate of the Chamber or of a court order) occurs only in cases where it is necessary by statute to be followed and, in general, where the inspection is carried out at the premises of a lawyer. The policy does not apply when an investigation is carried out at the customer’s premises.
Where a public authority seizes evidence containing correspondence between a lawyer and his client from the premises of a party to administrative proceedings, no permission is required from the representative of the Chamber or from a court order.
Legal professional privilege is discussed by the court when action is taken against a public official in the administrative justice system. In accordance with the case law of the Supreme Administrative Court and the Regional Court of Brno, the seizure and familiarization of documents containing correspondence between a lawyer and a client does not interfere with the law.
Scope of Legal Professional Privilage
What is being covered by legal professional privilege?
Protection against seizure of records at the premises of a lawyer shall extend to all information submitted by the client and the lawyer relating to the proceedings and exchanged either before or after the commencement of proceedings before the public authority. The security of confidential information begins with the mere planning for representation in the proceedings, particularly at a time when the client returns to the lawyer and seeks legal services.
There is no express control of ‘secure’ records or of communications. This refers to any spoken or written messages, records or correspondence shared between the lawyer and the client. Any violation of this obligation may result in fines being levied by the Chamber and, in some cases, the lawyer could be found criminally liable.
Is correspondence with in-house counsel secured by legal professional privilege?
Compared to external independent lawyers, in-house lawyers are in a different position, particularly on practical, systemic and hierarchical grounds. Communications between a corporation and its in-house counsel are not secured from seizures.
Will the legal professional privilage of non-national trained lawyers extend to correspondence?
Current Czech case law does not include any guidelines as to whether interactions with foreign skilled lawyers are covered. Most possibly, the national approach would follow the stance of EU law, i.e. the response would be that a lawyer must be eligible to practice law in an EEA country, unless there are clear grounds for a deviant position.
How legal professional privilage is waived?
A lawyer may be exempted from the obligation of confidentiality only by the renunciation of the client or the death of the client or the liquidation of the client by the legal successor. Where the subject-matter of the litigation is a conflict between the client or his legal successor, the lawyer shall not be bound by the obligation of confidentiality to the degree that the information is needed for proceedings before the court or any authority.
The duty of confidentiality does not extend to the duty of prevention of criminal offenses imposed by statute.