Definition
Legal professional privilege is important to the proper practice of the legal profession. It is acknowledged and covered by the Constitution, the Code of Conduct of the Attorneys General, the Code of Civil Procedure, the Code of Criminal Procedure and the Criminal Code and is generally characterized as the duty of the lawyer to remain confidential for the benefit of his client, whatever information the client has provided him.
Legal professional privilege stems from the exclusive confidence relationship between the lawyer and the client. It is an agency that represents the public interest and thus includes all forms of contact between the parties. It survives the dissolution of the client-lawyer partnership and also survives the death of the client. Breach of the respective duties of the counsel as to the client is both a serious disciplinary and a criminal offence.
Important exceptions to the defense of legal professional rights are contained in Law 3691/2008 on money laundering and Law 3213/2003, as amended, on the responsibilities of some groups of individuals (e.g. judges, members of parliament, owners of sports companies, etc.) to apply to the tax authorities declarations of origin of their ownership of assets (the doctrine of ‘pothen eshes’ – ‘where from’). The two pieces of legislation contain similar provisions, provided that lawyers are obliged to warn the authorities of any breach of the applicable legislation when such knowledge is received in the sense of a specific course of business involving the provision of legal advice to their clients.
Legal professional privilege in the sense of civil litigation and criminal investigation
The general rule is that legal professional privilege extends to all information conveyed to the lawyer by the client and any exceptions to the rule are explicitly laid down in the provisions of the law. Legal professional immunity also extends to both civil and criminal litigation. In the case of civil litigation, in particular, it should be noted, first of all, that there is no duty in the Greek jurisdiction to release records, as this is interpreted in the form of English civil litigation proceedings. Disclosure of records is understood as a burden of procedure rather than a duty of law. Proof, including records, not generated within the timeframe given by the Code of Civil Procedure shall be inadmissible at a later stage without further consequences. In any case, a legal professional right exists and is covered in the sense of civil proceedings, and any submission of documents to the court is subject to the general rule set out above.
Similarly, legal professional privilege are protected in the case of criminal investigations.
While the Commission has broad powers of investigation and comprehensive rights of access to business records, comparable to those of interrogators, there is no clear exception to the guarantee of legal professional privilege in the legislation providing for the powers and procedures of such investigations. Documents covered by legal professional protection should also not be made available to the Commission’s officers for review. It should be noted that, in the sense of competition law, communication between the company and its domestic lawyers does not fall within the scope of legal privilege protection (ECJ C-550/07) and therefore only correspondence with external lawyers is exempt from the Commission’s inspection. However, it is recommended practice that, in the event that Commission officials insist on accessing such records, the organization under review should make available to the notary public, in a closed sealed envelope, its dissatisfaction with the Commission’s right of access to them.
Scope of Legal Professional Privilege
Pursuant to Article 38 of the (new) Code of Lawyers, lawyers should have faith in everything entrusted to them by their clients at the time of their appointment, as well as at the execution of the mandate of their clients, or whatever comes to their attention, when dealing with the cases of their clients.
All data (verbal, written, electronic, etc.) collected in the course of legal practice and communication between the lawyer and the client shall be considered as confidential by law – unless such data is in the public record – even after the termination of the client-law relationship and cannot be used for the purposes of judicial proceedings.
Is correspondence with in-house counsel secured by legal professional privilege?
Legal professional privilege confidentiality extends similarly to correspondence with in-house attorneys, as there is no clear regulation on the matter and the Code of Lawyers does not differentiate between in-house counsel and independent lawyers. In principle, they are all subject to the local bar and fall under the same legal and disciplinary laws. It should be remembered that lawyers in Greece are not considered ’employees.’
Even as in-house lawyers, they remain independent legal practitioners offering legal advice against ‘remuneration’ even though they are charged on a monthly and fixed basis. However, and in the light of the influence of EU jurisprudence, it should be considered whether the lawyer is bound by the employment relationship to the client. In view of the fact that in-house lawyers are ‘not constrained by work ties with the client’ in daily practice, it is agreed that their contact with the company is often covered by legal professional privileges. However, in situations where ‘special jobs’ occurs and in-house lawyers engage in administrative decisions or perform administrative duties in the exercise of their duties, their contact with the company is not entitled to legal professional rights where their specific role does not constitute the provision of legal services. Generally speaking, each case is resolved on an ad hoc basis and the norm appears to accept privilege rather than deny it.
Will the legal professional right of non-national trained lawyers extend to correspondence?
The Code of Lawyers does not distinguish between Greek and EU nationals (who can practice law in Greece under the authorisation of the local Bar Association, PD 130/23.05.2000) as regards the application of legal professional privileges. Third-country nationals cannot qualify as lawyers in Greece with the exception of Greek expatriates under special authorisation from the Ministry of Justice and the respective Bar Association. In view of the fact that standard EU case law is respected, communications, other than email, between Greek (or EU) in-house legal counsel and lawyers outside the EU (third countries) are not subject to legal professional privilege.
Legal professional privilege is a term and an institution of public order, derived and secured by the Constitution, and is thus, in practice, given special status (as all rules of public order) and cannot be waived without explicit legislation and cannot be waived. Parties can waive such protection by agreement, but such waiver is not binding and enforceable.
Overall, legal professional privilege extends to all facets of the legal profession, irrespective of the proceedings and without any distinction between independent attorneys and in-house counsel, with the exception of the particular exceptions prescribed by statute. However, in the light of competition law inquiries by the Commission, it has been recognized that the legal professional privilege does not extend to correspondence between the in-house lawyer and the company.