Section 458 of the Criminal Code sets down the ethical duty of lawyers to preserve professional secrecy (Code penal).
This obligation is also established by the law of 10 August 2011 on the legal profession (loi sur la profession d’avocat) (Law of 2011); (ii) the internal regulation of 9 January 2013 of the Luxembourg Bar (Règlement intérieur de l’Ordre des Avocats du Barreau de Luxembourg) (Regulation of 2013); and (iii) the internal regulation of 22 April 2005 of the Luxembourg Bar Regulation (Reglement intérieur de l’Ordre des Avocats du Barreau de Luxembourg) (Regulation of 2013); (the 2005 Regulation).
A matter of public order is the professional confidentiality of a lawyer. Unless otherwise given by statute, it is general, absolute, and infinite in time.
Violation of professional confidentiality could be subject to an eight-day to six-month prison term and a fine of EUR 5,000.
Two exceptions to the professional confidentiality duty are laid down in the Criminal Code:
– When one is called in court to testify; and
– When one is forced to report such data by statute.
According to the law of 12 November 2004 on the fight against money laundering and terrorist financing, as amended, the disclosure to the Luxembourg competent authorities of any specific information in good faith does not constitute a violation of the obligation to preserve professional confidentiality and does not give rise to liability of any sort on the part of the lawyer making the disclosure.
In both civil and commercial litigation, the judge is allowed to order the processing of documents (Article 280 of the Nouveau code de procédure civile).
However, since this would be contrary to the right of defence and the right to a fair trial, a judge does not compel any lawyers involved in litigation to enclose documents. In the absence of any real or implied exception, the problem arises as to whether a judge may order the creation of such documents by a lawyer who had been previously instructed by a client but who was not currently retained by that client.
(These directives were made with regard to banking institutions holding client documents.)
A lawyer may be called by the court as a witness (as allowed by the Criminal Code), in which case they may have to decide if the details on which they are questioned are protected by professional confidentiality, and if so, the circumstances in which the evidence came to their attention can only be revealed to the court so that the court can determine if professional secrecy applies.
In the sense of criminal proceedings, legal professional immunity also applies. A lawyer who is (himself) the subject of criminal proceedings may only reveal details protected by professional confidentiality to the degree strictly required for his or her defense.
Searches of law firms may be carried out only in the presence, or if they have been properly called to attend, of the President of the Bar or their representative.
The Head of the Bar or his representative may send observations to the investigating authorities concerning the protection of professional privacy, and all acts of confiscation or prosecutions shall record the attendance, under penalty of nullity, of the Head of the Bar or his representative, or that they have been called to attend.
It is commonly considered that the powers of the Head of the Bar (only) to make observations are too limited for other remedies to be applicable under the law, such as the temporary stay imposed by the Head of the Bar on the inspection or confiscation by the authorities of certain documents, leaving it to the courts to decide whether or not the documents under review are protected by professional safeguards. However, the Luxembourg law did not enforce these measures.
Professional confidentiality refers to any information about the client and their affairs brought to the attention of the lawyer by their client, or about which the lawyer, regardless of the source of the information, has obtained knowledge through the practice of their career. It also refers to all records and details given by the lawyer who advises, defends in court, or supports his client.
It includes all legal advice provided or intended for a client, all communication between the lawyer and his client as well as with other lawyers, meeting notes and, in general, all details received by the lawyer in the practice of his career, the name of the lawyer’s client, the lawyer’s diary and the financial arrangements between the lawyer and his client.
Professional confidentiality safeguards communications and discussions between attorneys, unless the correspondence is:
– is marked as “official” and does not contain, by nature, any confidential information;
– a formal and unconditional agreement between parties is included; or
– it is by default not confidential (letter sending a brief or asking for a document or a procedural act).
In the absence of any particular legislation respecting in-house counsel’s legal professional privilege and in view of the fact that in-house counsel are bound by an employment contract with their employers, it can be assumed that in-house counsel’s advisory work is not covered by professional confidentiality.
When dealing with lawyers who are not subject to the rules of the Luxembourg Bar, lawyers should exercise caution, as the rules regulating legal professional privilege can differ from one country to another. Preferably, the guidelines found in Article 5.3 of the CCBE Code of Conduct for European Lawyers should be followed.
While the law allows a lawyer to keep all matters entrusted to them by their client confidential, the reverse is not inherently valid because nothing prohibits the client from revealing what they have revealed to their lawyer to third parties (in other words, the client does not owe any obligations of confidentiality).
In recent cases, the court has: set aside the minutes of an investigation launched by a person who has delivered a communication between his lawyer and another lawyer; and refused a lawyer’s request to lodge a lawsuit against another lawyer on the grounds of an alleged criminal offense committed by that person who has threatened his client.
A lawyer can reveal confidential information pursuant to the 2013 Regulation if:
They decide that the disclosure is in the best interests of their client; and their client, having been properly informed of the existence of the information to be revealed and of the proposed recipients of the information, has allowed them to do so.
‘State of necessity’ cases may occur and take over professional confidentiality, thereby freeing a lawyer from his legal professional privilege obligations. In a previous version of the 2013 Regulation, an explicit reference to the ‘state of necessity’ was stated (and can still be found in the 2005 Regulation), but it is widely considered that, despite its omission from the 2013 Regulation, this concept remains applicable.