The central principle of the legal profession is confidentiality, but it faces a number of stresses and challenges. In order to investigate crimes, governments are seeking to restrict secrecy. Confidentiality is also checked through contact through new media. By providing access to justice, confidentiality strengthens the rule of law.
Confidentiality is covered in national laws throughout Europe by numerous frameworks of varying scope and consequences. The European Court of Justice has acknowledged the discrepancies between national laws and has expressed its intention to take into account the laws of the Member States relating to confidentiality between lawyers and clients.
The ECJ’s judgment of 18 May 1982 in AM & S Europe Limited v Commission of the European Communities Case 155/79 also contains other primary cases on legal professional privilege. This case concerned the powers of the European Commission to demand that records relating to business practices be created, including written correspondence between the lawyer and the client, which were deemed appropriate to investigate a violation of the competition rules of the Treaty. The court found that the national laws of the Member States guaranteed the confidentiality of written communications between lawyers and clients, given that these communications were made for the defense of the client and or were made between a client and an independent lawyer who was not the employee of the client
Just France, Italy and Sweden categorically refuse to preserve the confidentiality of in-house legal counsel’s advice. In-house lawyers have the same status and laws in the United Kingdom, Denmark, Spain, Portugal, Ireland, Greece and Scotland as a lawyer working by a law firm or sole practitioner. This varies with respect to matters of competition law. At the European level, this remains an area of active discussion.
Confidential correspondence between lawyers and their clients are protected by Articles 6 of the European Convention on Human Rights, the Right to a fair trial, and 8 of the Right to respect for private and family life (ECtHR). Privilege is not treated as an absolute right and can, under certain cases, be justifiably limited.
The European Court of Human Rights (ECtHR) ruled in Michaud v. France, 6 December 2012, that the requirement to disclose allegations of money laundering in France did not interfere unfairly with legal professional privilege because it did not extend to lawyers when defending litigants, and the law offered a filter allowing lawyers to send their reports to the president of their bar.
The degree to which freedom of speech prevails over professional confidentiality is being checked by pending ECtHR applications. This involves demands lodged by lawyers and journalists with respect to the French Intelligence Act of 24 July 2015. These are pending requests by the Association Confraternelle de la Presse Judiciaire v. France and 11 other requests were communicated to the French Government on 26 April 20173 A secrecy fact sheet published in January 2019 by the European Court of Human Rights illustrates the rationale in the judgment of the European Court of Human Rights (Michaud v. France, judgment of 6 December 2012,118-119). It notes that Article 8 ECHR on the right to respect for private and family life guarantees contact between lawyers and their clients because the protection of litigants is a ‘fundamental duty in a democratic society’ and ‘lawyers are unable to perform this important task if they are unable to guarantee that their exchanges will remain confidential’ to those they defend. This was accepted as underpinning the right under Article 6 to a fair trial. The scope of qualifications is set out in Article 8(2):
‘A public authority shall not interfere with the exercise of that right unless it is in compliance with the law and is required in a democratic society in the interests of the national security, public safety or economic well-being of the country, for the prevention of disorder or crime, for the preservation of health or morality, or for the protection of the rights and freedoms of the country.’
The case law of the ECtHR confirms that any limitation of rights in compliance with Article 8 of the ECHR must be proportionate to a valid purpose. Key cases discussed concerns including the disclosure of bank accounts in criminal proceedings (Brito Ferrinho Bexiga Villa-Nova v. Portugal 1 December 2015), interception of telephone tapping and confidential monitoring conversations between lawyers and their clients (Laurent v. France 24 May 2018), (Kopp v. Switzerland, 25 March 1998), (Pruteanu v. Romania 3 February 2015), (Versini-Campinchi an a February 2015), (Versini-Campinchi an a (Wolland v. Norway, 17 May 2018). These cases are a direct example of the degree to which, across Europe, privilege and secrecy have been questioned.
Some analysts say that the fight against terrorism, cross-border organized crime and money laundering has taken precedence over the security of confidentiality in ECtHR case law at the national and European regional level. This is particularly the case where national laws have been enacted allowing bulk surveillance of communications technologies. Directive 2001/97/EC of the European Parliament and of the Council of 4 December 2001,105 amending Directive 91/308/EEC of the Council of 10 June 1991 on the prevention of money laundering allows lawyers to warn the relevant authorities, as well as financial institutions, of any suspicion of money laundering. Although certain provisions are incorporated into the Directive, the ECJ limited this to the right of litigation.