Confidentiality/Professional Secrecy

 

General principle                     

A Member shall at all times maintain and be afforded protection of confidentiality regarding the affairs of present or former clients, unless otherwise allowed or required by law and/or applicable rules of professional conduct.

Explanatory note

The right and duty of a lawyer to keep confidential the information received from and advice given to clients is an indispensable feature of the rule of law and another element essential to public trust and confidence in the administration of justice and the independence of the legal profession.

The principles of confidentiality and professional secrecy have two main features:-

  1. On the one hand there is the contractual, ethical and frequently statutory duty on the part of the lawyer to keep client secrets confidential.
  2. The statutory duty is sometimes in the form of an evidentiary attorney-client privilege; this differs from the lawyer’s obligations under applicable rules of professional conduct.

Such obligations extend beyond the termination of the member client relationship.

Most jurisdictions respect and protect such confidentiality obligations, for example, by exempting the lawyer from the duty to testify before courts and other public authorities as to the information the lawyer has gathered from clients, and/or by affording lawyer-client communications special protection

On the other hand, there are manifest situations in which the principles of confidentiality and professional secrecy of lawyer-client communications no longer apply in full or in part. Members cannot claim the protection of confidentiality when assisting and abetting the unlawful conduct of their clients.

Some jurisdictions also allow or will require our Member lawyers to reveal information relating to the representation of the client to the extent the lawyer reasonably believes it necessary to prevent reasonably certain crimes resulting, for example in death or substantial bodily harm, or to prevent the client from committing such a crime in furtherance of which the client has used or is using the lawyer’s services.

Recent legislation imposing special duties upon lawyers to assist in the prevention of criminal phenomena such as terrorism, money laundering or organised crime has led to further erosion of the protection of the lawyer’s duty of confidentiality.

Our Members should scorn/oppose in principle to the scope of the legislation. Any encroachment on the lawyer’s duty should be limited to information that is indispensable to enable our Members to comply with their legal obligations or to prevent others from being unknowingly abused by criminals to assist their improper goals.

If neither of the above is the case and a suspect of a past crime seeks advice from a Member, the duty of confidentiality should be fully protected.

However, a Member cannot invoke confidentiality/professional secrecy in circumstances where the other lawyer acts as an accomplice to a crime.

Jurisdictions differ on the scope of protection and its geographical extension.

In some jurisdictions clients may waive our Member’s obligation of confidentiality and professional secrecy, whilst others may not. In some jurisdictions, the obligation can be broken for self-defence purposes in judicial proceedings. Apart from client waiver, such self-defence and any requirements imposed by law, our Member’s obligation of confidentiality and professional secrecy is usually without time limit.

The obligation also applies to every Member. In any event, Members shall be under a duty to ensure that those they work with or for maintain the obligation of confidentiality and professional secrecy.

Members’ law firms or associations raise different aspects of the duty of confidentiality and professional secrecy. The basic and general rule must be that any information or fact known by a Member (a law firm or otherwise) is held in confidence.

Members shall also take care to ensure that confidentiality and professional secrecy are maintained in respect of electronic communications, and data stored on computers. Standards are evolving in this sphere as technology itself evolves, and our Members are under a duty to keep themselves informed of the required professional standards, so as to maintain their professional obligations.

The extent to which a Member’s clients may waive the right to confidentiality is subject to differing rules in different jurisdictions.

Restrictions on waivers are of paramount importance to protect against a court or governmental authority putting inappropriate pressure on a client to waive his or her right to confidentiality. Finally, our Members should not benefit from the secrets confided to them by their clients.

International implications

Although there is a clear common goal behind the various regimes governing the duty of confidentiality and its protection, national rules differ substantially.

While civil law countries entitle and oblige the lawyer not to testify, and protect the lawyer against search and seizure, common law countries protect the confidentiality of certain Member-client communications, even if, for example, privileged correspondence is found with a client suspected of having committed a criminal offence.

Members engaged in cross-border practice and International law firms will have to investigate all rules that may be of relevance and will have to ensure that information to which they gain access to and the communication in which they are engaged will in fact enjoy the protection of confidentiality.

Generally, the national rules of all relevant jurisdictions must be complied with (Double Deontology). But national rules sometimes do not address the issue of how to deal with conflicting rules. If the conflicting rules are broadly similar, then the stricter rule should be complied with.

There is, however, no universally accepted solution for those cases where the rules contradict each other (for instance secrecy protection versus reporting obligation), although certain jurisdictions have adopted conflict of law principles to determine which rules of professional conduct apply in cross-border practice. Likewise, national rules as to the ability of a client to waive confidentiality vary, and the applicable rule or rules will have to be determined individually in every case.