What is Client Confidentiality or Legal Privilege?
Client confidentiality protects the relationship and the trust that is built between the client and the lawyer, whereby the client can admit and confess to the lawyer the details of his case and he can rest assured that the information given will not retort against him but instead will be used to help him. That trust is essential for the lawyer to be able to conduct his work properly; and therefore, support and give accurate and full advice to his client. This right should not only be applicable to natural persons, but also to companies or any other entity that can be subject to investigation.
The court in the case of AM&S v. Commission (Case 155/79) gave its interpretation of Regulation 17 whereby it established two conditions which are essential for legal privilege;
- made for the purposes and in the interests of the client’s rights of defence, and
- emanate from independent lawyers who are qualified to practice in an EEA country.
The right given to clients to protect them against the divulging of the communication with their lawyer is essential to guarantee the right of fair trial. In fact, it is protected under most legal systems since if it is denied people may be denied access to legal advice and to justice. The Court in the case of Michaud v. France (Case 12323/11) stated that “the right of everyone to a fair trial” is dependent upon the “relationship of trust between [the lawyer and the client]”.
What is meant by surveillance?
The CCBE (The Council of Bars and Law Societies of Europe) in the past has raised various concerns with regards to certain State Bodies having secretly and insufficiently control over investigatory powers. Hence this gives unjust access to personal communication data belonging to citizens which is mostly done indiscriminately, on a large scale and in a non-suspicion based manner. This can become hazardous in case it results in the breach of confidentiality between the lawyer and the client which is especially protected in various Member States. This would be an obvious breach of the right to privacy and the right to a fair trial. In fact, EU Law has taken a proactive approach whereby the Right of Access to a Lawyer Directive (Directive 2013/48/EU) provides that the obligation that rests on the Member States is an absolute one. In fact article 4 states that;
“Member States shall respect the confidentiality of communication between suspects or accused persons and their lawyer in the exercise of the right of access to a lawyer provided for under this Directive. Such communication shall include meetings, correspondence, telephone conversations and other forms of communication permitted under national law.”
In 2015, the CCBE has intervened before the French Constitutional Council to protect the client confidentiality, as there was a bill put forward which allowed intelligence services to intercept private communications ‘in order to defend and promote the fundamental interests of the nation’. The CCBE main concern was the broad formulation of what is specified as ‘public interest’, which could justify this approach, in addition to the absence of an independent judicial control mechanism. Consequently, the CCBE requested that the storage of data should be limited to cases which may reveal potential threats.
Therefore Legal Privilege is looked highly upon by the Courts and the democratic state alike, and should be safeguarded by both.
This shall not be construed to be as advice but shall merely serve as a brief description of client confidentiality. If you would like to get to know more about this please do not hesitate to contact us on [email protected].