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Ask a Romanian Lawyer | Romanian Law

Protection of Confidences between European Lawyer and Client

Lawyers are guardians of fundamental rights, freedoms and liberties as well as of the rule of law principle. Lawyers thereby ensure the essential foundations of a democratic society. The Council of Bars and Law Societies of Europe (CCBE) is the voice of the legal profession in Europe, representing over 700,000 European lawyers through its member bars and law societies in the Member States of the European Union and of the European Economic Area.

The right of an individual for protection of confidences between him/her and members of the legal profession is part of fundamental human rights, freedoms and liberties as well as an emanation from the rule of law principle. The CCBE is concerned about recent developments in Europe that seriously affect human rights and the rule of law principle, in particular intrusions into privacy and dignity of persons and the imposition upon members of the legal and other secrecy-bound professions to report to the government confidences made to them by individuals. The CCBE, in order to counter this development, in February 2001 has adopted a “Statement of Position on Lawyers’ Secrecy and Confidentiality and their Importance for a Democratic Society that follows the System of Justice”. This statement of position is hereby reaffirmed (please find it attached).

There is also the risk that the protection of confidences between client and lawyer that exists in a given European country if the lawyer is a member of the legal profession of that country, is denied by such Member State if the lawyer is from another European country.

Against this background the CCBE wishes to restate a Resolution that was previously adopted by the CCBE in 1965:

on the professional secrecy of a lawyer from a EEC States bar, would like the lawyer to be treated in any other EEC country, as far as professional secrecy is concerned, the same way as the national lawyer, with reservation that in the State where professional secrecy is requested, the conditions to practise the profession are not incompatible with the ones applicable in the country.

The CCBE hereby reaffirms this Resolution of February 5, 1965. The condition referred to in the second part of the Resolution is fulfilled by virtue of the Services Directive of 1977 (77/249/EEC) and of the Establishment Directive of 1998 (98/5/EC). The modalities of the exercise of the profession of a lawyer as a result of both Directives are compatible from country to country throughout Europe. Confidential communications between a client and a lawyer from one Member State, as a consequence of what has been mentioned, must be protected also in any other Member State as if such lawyer were a lawyer of such other Member State, regardless of how the protection is legally operated (right to deny testimony and protection of files against investigation and seizure by virtue of professional secrecy or confidentiality or legal privilege etc.). What matters is the result that, and not how, the protection is achieved.

Annex: Statement of position on lawyers’ confidentiality of 5 February 2001

“The CCBE, Council of the Bars and Law Societies of the European Union representing more than 500.000 lawyers, states as its position on lawyers' secrecy and confidentiality:

1. We have watched with increasing anxiety developments in our member countries regarding lawyers' obligations of professional secrecy and confidentiality. It is hardly an exaggeration to say that proposals for limiting the scope of the lawyers' obligations are submitted almost daily.

2. We fully accept and agree that the prevention of criminal activities such as money laundering and child abuse should be given a high priority in our societies. It might be perceived by some that to argue for protection of lawyers’ obligations of confidentiality is to demonstrate a lack of commitment to the prevention of such activities. Nothing could be further from the truth.

3. We want to make one thing quite clear. When we argue for the protection of the widest possible scope of the lawyers' obligations of professional secrecy and confidentiality, we do not defend illegal or criminal conduct by the lawyers themselves. Such behaviour should never be protected by professional secrecy. On the contrary, the bars and law societies of the member states are as interested in such criminals being punished as are the authorities and the public. In addition such lawyers would face disciplinary action and be exposed to disbarment and loss of the right to practice.

4. We trust therefore that our reasons for supporting the widest possible protection for lawyers’ obligations of confidentiality will not be misunderstood. We do so because we consider them to be of paramount importance to a democratic society that follows the system of justice. It is a fundamental right of the citizen to be protected against any divulging of his communication with his lawyer. If this is denied, the citizen is denied access to legal advice and to justice. There should be no exception to this principle.

Our citizens live in a complex society. They must be able to seek advice as to what is right or wrong, legal or illegal. Such advice can only be sought if the citizen can be assured that his or her communication with the lawyer remains confidential.

It is our conviction, backed by long experience, that a full protection of lawyers' obligations prevents more criminal acts that any lesser protection. We consider it beyond doubt that the citizens of our countries must have one point of communication, which is fully protected from exposure. This has become all the more important given that, in modern society, a citizen’s communications with other persons such as doctors, priests and social workers do not always enjoy full protection. Given the high standards of professional conduct which are imposed upon members of the legal profession, and their long experience of working in accordance with obligations of professional secrecy and confidentiality, they remain best suited to being the protected point of communication.

That is why we maintain that the protection should be absolute. That is why we regard the development during the last years as highly problematical. That is why we, finally, consider it of the highest importance that the political leadership in the European Union understands the importance of and accepts the need for unlimited protection of the lawyers' obligation of professional secrecy and confidentiality.”

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