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Confidentiality of a lawyer

The duty of lawyer's secrecy, and therefore the basic pillar of advocacy, can be characterized with a bit of exaggeration as the time-bound "confessional secret of a lawyer". This duty, as well as the privilege of lawyers, and its statutory anchoring significantly strengthens the client's alliance with his lawyer, in particular, that the client may legitimately require that any sensitive information disclosed to a lawyer would not be further disseminated to third parties or even used against the client himself. Breach of confidentiality is one of the most serious violations of the lawyer's duties which must be observed also in relation to another attorney. The attorney is therefore obliged to maintain confidentiality about all the facts, not only legal, which he or she has learned from the client, his / her family, friends or from any other sources, and which is related to the provision of legal services to the client. This obligation also applies if the attorney is removed from the list of attorneys. The attorney is even obliged to maintain confidentiality even if he/she feels personally threatened, even in terms of data that are detectable in another way.

Some question marks concerning the obligation of confidentiality in the context of current technological and information development are also being taken into account when using electronic means of communication and mobile phones. Legally, nothing should be changed in view of the relevant provisions of the Criminal Code and Act No. 127/2005 Coll., On Electronic Communications (hereinafter referred to as "ZoEK"), as amended; the factual protection of information communicated in this way is more problematic.

The importance of this advocate's obligation of secrecy excels especially in cases where public authorities proceed with the client's activities in order to negatively affect him/her and have a general right to request a wide range of information in this procedure. The person contacted by public authorities has the obligation to disclose the requested information to them, otherwise, he/she is exposed to the risk of legal punishment himself/herself. Generally speaking, there are some exceptions that are very limited in practice. On the other hand, the advocate's obligation of confidentiality and the obligation not to respond to all questions of public institutions is conceived rather broadly, but not without borders. It is important to know these limits of confidentiality, because, unlike the duty itself, they are not so well known among laypersons and clients. The attorney is thus not bound by secrecy especially in the following cases:

a) The waiver of this obligation by its client

In this case, the client himself manifests the will not further protect certain information. However, taking into account the circumstances, it was obvious that the client had waived the obligation of confidentiality under pressure or distress, this obligation will continue to apply. For example, when the police sends to a lawyer a call to communicate certain information and attaches the form of consent of the accused client, the lawyer's duty is to request the client's consent directly and in writing, as doubts about the client's free choice are obvious. It must, therefore, be concluded that only a client, or after his death or the disappearance of a legal successor, may waive the duty of confidentiality. The waiver must be in writing and addressed to the attorney or verbally in the proceedings at the court. If this expression of will was addressed to third parties, it would appear to be ineffective and the duty of confidentiality would ipso iure persist. In case the client has more legal successors, it will be necessary to obtain the consent of all these legal successors of the client in writing.

(b) Communication of information to the cooperating person

The attorney is not bound by the obligation of secrecy towards the persons he or she authorizes to perform individual acts. This will include, in particular, collaborating lawyers, legal trainees, lawyers' employees, and other persons involved in the provision of legal services. Of course, such persons are also bound by the obligation of confidentiality to the same extent as the lawyer himself, and that attorney is obliged to instruct those persons.

c) Lawyer's dispute with a client at a court or other body

In these cases, in particular, there are so-called palmar disputes, that is, disputes concerning the payment of lawyers' fees. If the lawyer could not describe all the decisive facts, he could not even be successful in the dispute. However, in proceedings, the attorney is required to disclose only the most essential information about the client and his / her legal case. Similarly, this is the case in proceedings at the bodies of the Czech Bar Association.

d) The obligations imposed by the Act No. 337/1992 Coll., on Administration of Taxes and Fees, as amended

In this case, the obligation is limited to setting and recovering taxes and fees. Regarding the nature of the case in which the advocate advocated or represented the client, the obligation of confidentiality continues to apply.

e) Enforcement proceedings

In the case of proceedings conducted by so-called private executors, the attorney, on basis of a written request, is obliged to disclose information about the client against whom execution is executed, that is to say, his accounts, affairs, papers or book-entered securities. However, in this specific case, only the property that the attorney manages for his client is concerned, not all the client's assets the lawyer can be informed about. According to legal practice, the Execution Code is a lex specialis relationship to the Law on Advocacy and therefore the lawyer is not bound to the extent of the confidentiality obligation in this case.

(f) Preventing the crime

The Czech Criminal Code provides in § 167 for serious crimes, in respect of which everyone, including lawyers, has the obligation to prevent their committing or completing. Also, the lawyer is obliged to intervene in a way that is detrimental to his / her client in situations where it is possible to prevent the offense and thus the detriment caused by this act. In this regard, it should be noted that the lawyer is not subject to the obligation to announce crimes under Section 168 of the Criminal Code.

g) Money laundering

In the case of the fight against money laundering, this is a fairly new and very controversial breakthrough in the obligation of the lawyer's confidentiality, which is promoted within the framework of European political representation in the legal orders of the individual member states as a necessary means of combating organized crime and terrorism. However, it is also very often criticized by European law organizations as an unacceptable sacrifice of client trust on the altar of public interest. In this respect, however, it seems that today's society rather favours the security of freedom, and it can be said that there is a real danger that advocacy will come under the mantle of combating terrorism for its basic privilege, the principle of professional secrecy. The basic legal regulation in this area is Act No. 61/1996 Coll., On Certain Measures against the Legalization of Proceeds from Crime, the provisions of which are based on the European Union Directive on the prevention of the use of financial systems for the purpose of money laundering (91/308 / EEC, amended by Directive 2001/97 / EC). The main purpose of the Directive was to impose certain obligations on financial institutions and selected professions, including advocacy. Quotation of the Explanatory note follows:

"The Commission's efforts are also aimed at involving this profession in the fight against money laundering. At the same time, the specific role that advocacy plays in society must be preserved..."

The logical aim of the domestic law is to penalize any act under this Directive that seeks to ensure that property acquired through criminal activity is treated as property acquired in accordance with the law. The attorney must always instruct his / her client, so he/she must inform the client in a general and preventive manner. However, if he discovers and announces a suspected business within the meaning of this Act, he or she may no longer inform the client of this action. The attorney is obliged to inform about the suspected business within two calendar days the Czech Bar Association, which, within the confidentiality of its officers, will also consider whether it is a suspected business and if he/she agrees with the attorney's opinion, passes the data to the Ministry of Finance within five calendar days. In case of danger of delay, the attorney is obliged to inform the Ministry directly. Finally, it is necessary to add that the lawyer is not subject to this law and hence his confidentiality is not breached in the case of the information obtained from his client during court representation, but only if he is unaware that the purpose of his lawyer consultations is the legalization of proceeds from crime or the financing of terrorist activities, it means that in the case of a mere attorney's suspicion in the course of court proceedings, the confidentiality obligation remains.

The issue of professional secrecy is dealt with by all transnational professional regulations. For example, the European Code provides in Article 2.3:

"2.3.1 It is essential for a lawyer to provide the client with information that he does not communicate to anyone else, as well as other information on the basis of mutual trust. Trust cannot arise unless confidential treatment of information is ensured. Therefore, the confidential treatment of information is the fundamental right and the obligation of the attorney.

The attorney's obligation to observe the principle of confidential treatment of information is both in the interest of the administration of justice and in the interests of clients. Therefore, this principle is entitled to special protection from the State.

2.3.2 The Attorney is obliged to observe the principle of confidential treatment of information in relation to all the information he/she obtains in the course of his / her professional activity ... "

The principle of the confidentiality of information is therefore considered to be the primary and fundamental right and duty of any lawyer in the European context; however, this concept is currently under threat, and with it, there are obvious changes in professional values. The regulations in force in the European Union have made from lawyers a kind of gatekeeper because they have imposed on them the obligation to announce any suspicion of money laundering. In this context, however, it must also be acknowledged that the increased potential of offenders to accumulate and legitimize profits from crime can undermine democratic institutions and undermine the economy. This is why all anti-money laundering programs are more than just a tool for law enforcement. These programs are also one of the basic elements of protecting democratic institutions and economic freedom. In this connection, the G7 Summit of 1989 established the Financial Action Task Force against Money Laundering (FATH), which prepares various recommendations and is ratified by individual states. The importance of FATH is also given by being composed of G-7 representatives, representatives of the European Commission and representatives of 8 other countries. For example, the Gatekeeper initiative, based on a communiqué issued by the G8 Finance Ministers at the Moscow Summit in 1999, should be mentioned. The Gatekeeper initiative focuses on measures to be taken in the context of financial and commercial transactions by lawyers and other members of the "vulnerable" professions to prevent money laundering and the financing of terrorist activities.

Now, with regard to the new role of lawyer as "gatekeeper", there is a real fear that a socially valuable legal service enabling clients to adjust their position to the law cannot be effectively enforced because clients will be afraid to inform the lawyer about their activities in fear that the lawyer could inform the state authorities. However, the principle of confidential treatment of information is necessary to preserve the very essence of the relationship between the lawyer and the client, so new announcement obligations give rise to serious and legitimate concerns in the lawyers' profession. Here it is necessary to emphasize a priori that lawyers are counselors and advocates, not inspectors, and the duty of announcement may undermine their independence. The financial institutions primarily responsible for announcement also have the experience and resources needed to screen clients; lawyers do not have such experience or resources. If lawyers begin to comply with the announcement obligation, they can destroy the trust and openness that are a prerequisite for the mutual relationships of lawyers and their clients. The advocate's function is to provide legal advice and defend their clients, not to control, to indicate or "guard the gates" in the system. Investigations and repression are the tasks of other institutions, not of advocacy. If the legislator encourages citizens to communicate all relevant information about their case to advocates, as this openness is necessary to ensure the proper exercise of law and justice, it is necessary to ask a question whether the same legislator can force lawyers to disclose entrusted information to state authorities. If these concerns are met and the principle of confidentiality is weakened, this will dilute one of the fundamental principles of law enforcement, thus weakening not just the law professions but also justice itself, which may lead to a violation of fundamental human rights to legal assistance and due advocacy.

h) House inspection and inspection of other premises and other inspections

In the case of a house inspection or an inspection of other premises in the places where the lawyer provides his/her legal services and where, therefore, could be documents with information subject to the duty of confidentiality, the lawyer is obliged to inform the reviewing authority and this the body is then obliged to include a representative of the Czech Bar Association who will be appointed under the terms of the Resolution of the Board of Directors of the Czech Bar Association No. 6/2006 of the Bulletin laying down the procedure for determining the representative of the Czech Bar Association in conducting inspections and controls. This authority can provide the lawyer with the consent to submit such information to the authority. If the consent is not granted, the documents may be kept by the Czech Bar Association and the examining authority must ask the court for the replacement of such consent. This procedure will be used mainly in criminal proceedings, but also in tax and customs procedures. The aim of such a procedure is to guarantee the protection of information covered by the obligation of confidentiality also before the state power and to establish a certain supervision of the professional self-government, even though there are also views that the lawful introduction of the influence of the Czech Bar Association in exempting the lawyer from his duty of confidentiality is rather reformatio in peius.