Setting standards to protect lawyer-client confidentiality

 

Lawyers from across Europe have outlined standards to be upheld to protect client confidentiality from State surveillance.

A paper has been produced by the Council of Bars and Law Societies of Europe (CCBE) which opens with a reminder of a key article of the CCBE Code of Conduct: “The lawyer’s obligation of confidentiality serves the interest of the administration of justice as well as the interest of the client. It is therefore entitled to special protection by the State.”

The CCBE says that in recent years it has expressed deep concerns regarding revelations about the working methods of national intelligence services.

“The purpose of this paper is to inform legislators and policy makers about standards that must be upheld in order to ensure that the essential principles of professional secrecy and legal professional privilege are not undermined by practices undertaken by the State involving the interception of communications and access to lawyers’ data for the purpose of surveillance and/or law enforcement,” the paper states.

“Without the certainty of confidentiality there cannot be trust, which is key to the proper functioning of the administration of justice and the rule of law.”

The CCBE says that while it recognises the obligation of the State to ensure the safety of its citizens, legal professional privilege and professional secrecy are essential underpinnings of the rule of law.

“Where the State seeks to abrogate or erode the principles of legal professional privilege and professional secrecy, even in the name of national security, this constitutes an attack on the rule of law itself.

“Both (the imperative to protect national security and the defence of legal professional privilege) may co-exist as essential components in a mature and fully functioning democratic society which functions in accordance with the rule of law. It has been the purpose of the present paper to lay out with clarity how that end may be achieved.”

The paper, CCBE Recommendations on the protection of client confidentiality within the context of surveillance activities, is at http://www.ccbe.eu/fileadmin/user_upload/NTCdocument/EN_CCBE_Recommendati1_1463743795.pdf

• The Dean of Faculty, James Wolffe, QC, has been awarded a diploma by the CCBE in recognition of his role as Head of the UK Delegation from 2013 to 2015.