Currently the European Commission is preparing legislation limiting the professional secrecy / professional privilege of lawyers. The Council of Bars and Law Societies of Europe (CCBE) explains in a recent statement that rule of law requires the professional secrecy / legal professional privilege.

The article in the recent CCBE newsletter:

CCBE statement on professional secrecy / legal professional privilege

In response to infringements in several member countries which are jeopardising the confidentiality attached to the relationship between clients and their lawyers, the CCBE adopted at its Standing Committee on 15 September 2017, a statement on professional secrecy / legal professional privilege. The CCBE emphasises that – contrary to a common misconception – the relationship of professional confidentiality, is intended not to protect lawyers but to protect their clients only. Once a client consults a lawyer, they have the guarantee that what they have said to their lawyer will be protected by professional secrecy / legal professional privilege and remain confidential. It would be impossible for lawyers to provide such advice or representation if the client, for fear of betrayal of that essential precondition of confidentiality, withholds information from his lawyer.

Without confidentiality, there cannot be a fair trial and without a fair trial the rule of law is at stake. Confidentiality is one of the cornerstones of individual freedom in a democratic society.

Please find the complete statement here.

The subject of this article is related to another article in the newsletter, “CCBE response to European Commission proposal on tax intermediaries”:

CCBE response to European Commission proposal on tax intermediaries

On 21 June 2017, the European Commission proposed new transparency rules for intermediaries – such as tax advisors, accountants, bankers and lawyers – who design and promote tax planning schemes for their clients. According to the proposal, cross-border tax planning schemes bearing certain characteristics or ‘hallmarks’ would have to be automatically reported to the tax authorities before they are used. It places an obligation on to intermediaries to disclose potentially aggressive tax planning arrangements to the tax authorities (proposed Article 8aaa). The CCBE is pleased to see that the position of lawyers in the administration of justice has been recognised in the proposal by respecting the rules of legal professional privilege and professional secrecy. The CCBE pointed out, however, that the drafting of the provision could be improved to accurately reflect how the rules operate and we have included some suggested language, whilst emphasising once more that legal privilege / professional secrecy rules are a means to protect the fundamental rights of the citizens and not the lawyers. The CCBE also underlined that some language versions seem to use different concepts when referring to legal privilege / professional secrecy which have different legal implications. Therefore, the different language versions should be carefully reviewed.

Please find the complete document here.