On April 28, 2016, the CCBE issued a paper about the standards necessary “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”.
Part I describes meaning and scope of client confidentiality. The paper highlights how client confidentiality is protected both under the Convention and EU as well as a fundamental human right of the client. “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”.
Part II contains the following recommendations to ensure respect of the client confidentiality principle:
- Overarching principle: all data and communications protected by legal professional privilege “are inviolable and not amenable to interception or surveillance”;
- Need for legislative control: all surveillance activities need to be regulated “providing for explicit protection of lawyer-client communications”.
- Scope of decryption: Decryption of secured data may be permissible only following due process and prior judicial authorization;
- Scope of admissible interception: “only communications falling outside the scope of professional secrecy or legal professional privilege may be intercepted”;
- Judicial and independent oversight: all stages of the surveillance procedure should be overseen by an independent judicial body “with the power to terminate interception and/or destroy the material which has been intercepted”;
- Use of intercepted material: any intercepted material obtained in violation client confidentiality rules “should be ruled inadmissible in a court of law and be required to be destroyed”;
- Legal remedies and sanctions: legal remedies should be made available to lawyers and clients subjected to unlawful surveillance and a system of sanctions should be introduced.
CCBE Recommendations on the protection of client confidentiality within the context of surveillance activities are available here
For more information, Francesca Giannoni-Crystal