Confidentiality is recognised as essential for the proper administration of justice, access to justice and the right to a fair trial, as required under the European Convention of Human Rights.
Confidentiality is protected by the CCBE Charter of Core Principles of the European legal profession of 2006 (principle 6), by the Code of conduct for european lawyers of 1988 (sub 2.3), by the Recommendation Rec(2000)21 of the Committee of Ministers to member states on the freedom of exercise of the profession of lawyer of 2000 (principle I.6), the European Parliament resolution on the legal professions and the general interest in the functioning of legal systems of 2006 (whereas E and H), and by the United Nations Basic Principles on the Role of Lawyers of 1990 (principle 8 and 22).
Same confindentiality is recognised even by the jurisprudence of the European Court of human rights (rulings (see, inter alia, S. v. Switzerland, application no. 12629/87, 28 November 1991) and the European Court of Justice (see in particular the judgment of 19 february 2002 of the European Court of Justice in Wouters v. Algemene raad van de Nederlandse Orde van Advocaten, case C-309/99).
Under Italian law, articles 13 and 28 of the Italian Lawyers Ethical Code describe as a duty and as a primary and fundamental right of the attorney, to keep confidential the activity rendered as well as any information the attorney received from the client [1, 2].
Article 35 of the Norms of Implementation of the Italian Code of Criminal Procedure, dealing with correspondence and telephone conversations between the defense lawyer and the suspect/accused, recalls article 103 of the Italian Code of Criminal Procedure [3], which guarantees of freedom of the defense lawyer to forbid the seizure of papers and documents related to the subject of the de-fense that are retained at the defense lawyer’s premises, unless they are corpus delicti (“body of crime”) [4].
"The right of defense is inviolable at every stage and moment of the proceedings." Italian Constitution, article 24/2
The Code sub same article 103 also forbids “the wiretapping of conversations or communications of defense lawyers and those between the defense lawyers and their clients” and rules that the seizure and any form of control of the correspondence between the suspect and his defense lawyer is not allowed "unless the judicial authority has grounded motive to believe that is the corpus delicti”.
Article 200 of the Code of Criminal Procedure, which focuses on professional secrets, states that the attorney “cannot be obliged to testify on what they have known for their function, office, or profession except the cases where they have the obligation to refer it to the judicial authority”.
Article 256 of the same Code, relating to the duty to disclose the secrets, requires the attorney, in writing and with a specific declaration, to confirm to the judicial authority that the secret concerns the attorney’s profession, leaving the magistrate with the authority to evaluate whether this declaration is satisfactory and if it is not, to mandate disclosure.
Said rules guarantee «free defense and the legal professional privilege, which are covered directly by article 24 of the Italian Constitution»[5] (Corte di Cassazione, ruling of 27.10.1992, Genna); there is no need of a formal act of empowerment of the attorney and the privilege operates even if the conversations belong to proceedings in which the lawyer is not empowered (Corte di Cassazione, rulings of 4.5.2005, Assinnata, 18.2.2003, Ricciotti and of 16.12.2002, Favi).
“The Court considers that an accused’s right to communicate with his advocate out of hearing of a third person is part of the basic requirements of a fair trial in a democratic society and follows from Article 6.3 (c) of the Convention. If a lawyer were unable to confer with his client and receive confidential instructions from him without such surveillance, his assistance would lose much of its usefulness, whereas the Convention is intended to guarantee rights that are practical and effective”
(ECHR, CASE OF S. v. SWITZERLAND, application no. 12629/87, 28 November 1991).
Within this international and Italian legal framework, it has to be noted that the interpretation made by courts of merits and the Italian Supreme Court [6] risks to deprive of any content the client – attorney privilege.
Indeed, if it could be agreed that the client-attorney privilige pertains to the function of the lawyer and has not to be considered as an “immunity” or “privilge of category”, the problem raises when it is ruled that a simple legal advice does not constituite an act of defense (Corte di Cassazione, ruling of april 2001, Ghini) and becomes huge with the (overhelming) interpretation that it is allowed to intercept client attorney conversations and comunications in order to check if the lawyer is involved in a crime.
In fact, Italian Supreme Court has repeatedly affirmed that the prohibition of interception of client attorney comversations or comunications requires (not an ex ante) but an ex post control in order to verify if the required conditions for the privilege are respected: furthermore, it has been affirmed that there is no prohibition of use of information given during such comunication if they
- do not inhere to the defensive function or
- if they could have been obtained by investigators from other sources (see, inter alia, Corte di Cassazione, ruling of 04.07.2006, Spahija).
In this way, police and prosecutors [7] potentially can become aware of the content of any conversation or comunication between client and attorney.
Which raises the question if the shining client attorney privilege is just .. fool’s gold.
Footnotes:
[1] Full text of Italian ethical code in English is available here.
[2] The Ethical Code of Italian lawyers, sub Article 13 “Duty not to disclose confidences and secrets” rules that “In the interest of his client and the assisted party, a lawyer shall assure the rigorous observance of privilege and the utmost discretion on facts and circumstances anyway given to him by his client within the activity of representation and judicial assistance, as well as within the legal advice, the extra-judicial assistance and, in any case, for professional reasons. “ Article 28, “Confidentiality and professional secret” rules: 1. It is a lawyer's principal and fundamental duty as well as his right to preserve confidences and secrets to the utmost, with regard to the services carried out and to the information which has been given to him by his client or the assisted party, as well as to those he has become aware in circumstances relating to his representation.2. The obligation of confidentiality must be respected even when the mandate has been fulfilled, however concluded, withdrawn or not accepted.3. A lawyer shall assure that professional secrets are respected to the utmost by his employees, trainees, consultants and professional partners, even occasional ones, concerning facts and circumstances heard as lawyers or because of their activity.4. A lawyer is allowed to disregard the abovementioned duties if the disclosure is necessary:a) to the execution of the representation;b) to avoid committing a crime of a particular seriousness;c) to allege circumstances de facto in a dispute between a lawyer and his client or assisted party; d) within a disciplinary action.In any case, the disclosure shall be limited to what is strictly necessary to the protected aim.5. The breach of duties under the previous sub-sections entails the enforcement of censure as disciplinary sanction and, in such cases where the violation is related to the professional secret, the suspension ofthe professional practice from one to three years”.
[3] If the reader of this article is a common-law lawyer, it must be clarified that in civil law jurisdictions such as Italy, the rules of evidence do not belong to a separate subject of the law, but rather they are part of the procedural rules.
[4] I refer to the summary made by Antonio Dordi, “The Attorney-Client Privilege in the European Union and Italy: Time for a Change”, 2008, which analyzes the attorney-client privilege for in-house attorneys.
[5] Article 24 rules, inter alia, that “The right to defense is inviolable at every stage and moment of the proceedings.”
[6] The highest court in the legal hierarchy is the Supreme Court of Cassation; it has appellate jurisdiction and gives judgments only on points of law. Having its seat in Rome, it is the court of last resort . Called “Corte di Cassazione”, its function is to ensure the correct application of law in the inferior and appeal courts and to resolve disputes as to which lower court (penal, civil, administrative, military) has jurisdiction to hear a given case. It hasn’t any function of constitutionality control (which is made by Constitutional Court, Corte Costituzionale).
[7] Under italian criminal procedure the whole investigation process is carried out under the supervision of the prosecutor, who disposes of criminal police. The police itself has autonomy only in the very first stage of investigation, until the prosecutor has been noticed. After prosecutors’ intervention, the police carries out delegated activity, such as wiretapping.
Read more: Investigation and prosecution phase under italian criminal procedure.
UPDATE:
On May, 24, 2018, the european Cpurt of Human rights recognized that "l’interception et l’ouverture de la correspondance du requérant, en sa qualité d’avocat, avec ses clients ne répondaient à aucun besoin social impérieux et n’étaient donc pas « nécessaires dans une société démocratique », au sens de l’article 8 § 2. Partant, il y a eu violation de l’article 8 de la Convention" (Laurent Vs. France, application n. 28798/13).
* This article was originally published on Authors' LinkedIn profile.
Further readings:
Quoted international sources are available here: http://endangeredlawyers.org/readings/
Justina Nasutavičienė, “The Right to confidentiality of coMMUnicationS between a lawyeR and a client dURing inveStigation of eU coMpetition law violationS: the aSpect of the StatUS of a lawyeR”, 2013, https://www.mruni.eu/upload/iblock/a53/003_Nasutaviciene.pdf