Legal confidentiality

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The attorney's secret (sometimes also imprecisely referred to as professional secrecy ) is the attorney's duty to keep all relevant circumstances known to him in connection with the exercise of the mandate confidential and part of the attorney's obligations in connection with the exercise of his profession.

If the right to secrecy (attorney immunity) and the duty to secrecy (attorney secrecy in the narrower sense) are combined, then attorney secrecy exists in the broader sense. In principle, the lawyer is only able to practice his profession if he can work as independently as possible from state influences and the lawyer secrecy in the broader sense and also the lawyer's absolute duty of loyalty to his client is comprehensively guaranteed by the state.

There are very similar legal regulations for tax consultants (Section 57 Paragraph 1 StBerG , Section 5 BOStB and Section 203 Paragraph 1 No. 3 StGB ) and auditors (Section 57b WPO , Section 203 Paragraph 1 No. 3 StGB ).

Legal confidentiality is structured similarly in the German-speaking and English-speaking countries with minor deviations. In other countries it is looser or, as z. B. in France, handled much more strictly.

history

In the Reichskammergerichtsordnung from 1495, § 6, there is the obligation that lawyers are allowed to disclose things that they have learned to their parties without harming anybody . In English case law, a similar decision from 1577 in the Berd v Lovelace case is known.

Purpose of legal confidentiality

Legal confidentiality is intended to ensure that the client can provide the lawyer with all necessary information without fear, so that the lawyer can advise and represent him comprehensively and correctly. The legal secret in the narrower sense is a right of the client and an obligation of the lawyer (the holder of the right is thus the client and linguistically correct this would be called client secret - analogous to patient confidentiality, for example . In English : it is a little more specific than legal professional privilege .).

Extent of legal confidentiality

Legal confidentiality covers every activity of the lawyer as such towards his client, regardless of whether it is a case in civil or criminal law , administrative law or tax matters, etc. It includes pure advice as well as official or judicial representation as well as representation z. B. before arbitration courts or against private individuals. Joint discussions between one or more parties and their respective lawyers are also covered by legal confidentiality, provided they are intended to be confidential. This confidentiality obligation also extends to the names of the clients, which is why z. For example, a search of attorneys' briefcases can already violate attorney confidentiality if it could reveal the names of unauthorized persons (e.g. police , public prosecutor , security, etc.).

According to the law of the European Union, documents, information, etc. that are held by the lawyer or with his client, including preparatory documents that are useful or essential for the lawyer as such to understand the context, nature and meaning of the Understand the facts . Documents, information, etc. even if these have been created exclusively in order to request legal advice from a lawyer in the context of exercising the rights of the defense and this also if such documents have not been created in order to be transmitted as such to the lawyer. Documents, information, etc. that are not held by an independent lawyer (lawyers who are, for example, bound to the client by a service contract) are not protected by lawyer confidentiality. The European Court of Human Rights considers all correspondence between lawyer and client to be protected by legal confidentiality, even if it is outside the premises of a law firm, especially if it is on the premises of a suspicious company.

Legal confidentiality must be guaranteed actively and passively:

  • The lawyer must prevent other persons from gaining knowledge of the relevant information entrusted to him or his employees, unless the client expressly agrees to this or this has already been made public, and
  • he and his employees are obliged not to pass on any relevant information without commissioning the client, unless this information is already publicly known.

In the German-speaking and English-speaking countries, the client can in principle waive the attorney's observance of legal confidentiality, but only after comprehensive and exhaustive advice from the attorney (or the refusal of this advice). If information is published by the client himself, the lawyer in the German-speaking and English-speaking countries is no longer bound by his duty of confidentiality (in this context).

In contrast to US law, corporate lawyers (in-house counsel, see also: In-house lawyer ) are generally not covered by legal confidentiality in German-speaking countries. However, there may be more or less extensive (legal) protection through professional secrecy or it results from the duty of confidentiality . In Switzerland, corporate lawyers are sometimes also subject to the professional ethics of registered lawyers.

Legal basis

The legal secret is exposed

  • legal (protection by the legislature),
  • professional ethics (protection by professional lawyers) as well as
  • contractual (protection through the contractual relationship between client and lawyer)

Share together. All three parts together mean that the entire state authority ( legislative , executive and judicial ) has to resign from legal professional privilege and even in exceptional cases in a functioning constitutional state no breach is possible unless this has been previously ordered by law.

The legal legal bases can be found e.g. B. in international law agreements (e.g. the ECHR ), in the law of the European Union ( European law ) and in the national law of the member states of the international law agreement or the European Union or the European Economic Area (EEA).

Fundamental rights

Legal confidentiality is comprehensively protected on the basis of the case law of the ECHR Court of Justice under Article 6 ECHR (right to a fair trial) and Article 8 ECHR (right to privacy). The right to a fair trial is also regulated similarly in Article 47 (2) of the Charter of Fundamental Rights (GRC) and the right to private and family life in Article 7 GRC.

European Union

In the European Union , the attorney-client privilege is comprehensive as general principle of law recognized at least since the decision of the European Court of Justice (ECJ) in Case C-155/79, AM & S. secondary legally is, the attorney-client privilege. B. in the Directive (RL) 2013/48 / EU (Legal Assistance Directive) or the Directive 2014/104 / EU (Antitrust Damage Directive) standardized and implemented in national law.

Professional law

Professional secrecy obligations for German lawyers result e.g. B. from Section 43a, Paragraph 2 of the Federal Lawyers' Act, detailed in Section 2 of the Professional Code (BORA). For Austrian lawyers see e.g. B. Sections 9 and 10a RAO in Liechtenstein Article 15 of the Lawyers Act (RAG).

Contractual obligations

In principle, the client and the lawyer are entitled to make any contractual agreement that they consider necessary and useful, provided that it does not violate legal obligations.

Authorized and obligated persons from the legal secret

The lawyer’s client is the person entitled from the legal secret. When the mandate begins or has started must be assessed on a case-by-case basis. Even without a written mandate, a mandate can already exist that obliges the lawyer or his employees to maintain confidentiality. The duty of confidentiality also applies if there is no mandate.

The lawyers who are registered and / or admitted to the profession or persons who are equivalent to them (e.g. legal agents , sometimes notaries, etc.) and the external and internal assistants employed by them are those who are obliged to comply with legal requirements .

The authorization and obligation also apply if a lawyer acts across borders in the European Union within the scope of the freedom to provide services within the meaning of Article 56 ff. TFEU or Article 36 ff. EEA Agreement , because the provision of services takes place under the conditions specified in relevant Union Member State apply to its nationals (Article 57 (3) last sentence TFEU).

In the USA, in connection with legal confidentiality, the legal scope of the protection of legal confidentiality from the attorney's country of origin was taken into account, thus circumventing the strict protection of legal confidentiality in the USA even by US authorities. This circumvention has now been restricted , at least under judicial law .

Non-existence of legal secret

Legal confidentiality may not exist if there is no mandate, for example the lawyer does not act as a lawyer (but, for example, as a member of a board of directors) or the client has waived compliance in whole or in part, etc.

A client cannot invoke legal confidentiality if it is misused to commit a criminal offense.

According to the case law of the Court of Justice of the European Union , C-550/07, Akzo Nobel decision, in-house correspondence with an in-house lawyer is not protected by legal confidentiality in the area of ​​competition law. In this context, legal confidentiality only applies between a lawyer and his client - but not between an employee and his employer.

Breach of legal confidentiality

Legal confidentiality can be breached under certain circumstances if compliance with the client would be contrary to the will of the client (e.g. if the client has already died to interpret his will) or if it is necessary because the lawyer is defending himself in disciplinary or legal proceedings must (depending on the circumstances, but only possible to a very limited extent) or if the lawyer has to enforce claims against the client (e.g. for payment of the fee - also here only possible to a very limited extent, in particular the obligation to maintain confidentiality remains in principle if otherwise the client would be exposed to the risk of criminal proceedings).

Sanctions

The violation of legal confidentiality by the lawyer or his assistants can lead to the loss of the mandate, to claims for damages as well as to disciplinary proceedings before the competent bar association or the legal court . A violation of the duty of confidentiality by the lawyer or his employees and trainees is also in accordance with Section 203, Paragraph 1, No. 3, Paragraph 3 of the Criminal Code.

See also

literature

Web links

Wiktionary: Legal confidentiality  - explanations of meanings, word origins, synonyms, translations

Individual evidence

  1. ↑ Legal confidentiality obliges lawyers or other people of equal status and their assistants, while professional confidentiality is less differentiated and affects people in a variety of professions differently.
  2. ↑ See Articles 6 and 8 ECHR (ECHR in the case. Niemietz c. Allemagne (13710/88) from 1992) and z. E.g .: ECHR , Campbell v United Kingdom [1992] 15 EHRR 137 or Michaud c. France (12323/11) from 2012.
  3. ↑ So z. B. In English as Attorney-client privilege , lawyer-client privilege or Legal professional privilege , in French as secret professionnel . See e.g. As well as the definition of the St. Gallen Bar Association to attorney-client privilege or as Marius E. Mann in Anwaltliche secrecy and corporate governance ff, page 7 of it as the second pillar of the attorney-client privilege referred.
  4. ↑ Right to a fair trial within the meaning of Article 6 ECHR. See also e.g. B. the decision of the ECHR in the case. Schönenberger et Drumaz c. Suisse (11368/85) in 1988 and JB c. Suisse (31827/96) in 2001.
  5. ^ The attorney's confidentiality in France , Epp & Kühl, German-French law firm.
  6. ↑ Reich Chamber Court Regulations: 1495 and 1495 transferred from Early New High German ( memento of October 5, 2016 in the Internet Archive ).
  7. ^ Berd v Lovelace [1577] Cary 62.
  8. ↑ A somewhat idiosyncratic interpretation and differentiation can be found in a decision by the Swiss Federal Court , BGE of August 13, 2004, 1P. 133/2004.
  9. ↑ See also the decision of the ECHR in the case. Dudchenko v. Russia, complaint no. 37717/05. In this regard, it was decided that clandestine eavesdropping measures violate the protection of legal professional secrecy if there are no procedural minimum standards.
  10. ↑ See: ECJ in cases T-125/03 and T-253/03, Akzo Nobel and Akcros Chemicals , margin number 122 f.
  11. ↑ For many: Akzo Nobel decision of the Court of Justice of the European Union of September 14, 2010, Rs C-550/07 P.
  12. ↑ a b See e.g. B. Cases 63629/10 and 60567/10, Vinci Construction and GMT genie civil and services vs. France on April 2, 2015 regarding a house search.
  13. ↑ Matthias Kilian in Legal Foundations of Legal Activities , p. 21. See also the Administrative Court in Case 91/14/0159 about the possibility of an implied waiver. See also decision of the Obwalden Lawyers' Committee of June 23, 2004 (AKO 02/008), point 6.c.
  14. ↑ Akzo Nobel decision of the Court of Justice of the European Union of September 14, 2010, case C-550/07 P. See also: Martin Henrich in A professional secret for corporate lawyers, Anwalts Revue, 2/2008, p. 55 ff.
  15. ↑ See paragraph 18 of this decision.
  16. ↑ RGBl. No. 96/1868.
  17. ↑ Lawyers Act (RAG) of November 8, 2013, LGBl. 415/2013.
  18. ↑ The obligation of confidentiality continues for them even if employees or auxiliary persons no longer work for the lawyers.
  19. ^ Marius E. Mann in Legal Confidentiality and Corporate Governance, p. 92.
  20. ^ Renfield Corp. v. Remy Martin SA ( Delaware )
  21. ^ Matthias Kilian in Legal Foundations of Legal Practice , p. 21
  22. ↑ However, this is to be interpreted in a very restrictive manner and does not generally entitle to breach legal confidentiality like the ECHR in the case. Petri Sallinen et autres c. Finlande (50882/99) in 1995 and in Rs. Michaud c. France (12323/11), margin number 118 f in 2012. But see also the case law of the ECJ on cartel agents, z. E.g .: decision of October 22, 2015, C-194/14 P, "AC Treuhand II".
  23. ^ Akzo Nobel decision of September 14, 2010.
  24. ↑ See e.g. B. BGE decision 135 III 597 The attorney's privilege is also to be kept vis-à-vis the client's heirs.
  25. ↑ See e.g. B. Constitutional Court in case B568 / 93 or decision of the Obwalden Lawyers' Committee of June 23, 2004 (AKO 02/008), point 6.c.