mercoledì, dicembre 20, 2006

Legal privilege and secret professionnel

Legal privilege and money laundering rules in the European Union

…even strongly activist governments hesitate to require counsel
to turn against their client and some form of
attorney-client privilege tends to be recognized.
M.DAMAŠKA, The faces of Justice and State authority, Yale,1996, p. 175
All Member states' legal systems provide special rights and privileges for lawyers and defence attorneys in the sense that "the law protects from disclosure information communicated in confidence to a lawyer by his clients" also guarantying strict rules for searching and seizure of documents based in lawyers's offices[i].
These privileges are mainly guaranteed on the basis of two different traditions: the common law traditional "legal professional privilege" (to which confidentiality is also connected) and the model of the "secret professionnel", already introduced in the Napoleonic codifications.

These two traditions have met a common ground at the European level, being recognized and guaranteed both by the European Court of Justice and by the European Court of Human Rights.

Advocate General Léger in the Wouter case briefly synthesized the essence of legal profession briefly enumerating the three main pillar of legal profession:
"[…] attributes which in all the Member States form part of the very essence of the legal profession. They are the duties relating to the independence of lawyers, respect of professional secrecy and the need to avoid conflicts of interest" (p. 180).
The EU leading case on the theme is the AM&S Europe limited vs. Commission of the 18th of may 1982 (of main interest paragraphs 18-25).
ECJ makes a wide analysis of the Member states' legal systems arriving at the following conclusions:
"Community law , which derives from not only the economic but also the legal interpenetration of the member states , must take into account the principles and concepts common to the laws of those states concerning the observance of confidentiality , in particular , as regards certain communications between lawyer and client . That confidentiality serves the requirements , the importance of which is recognized in all of the Member states , that any person must be able , without constraint , to consult a lawyer whose profession entails the giving of independent legal advice to all those in need of it" (p. 18) .

The "legal privilege" has been recognized by the ECJ mainly for independent lawyers (independence resulting also as a duty and not just as a privilege):
"As regards the second condition , it should be stated that the requirement as to the position and status as an independent lawyer , which must be fulfilled by the legal adviser from whom the written communications which may be protected emanate , is based on a conception of the lawyer ' s role as collaborating in the administration of justice by the courts and as being required to provide , in full independence , and in the overriding interests of that cause , such legal assistance as the client needs . the counterpart of that protection lies in the rules of professional ethics and discipline which are laid down and enforced in the general interest by institutions endowed with the requisite powers for that purpose . such a conception reflects the legal traditions common to the member states and is also to be found in legal order of the Community" (p. 24).

The European Court of Human Rights, on his side, recognized the legal privilege founding it both on art. 6 and art. 8 of the Convention and considering the privilege functional to a correct administration of Justice:
"It has, in this connection, to be recalled that, where a lawyer is involved, an encroachment on professional secrecy may have repercussions on the proper administration of justice and hence on the rights guaranteed by article 6 of the Convention" (p. 37, Niemietz v. Germany of 16/12/1992).
The same principle was reaffirmed in the case Foxley v. U.K. of the 20th of June 2000 in which the Strasbourg judges had the occasion of remembering and reaffirming importance of such principle: "principles of confidentiality and professional privilege attaching to relations between a lawyer and his client" (p. 44).
If the European Convention provides the right to a lawyer just for people indicted of a crime, the EU Charter has extended the right to a counsel to "everyone", as no limitation to civil or criminal cases is provided. Anyway no clear limitation emerges by the ECHR's case law.
From this quick overview come out that, with no doubt, a sort of legal privilege is surely part of the Community law, being included in that common constitutional traditions to which art. 6, p. 2 of the EU Treaty makes its reference as general principle of Community law.
Its presence in all national legal systems of the European Union - mainly as principle of public order, sometimes directly acquiring the status of constitutional provision (Spain, art. 24), but always able to be included in the fundamental right to legal defence (due process) - makes of the legal professional privilege a clear general principle of Community law.

One of the problems that arise by the case in analysis concerns the possibility that the legal privilege would apply only to relations between lawyers and clients based up on a litigation or any judicial procedure (contentieux).
This requirement doesn't emerge neither from the texts nor from the praxis and there are no reasons for believing that the legal privilege only can be guaranteed with regard to a litigation.

European legal systems, also when provide for limitations to confidentiality and legal privilege, don't found these restraints on the presence of a litigation or other kinds of procedures.

In the Wouters case (C-309/99) this point - the presence or not of a legal procedure - doesn't seem to acquire relevance with regard to the principle of the lawyers' independence, neither this kind of difference is made by the Constitutional Court of Britannic Columbia that faced a similar question (see: the law societies of British Columbia & Canadian Bar Association vs. Attorney general of Canada, 2001)[ii].

Anyway the possibility of partially posing limits to these rights – if possible - has to be accurately balanced also recalling the application of the Community general principle of proportionality; legal privilege has also to be deemed consistent with a correct functioning of the machinery of justice and with the purposes of the directive.
The main aim of legal privilege has been resumed by the US Supreme Court:
"its purpose is to encourage full and frank communication between attorneys and their clients and thereby promote broader public interests in the observance of law and administration of justice. The privilege recognizes that sound legal advice or advocacy serves public ends and that such advice or advocacy depend upon the lawyer 's being fully informed by the client".

Generally Member States don't make difference between lawyers involved or not in a litigation.
In Italy, for example, the Sezioni Unite of the Corte di Cassazione considered not relevant the fact that a lawyer act as defence attorney in a certain litigation to recognize his and his office a special privilege from act of investigation, searching and seizure (Cassazione penale, Sezioni Unite, 14 of January 1994, M.D.G. and Sezioni Unite 12 of November 1993, De Gasperin). Less or more the same position has be taken by the Chambre criminelle of the French Cour de Cassation not always univoque) that has recognized a particular guarantee to lawyers' offices against act of search and seizure not just in case of litigation but also when the lawyer has just the role of adviser (sentence of the 30th of June 1999, n° 97-86.318, Publié au Bulletin):
" alors que, d'une part, aux termes de l'article 66-5, modifié de la loi du 31 décembre 1971, "en toutes matières, que ce soit dans le domaine du conseil ou dans celui de la défense, les consultations adressées par un avocat à son client ou destinées à celui-ci, les correspondances échangées entre le client et son avocat, entre l'avocat et ses confrères, les notes d'entretien, et plus généralement, toutes les pièces du dossier, sont couvertes par le secret professionnel".
The law of the 15th of June 2000 has even strengthened the position of lawyers in France providing some more guarantees in case of search and seizure. This reform has been interpreted in strict way by the case law that also recognized the legal privilege as being funded in European law. The limitation to those guarantees operates - as French Courts stated - in cases of participation of the lawyer to the crime.
"Le secret professionnel de l'avocat ne peut être entendu comme ayant un caractère absolu. Cependant les atteintes à ce secret, lequel constitue une norme européenne, ne sauraient être entendues que de façon restrictive, ce qui n'autorise la saisie des consultations et correspondances échangées entre un client et son avocat que si celles-ci révèlent de façon intrinsèque la commission par l'avocat d'une infraction" (Tribunal de grande instanceParis of 23.01.2003 as of 07.07.2000 or 02.10.2000).

The Italian Constitutional Court expressing its opinion about the extension of the professional secret recognized its strict link with the fundamental right to legal defence, providing a wide guarantee:
"La complessiva disciplina normativa del segreto di chi esercita la professione forense e della correlativa facoltà di astenersi dal deporre, quale testimone in giudizio, su quanto conosciuto nell'esercizio di tale professione, si ispira ad un principio che, nel suo contenuto essenziale, è risalente nel tempo. Questa disciplina risponde all'esigenza di assicurare una difesa tecnica, basata sulla conoscenza di fatti e situazioni, non condizionata dalla obbligatoria trasferibilità di tale conoscenza nel giudizio, attraverso la testimonianza di chi professionalmente svolge una tipica attività difensiva. La facoltà di astensione dalla testimonianza in giudizio presuppone la sussistenza di un requisito soggettivo e di un requisito oggettivo. Il primo, riferito alla condizione di avvocato di chi è chiamato a testimoniare, consiste nell'essere la persona professionalmente abilitata ad assumere la difesa della parte in giudizio. Il secondo requisito è riferito all'oggetto della deposizione, che deve concernere circostanze conosciute per ragione del proprio ministero difensivo o dell'attività professionale, situazione questa che può essere oggetto di verifica da parte del giudice. L'esenzione dal dovere di testimoniare non è, dunque, diretta ad assicurare una condizione di privilegio personale a chi esercita una determinata professione. Essa è, invece, destinata a garantire la piena esplicazione del diritto di difesa, consentendo che ad un difensore tecnico possano, senza alcuna remora, essere resi noti fatti e circostanze la cui conoscenza è necessaria o utile per l'esercizio di un efficace ministero difensivo. Da questo punto di vista la facoltà di astensione dell'avvocato non costituisce un'eccezione alla regola generale dell'obbligo di rendere testimonianza, ma è essa stessa espressione del diverso principio di tutela del segreto professionale. Il legislatore, disciplinando la facoltà di astensione degli avvocati, ha operato, nel processo, un bilanciamento tra il dovere di rendere testimonianza ed il dovere di mantenere il segreto su quanto appreso in ragione del compimento di attività proprie della professione. L'ampiezza della facoltà di astensione dei testimoni deve essere interpretata nell'ambito delle finalità proprie di tale bilanciamento. 3. - La protezione del segreto professionale, riferita a quanto conosciuto in ragione dell'attività forense svolta da chi sia legittimato a compiere atti propri di tale professione, assume carattere oggettivo, essendo destinata a tutelare le attività inerenti alla difesa e non l'interesse soggettivo del professionista. (emphasis added)"
House of Lords recently reaffirmed this basic tenet, stating that:
"The restraining and controlling framework [of the privilege] is built upon a belief in the rule of law, that communications between clients and lawyers, whereby the clients are hoping for the assistance of the lawyers’ legal skills in the management of their affairs, should be secure against the possibility of any scrutiny from others, whether the police, the executive, business competitors, inquisitive busy-bodies or anyone else[iii]".

Out of the European scenario still more explicit has been, on this point, the US Court of Appeals, Ninth Circuit, in an important opinion, considering:
"that is not true that the confidences of a client are respected only when given for the purpose of securing litigation. The attorney-client privilege protects confidential disclosures made by a client to an attorney in order to obtain legal advice, …as well as an attorney's advice in response to such disclosures. The attorney-client privilege applies to communications between lawyers and their clients when the lawyers act in a counselling and planningrole, as well as when lawyer s represent their clients in litigation. Indeed, the axiom that every man knows the law presupposes that everyone can find it out by consulting lawyers, before being hailed into court for violating the law" (U.S. v. Chen, 99 F.3d 1495).
But the point cleared out by the Appeal Court doesn't mean that all communications had with a lawyer will be privileged; the decision states it clearly:
"The privilege applies only when legal advice is sought from a professional legal advisor in his capacity as such…Likewise, lawyer-client communications were not privileged where the clients did not approach him for legal advice and assistance, but rather with the aim of finding [investment opportunities]. A lawyer's account ledgers revealing a client's financial transactions with third parties, which did no reveal the client's communication with the lawyer, or the lawyer's advice, were not privileged" (page 5).
In any case no privilege will apply to client communications "in furtherance of contemplated or ongoing criminal or fraudulent conduct".
This point could also be used to argument in the sense that when a lawyer act in his quality just advices regarding the legality of a certain conduct or economic operation, otherwise acting he can be considered aiding or abetting the perpetration of the crime.
The same judge, however, admitted that the solution is not always immediate:
"It is not easy to frame a definite test for distinguishing legal from non legal advice. Where the general purpose concerns legal rights and obligations, a particular incidental transaction would receive protection, though in itself it were merely commercial in nature – as where the financial condition of a shareholder is discussed in course of a proceeding to enforce a claim against a corporation. But apart from such cases the most that can be said by way of generalization is that a matter committed to a professional legal adviser is prima facie so committed for the sake of the legal advice which may be more or less desirable for some aspect of the matter, and is therefore within the privilege unless it clearly appears to be lacking in aspects requiring legal advice" (page 6).

Coming back to the European Union, the legislation under scrutiny seems to be violating the attorney-client privilege principle also producing a complete inversion of that of lawyers' Independence standing as one of the main pillar of the judiciary systems.
The Directive enumerates a number of cases in which lawyers are obliged (as they were public officer) to become a sort of informers of enforcement agencies; this will constitute an unacceptable limitation of the role of lawyers.
The application of these provisions, if the directive will be interpreted without attention in a wide way, can provide a situation in which a private asking for a legal advice indirectly (or directly) produces evidences regarding his involvement in a crime (criminalization of money laundering is a duty in European Union Law) in this way violating the nemo se detegere tenetur principle which violation has been recalled by the applicants before the Belgian Cour d'Arbitrage.

It appears possible to give of the contested directive an interpretation that - founded in the text of the document - is capable at the same time of respecting the fundamental rights as provided by ECHR and EU charter, and interpreted by international and national courts.
The directive has to be read in a narrow sense (this is the position taken also by the Slovak and, in a certain way, by the Italian government).
The situations in which independent legal professionals are obliged to inform the authority have to be considered as 'taxative' and to be related to situations in which the legal professional acts not purely as a lawyer but mainly as an economic or financial advisor, offering his services to the clients.
This appears necessary also to avoid that an unlimited privilege recognized to lawyers could constitute a discrimination (an unjustified unequal treatment) against other economic (business) operators that offer the same services, as lawyers do (but - this is the point - not acting as legal adviser).
This solution, as we stated, is already included in the text of the directive that in the considerations, at number 17 second phrase, states:
"There must be exemptions from any obligation to report information obtained either before, during or after judicial proceedings, or in the course of ascertaining the legal position for a client" (emphasis added).
The last part of the considerand clearly does not limit the legal privilege to the context of litigations, extending it to all legal advices, adequating in this way the directive at the legal privilege as generally interpreted.
This position is even strenghtened by art. 6 paragraph 3 let. a), where the anti laundering duties are not extended to legal professionals:
"with regard to information they receive from or obtain on one of their clients, in the course of ascertaining the legal position for their client or performing their task of defending or representing that client in, or concerning judicial proceedings, including advice on instituting or avoiding proceedings, whether such information is received or obtained before, during or after such proceedings" (emphasis added).
The same content of directive 2001/97/CE is provided for what concerns independent legal professionals by the directive 2005/60/CE.

Underlining the importance of interpreting the directive in the sense of excluding the duty to reveal information in cases the legal professionals act as legal advisers appears the right way of balancing exigencies included into the directive and the right to legal privilege as recalled by the applicants and deserving, with no doubt, of being included between constitutional common traditions.
Whatever will be the decision it appears necessary to stress the centrality of the legal professional and to reaffirm the need of its independence as the relevance of the privilege and confidentiality, because as David Edward argued during the AM&S hearing in 1982: "the freedom to consult the lawyer one chooses without creating admissible evidence is a fundamental human right in a society based on the rule of law"[iv] (amedeo barletta).

[i] D.A.O. Edward, The professional secret, confidentiality and legal professional privilege in the nine Member States of the European Community, 1976, p. 3.
[ii] "The very independence of the lawyer from the Government on the one hand and the client on the other is what makes law a profession […]. It's as crucial to our system of justice as the independence of judges themselves", Griffith, 413 U.S. 717, 732 (1973) (dissenting of Burger and Rehnquist).
[iii] Three Rivers DC v. Bank of England (No. 6) [2004] UKHL 48, ¶ 34 (Scott LJ).
[iv] Reported by J.Temple Lang, in The AM&S Judgment, in A True European, Essays for Judge David Edward, Oxford, 2003, p. 160.

1 commento:

Anonimo ha detto...

bella la citazione di damaska!