The Professional Secret, Confidentiality and Legal Profession ...

positive steps must be taken to liplace it in evidence"; unless
and until a document has been placed in evidence, no steps need
be taken to exclude it from consideration by the court.
11. Although the primary source of law in the UK consists in rules of
evidence, it is possible to derive from those rules, and from the
principles upon which they are based, a framework of rights and
duties giving positive and negative protection, analogous to those
which exist on the continent. In the UK, however, these rights
and duties belong only to the lawyer. With very few exceptions,
no other person may refuse to give evidence or refuse to produce
a document when required to do so by the courts. It is ultimately
the judge who must protect the citizen against disclosure of his
"secrets".
12. The lawyer's duty is a professional and contractual duty to his
client. Breach of duty may give rise to disciplinary sanctions
or to an action of damages, but not to a criminal prosecution.
If the client authorises the lawyer to give evidence or to produce
a document, the lawyer's rights and duties cease to exist. The
privilege, it is said, is the "privilege of the client". Moreover,
the client may lose that privilege against his will - for example,
where he has communicated information to a lawyer for the purpose
of co~mitting a fraud or crime. (Privilegium contra rempublicam
non valet).
COMMENT:
11. Before turning to a more detailed examination of the law of the
member states, the following points should .be noted at this stage:-
(1) Although the juridical source of the lawyer's rights and
duties is totally different, there exists in all the member states
a similar framework (express or implied) of rights and duties.
(2) Lawyers from each group of member states will find something
of /
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