The Professional Secret, Confidentiality and Legal Profession ...

12. In GERMANY, there is a major difference in the provisions of
the Penal Code.
An offence is only committed by a person who
reveals a professional secret "without authorisation to do so"
(unbefugt). The author of the secret, rather than its
recipient, is to that extent "maitre du secret". The obligation
of secrecy continues after the author's death, 1 but a prosecution
may only proceed on the application of the person injured or his
next of kin.2 The right to refuse to give evidence
(Zeugnisverweigerungsrecht) is (like the duty imposed by the
Penal Code) conferred on a specific list of persons who "may no.t
refuse to give evidence if relieved from their obligation of
confidentiality".3 The list of persons entitled to refuse to
give evidence includes (i) "defence advocates of the accused
(Verteidiger des Beschuldigten) on matters which were confided or
became known to them in that capacity; (ii) "Rechtsanwalte,
Patentanwalte, [and] notaries on matters which were confided or
became known to them in that capacity"; (iii) "their assistants
and persons who participate in the practice of the profession in
preparation for a professional career".4 In the case of those
last mentioned, the question of whether the right to refuse to
give evidence shall be exercised is decided by their principals,
unless this decision cannot be obtained within a reasonable time.5
Again, there is no reference whatever to lawyers from other
countries or their assistants although, if they were to appear
as 'defence advocates', they would be protected. It is thought,
however, that they would be protected in the same way as German
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lawyers.
1. §203 IV St.GB.
2. §205 St.GB.
3. §53 11 Strafproze~ordnung (St.PO).
4. §53 1& 53a I. St.PO. The list also includes
ministers of religion, accountants and
auditors, members of the medical, pharmaceutical
and health professions, members of
federal /
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