The Professional Secret, Confidentiality and Legal Profession ...

(iv) Protection of correspondence between lawyers:-
20. The procedure for search and seizure does not apply in civil
litigation. In civil litigation, the extent to which one
party can force another party to disclose documents is more
limited than in the UK. For this reason, the confidentiality
of correspondence between lawyers is treated on the continent
as a matter of professional rather than legal obligation.
21. In GERMANY, correspondence between lawyers is not treated
as confidential unless it is expressly marked "Confidential"
or "Without Prejudice", which is very rarely the case. In
the OTHER FIVE states, correspondence between lawyers is
treated as an extension of the confidential oral discussions
which take place between lawyers in the law courts ("les
confidences du pa1ais") and is therefore treated as being
confidential in princip1e.1 This principle does not apply
where (a) the correspondence is expressly stated not to be
confidential or cannot by its nature be confidential, (e.g.
where an avocat writes as 'mandataire' of his client) or (b)
the correspondence, although initially confidential, discloses
a concluded agreement between the parties. Otherwise,
correspondence between lawyers may only be produced in court by
agreement between the lawyers concerned or, if they cannot agree,
with the authorisation of the Batonnier in France, Belgium and
Luxembourg, the Deken in the Netherlands, or the Consig1io dell'
Ordine in Italy. For the same reasons, correspondence which is
in principle confidential should not be shown by the lawyer to
his client.
1. This is an example of something which
appears to be generally true - namely,
that the rules governing the professional
conduct of lawyers in these five
countries /
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