The Professional Secret, Confidentiality and Legal Profession ...

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30 countries are primarily related to their activity as court lawyers. This explains many of the differences in the professional rules governing the conduct of lawyers in these five states as well as barristers and advocates in the UK and Ireland, on the one hand, and those which govern the conduct of German and Danish lawyers and of solicitors in the UK and Ireland, on the otherhand. (v) What is protected by the professional secret? 22. It is necessary to distinguish between the rules of law and the rules of professional conduct. It is a general rule of professional conduct in all the states of the Six that a lawyer should not reveal anything which has come to his knowledge in his professional capacity. be stated so generally or so simply. But the law cannot 23. In FRANCE, BELGIUM AND LUXEMBOURG, the terms of the Penal Code are such that any "secret" communicated in confidence to a lawyer in his professional capacity by any person is covered by the obligation of professional secrecy. The obligation (and the corresponding rights) therefore extend, not only to information communicated to a lawyer by his client, but also to information communicated by the opposing party, by his lawyer or by a third party, provided that the information constitutes a "secret" and has been communicated in confidence. And, since correspondence between lawyers is in principle confidential, the obligation covers information contained in such correspondence. It follows also that a lawyer is not completely free to disclose information derived from others to his own client. A "secret" has been defined as "tout ce qui a un caractere intime que le client a un interet moral et materiel a ne pas reveler", but the question of whether an item /
item of information is a "secret" is a pure question of fact in each case.l The obligation of professional secrecy applies even where the facts are susceptible of being known 2 by others. 1. Cass. crim. 24 mai 1862, D.P., 1862.1.545. 2. Crim. 24 jan. 1957. D. 1957. 298. 24. In ITALY, the essential elements are (i) that the fact should not be generally known (la non-notorieta del dato) and (ii) the existence of a juridically appreciable interest in its concealment (la sussistenza di un interesse giuridicamente apprezzabile al suo occultamento).l As already explained, the possibility of damage (nocumento) resulting from disclosure is an essential element in the criminal offence.2 1. Novissimo Digesto Italiano, 1969 XVI, VO Segreti (delitti contro l'inviolabilita dei) §5. p.958. 2. See above, para. C.lD. 25. In the NETHERLANDS, the law is substantially the same as in France, Belgium and Luxembourg except that the relationship between a lawyer and the opposing party or a third party is not treated as being per se a relationship of confidence. Information communicated to a lawyer by an opposing party or a third party is therefore not, in principle, protected. But this does not apply to information communicated by another lawyer acting for an opposing party or a third party. 26. In GERMANY, what is protected is a 'secret' (Geheimnis), which has been confided to a lawyer or "which has otherwise become known to him" (oder sonst bekanntgeworden ist).l It is therefore immaterial who is the author of the secret, provided that / 31
Page 1 and 2: COMMISSION CONSULTATIVE DES BARREAU
Page 3 and 4: THE PROFESSIONAL SECRET, CONFIDENTI
Page 5 and 6: I· I I every person who requires t
Page 7 and 8: I I L I 1 6. For the sake of brevit
Page 9 and 10: 6. In none of the Six is the obliga
Page 11 and 12: positive steps must be taken to lip
Page 13 and 14: C. DESCRIPTION AND ANALYSIS - DETAI
Page 15 and 16: advocate in a trial governed by sta
Page 17 and 18: if his client consents to disclosur
Page 19 and 20: most exceptional cases in accordanc
Page 21 and 22: 12. In GERMANY, there is a major di
Page 23 and 24: 14. Documents in the hands of lawye
Page 25 and 26: maintaining secrecy extends are in
Page 27: (iv) Protection of correspondence b
Page 31 and 32: THE UK recognised as a specific leg
Page 33 and 34: or in detail, as the law of Eriglan
Page 35 and 36: 34. For the same reason also, the l
Page 37 and 38: information. This legislation does
Page 39 and 40: states the question of whether evid
Page 41 and 42: the proper functioning of the commo
Page 43 and 44: de la meme maniere que l'avocat nat
Page 45 and 46: law" in this context includes gener
Page 47 and 48: 15. The Community and national auth
Page 49 and 50: LA / THEREFORE ADOPTS THE FOLLOWING
Page 51 and 52: ADOPTE LA RESOLUTION SUIVANTE 10 Qu

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