The Professional Secret, Confidentiality and Legal Profession ...

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40 professional secrecy is not a criminal offence. Danish law is like continental law in that the right to maintain secrecy ('hemme1igho1de1se') and the obligation to maintain secrecy ('tavshedsp1igt') are specific legal concepts. Danish procedure, like UK procedure, is 'accusatoria1' rather than 'inquisitorial'. But the lawyer's right to withhold evidence is regulated by the Code of Procedure, as in Germany, Italy and the Netherlands. Correspondence between lawyers is not in principle confidential. Its confidentiality depends on circumstances. 42. Article 170 of the Danish Code of Procedure provides: "(1) Clergymen, doctors, defence advocates and lawyers (forsvarere og advokater) may not be required to give evidence on matters which have come to their knowledge on the practice of their profession against the wish of the person who has the right to require that secrecy be maintained. (2) The court may order doctors or lawyers, other than defence advocates in criminal cases, to give evidence when the evidence is considered decisive for the outcome of the case, and when the nature of the case and its importance to the party concerned or to society is found to justify a requirement that evidence be given. In civil cases such an order cannot be extended to include what a lawyer may have learned from a lawsuit entrusted to his care or to the advice he may have given in such a lawsuit. (3) The courts may determine the extent to which evidence shall not be given, having regard to that which, by virtue of the law, the witness has the obligation to keep secret and about which the maintenance of secrecy has essential importance. (4) The rules in Arts. 1-3 apply also to the assistants of the persons concerned". 43. The essential difference between Danish law and the law of the other eight states appears to be this: In all the other eight states / ~ ~
states the question of whether evidence must be given is answered by reference to a test which is essentially objective: in the UK and Ireland, the question is "Is the communication privileged?"; in the Six, the question is "Does the professional secret apply?". In Denmark, further subjective tests are applied: "(i) Is the evidence decisive for the outcome of the case? (ii) I~ it important to the party concerned or to society? (iii) Does the maintenance of secrecy have essential importance?" The introduction of these subjective tests marks a major difference between Denmark and the other eight states. 44. Article 72 of the Danish Constitution provides that: "House searching, seizure, and examination of letters and other papers as well as any breach of the secrecy to be observed in postal, telegraph, and telephone matters shall take place only under a judicial order unless particular exception is warranted by Statute". The courts may permit the interception of letters and wire-tappingl but letters exchanged between an accused person and his defence advocate are, within limits, excepted from seizure.2 Here again, the ultimate decision rests with the courts. D. PROBLEMS / 1., Code of Procedure, Arts.750 (letters) and 750a and 750b (wire-tapping). 2. Code of Procedure, Art.750(1). 41
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 and 28: (iv) Protection of correspondence b
Page 29 and 30: item of information is a "secret" i
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: information. This legislation does
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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