Legal professional privilege in Poland
Client confidentiality is an inherent element and fundamental duty in the legal profession. It is the cornerstone of the relationship legal professionals build with their clients. It also a guarantee of protection of the rights of the parties in judicial proceedings, including the right to a fair trial. But what is legal professional privilege? Can anything limit it? And is it losing strength in today’s reality?
In Polish law, legal professional privilege—in other words, professional confidentiality of advocates (adwokaci) and legal advisers (radcy prawni)—is regulated primarily in the Advocates Law, the Legal Advisers Act, and ethical codes: the Rules of Ethics for Advocates and the Dignity of the Profession, and the Code of Ethics for Legal Advisers. Legal professional privilege is also regulated to some degree in the Criminal Procedure Code and the Civil Procedure Code.
In the legal literature, professional confidentiality is understood to mean the right to enter into possession of secrets and the duty to maintain them in absolute confidence. Thus professional confidentiality is a right enjoyed by counsel, but first and foremost it is a duty toward the client (J. Naumann, Rules of Ethics for Advocates and the Dignity of the Profession: Commentary, 3rd edition 2017).
Significance of legal professional privilege
Legal professional privilege is one of the imponderables of the legal profession. Without it, it would not be possible to deliver effective and objective legal advice or maintain the client’s trust. First and foremost, however, realisation of the rights vested in the individual or legal entity, including the right to a fair trial, which the person facing the legal system might wish to exercise by seeking the assistance of professional counsel, could prove illusory without professional confidentiality. The touchstone is the sense of security in the confidentiality of information shared by the client. This is why it is so vital to ensure that professional confidentiality is adequately protected by advocates and legal advisers, persons working with them, and clients, as well as respected by the public authorities.
Subject-matter scope of professional confidentiality
The regulations governing professional confidentiality do not expressly define it. They only declare that advocates and legal advisers must maintain in confidence everything they learn in connection with providing legal assistance.
It is thus commonly recognised that professional confidentiality covers such things as:
- Case files and materials included in them
- Information, notes and documents concerning the matter obtained from the client and other persons, regardless of where they are found
- The source of funding from which the client or other person pays the advocate or legal adviser’s fee.
This is an open-ended list, and professional confidentiality also extends to information counsel obtains during or in connection with other activities as well. This can also include counsel’s own reflections and observations concerning the client or the case. The only boundary is set by the criterion that such initiative arose in connection with the delivery of legal assistance, which should be interpreted broadly.
It should be borne in mind that in practice, new areas of activity by advocates and legal advisers continue to open up, e.g. serving as a member of the supervisory board of a company, particularly appointed to oversee proper implementation and application of compliance procedures, along with all types of measures pursued by counsel in the course of internal investigations.
The duty to maintain professional confidentiality by an advocate or legal adviser is unlimited in time (and thus is not for example lifted upon the client’s death).
Personal scope of professional confidentiality
The duty to maintain professional confidentiality applies to advocates and legal advisers, as well as advocate trainees and legal adviser trainees. But in delivering legal assistance, counsel also rely on support staff who do not have professional qualifications. To a greater or lesser degree, these persons will come into contact with information concerning clients’ affairs. Nonetheless, there are no regulations expressly providing that the duty to maintain and respect professional confidentiality also extends to such persons.
But an analysis of the statutory regulations and bar rules from the perspective of the values on which professional confidentiality is founded must lead to the conclusion that it also covers an advocate’s or legal adviser’s non-legal staff. Counsel have a duty to ensure that professional confidentiality is also observed by trainees and all other persons working with counsel who obtain confidential information in the course of their work on the matter (e.g. administrative staff, persons employed by counsel, and persons retained by counsel to perform certain tasks).
Maintaining professional confidentiality in an age of relativism and digitalisation
From the perspective of an advocate or legal adviser, professional confidentiality should be regarded as absolute. This even applies to situations where the regulations permit counsel to be released from professional confidentiality, as may occur under the Criminal Procedure Code. The code provides for the possibility for the court to release an advocate or legal adviser from professional confidentiality, and interrogate the lawyer, when essential for justice and the circumstances on which the lawyer is to testify cannot be determined in any other way. Civil procedure essentially allows evidence to be admitted in the form of testimony of any person with knowledge material to the case. However, an advocate or legal adviser called as a witness may exercise the right to refuse to respond to questions if the testimony could violate essential professional confidentiality (e.g. Civil Procedure Code Art. 261 §2). This privilege is not provided for in criminal procedure, however.
Meanwhile, for the advocate, notwithstanding statutory encroachments on the privilege, the duty to maintain professional confidentiality is ethically absolute. This means that even when the regulations admit the possibility of releasing an advocate from professional confidentiality, the advocate has a duty to maintain it (including in a situation where the advocate is released from confidentiality by the client).
Counsel should also bear in mind that according to the Supreme Court of Poland, an advocate who, out of respect for the absolute prohibition on disclosing information obtained from a client, refuses to testify even when released from professional confidentiality by the court, cannot be effectively accused of suppressing evidence (resolution of 7-judge panel of the Supreme Court of 22 January 2003, Case I KZP 39/02, Lex no. 57084).
The obligation to maintain professional confidentiality also means the obligation to protect it adequately. Apart from the purely human factor in the approach adopted by counsel and the people working with them to maintain the confidentiality of information obtained in connection with the delivery of legal services, technical measures and best practices must also be applied.
This is especially relevant in the face of advancements in civilisation and new technologies, which also present threats to the existence of professional confidentiality. This makes it essential for advocates and legal advisers to apply all manner of security measures (such as antivirus software, protection of identity, encryption of transmitted documents, and use of secure communications channels).
In cross-border cases, at least at the level of the EU, legal service providers must also be aware of the CCBE’s Code of Conduct for Lawyers in the European Union—in particular point 5.3.1, which provides, “If a lawyer sending a communication to a lawyer in another Member State wishes it to remain confidential or without prejudice he should clearly express this intention when communicating the document.”
Another form of protection for professional confidentiality is to require the presence of a member of the bar during any search of a law office, to monitor compliance with the relevant provisions of the Criminal Procedure Code. Under these provisions, if the authority conducting the search discovers privileged documents, the documents must not be read but must be turned over immediately to the prosecutor or the court in a sealed package.
Another good practice is to enlighten clients on the scope of professional confidentiality and to indicate in the headings of documents addressed to clients (including emails) that they are privileged and confidential.
Current threats to legal professional privilege
Around the world there are visible trends toward relativising professional confidentiality. This can be attributed to many causes, some of which can be blamed on the bar itself. This primarily has to do with numerous financial and tax abuses, in Europe and America, where law firms have played an active role offering their dishonest clients a protective umbrella in the form of professional confidentiality. This has prompted state authorities in some countries to limit the scope of legal professional privilege to prevent future abuses. This trend has also been noted in the practice of Polish lawmakers.
Anti-money-laundering regulations create a major intrusion into professional confidentiality, in some respect turning lawyers into obligated institutions required to report suspicious transactions. This obligation affects advocates and legal advisers participating in a transaction, providing assistance to the client other than representing the client in the case. In this respect, the bar rules indicate that the duty to maintain professional confidentiality does not extend to information included in such reporting. It should be pointed out that in implementing the EU’s AML directives, Polish lawmakers did not adopt a solution creating a kind of filter in which the lawyer first submits the report to the head of the relevant bar association, who conducts an initial screening to determine whether a report is truly required, and if so, passes the report on to the authorities.
And over the past two years or so, there has been an evident growing trend toward interrogation of lawyers during criminal and civil proceedings, and searching of law firm premises.
For example, in the order of 14 November 2017 (Case II AKz 432/17), the Kraków Court of Appeal upheld an order by the lower court releasing an advocate from the obligation to maintain professional confidentiality, giving precedence to the perceived interests of justice. The key argument was that the evidence gathered did not suffice to elucidate the matter, and the accused (owners of a company the advocate had provided legal services to) could not be forced to testify against themselves, leaving interrogation of the advocate as the only possibility. The court also found that the scope of the authority or power of attorney granted by the client to the advocate in the matter was not itself covered by professional confidentiality. In this ruling, the court excluded from the scope of professional confidentiality actions connected with operation of the law firm, such as the division of tasks between staff members and legal trainees, the circulation of documents (and drafts), and the log of correspondence.
This trend toward treating counsel as a source of evidence can only lead to pathological situations—not only by confusing procedural roles and upsetting the procedural balance, but first and foremost by endangering fundamental professional values. A lawyer giving testimony could become the deadliest enemy of his or her own client.
Perhaps it should suffice to cite here the rule set forth in §19(8) of the Code of Ethics for Advocates: “An advocate shall not proffer evidence in the form of testimony of a witness who is an advocate or legal adviser in order to obtain disclosure by such witness of information obtained in connection with practice of the profession.”
When counsel is in, privilege is out?
Although the scope of professional confidentiality should not be subject to differentiation depending on the form in which the lawyer pursues the profession, the practice in this respect dictates otherwise. This primarily has to do with legal advisers practising as in-house counsel, working in the legal department of their only client, which is also their employer and about which they have practically unlimited knowledge.
Under the case law of the Court of Justice of the European Union, provision of in-house legal advice leads in part to a different assessment of the scope of professional confidentiality. The Court of Justice has recognised narrower protection in that context, and held that the exchange of correspondence with in-house counsel within an enterprise is not covered by legal professional privilege (C-550/07 P, Akzo Nobel Chemicals Ltd v Commission).
Final remarks
Without professional confidentiality and the obligation to maintain it, the legal profession would lose its reason for being. The trust between client and lawyer which is vital for the profession rests on confidentiality. Professional confidentiality sets the bounds beyond which the public authorities cannot encroach, even though the temptation is great, particularly when they spy in professional confidentiality a “gold mine” of information. We witness this as the authorities make cruder and cruder attempts to exploit statutory instruments to this end. This is why formation and cultivation of the proper attitude is so essential. In the event of doubt it is worth remembering, as stated by Zdzisław Krzemiński (Ethics for advocates, Wolters Kluwer, Warsaw 2008): “Like truth, confidentiality either applies categorically or it does not exist at all. Just as there is no quarter-truth or half-truth, there is no place for partial or relative confidentiality.”
Aleksandra Stępniewska, adwokat, Magdalena Kotowicz, Business Crime practice, Wardyński & Partners
