CYIL vol. 10 (2019)

MICHAL PETR

CYIL 10 ȍ2019Ȏ

I. Introduction Legal professional privilege (hereinafter referred to as “LPP”) may be generally defined as a rule of law according to which certain lawyer-client communications cannot be subject to compelled disclosure in legal proceedings. 1 The concept of LPP stems from common law and its purpose is to guarantee the client’s approach to legal aid. As the Supreme Court of the Unite States puts it: „the lawyer-client privilege rests on the need for the advocate and counsellor to know all that relates to the client’s reasons for seeking representation if the professional mission is to be carried out“. 2 Conversely, such a concept is mostly foreign to European jurisdictions, where only the lawyers’ professional secrecy, i.e. their duty not to disclose information conveyed to them by their clients, is mostly stressed. These two concepts however cannot be confused: “Referring to “professional secrecy” or “confidentiality” as the “equivalent” doctrine to legal privilege in civil law jurisdictions […] leads to confusion. Professional secrecy as such is a duty, a generic obligation imposed on a professional to keep matters discussed with the client in strict confidence and not to disclose them to third parties. […]. But there is no automatic relationship between such duties of “professional secrecy” or “confidentiality” and a privilege against the compelled production of evidence, even where these duties emanate from legislation. Many professions have a duty of secrecy, few have privilege”. 3 Under the European Convention onHuman Rights (hereinafter referred to as “Convention”), the concept of legal professional privilege is well established; the jurisprudence of the European Court of Human Rights (hereinafter referred to as “ECtHR”) however mostly refers to criminal cases. Conversely, the EU law and the Court of Justice of the European Union (hereinafter referred to as “CJ EU” dedicated its case-law mostly to non-criminal cases, in particular to competition law enforcement, even though recently, the EU law covered this topic also for the criminal proceedings. 4 In the EU Member States, the situation is very diverse and it is not a goal of this article to bring an exhaustive comparative analysis thereof; we will instead concentrate only on our home jurisdiction – the Czech Republic. In this article, we will first explore the concept of LPP in the ECtHR’s jurisprudence (Chapter II), followed by the CJ EU’s jurisprudence in the area of competition law (Chapter III) and the EU legislation in other areas of law (Chapter IV); finally, the situation in the Czech Republic (Chapter V) will be discussed. 1 GIPPINI-FOURNIER, E. Legal Professional Privilege in Competition Proceedings before the European Commission: Beyond the Cursory Glance. Fordham International Law Journal , 2004 (4), p. 970. 2 Judgment of the Supreme Court of the United States Trammel v. United States , 445 U.S. 40, 51 (1980). For a thorough comparison between US and EU approach to LPP, see e.g. HILL, A. A Problem of Privilege: In-house Counsel and the Attorney-Client Privilege in the United States and the European Community . Case Western 4 Directive 2013/48/EU of the European Parliament and of the Council on the right of access to a lawyer in criminal proceedings and in European arrest warrant proceedings, and on the right to have a third party informed upon deprivation of liberty and to communicate with third persons and with consular authorities while deprived of liberty. Journal of International Law , 1995 (1), p. 145. 3 GIPPINI, FOURNIER, E. (sub 1), p. 973.

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