CYIL vol. 15 (2024)

CYIL 15 ȍ2024Ȏ LAWYER’S CONFIDENTIALITY ȍLAWYER’S SECRECYȎ IN THE CASE LAW … the rule of law 20 not only in the sense of the constitutional order, but also in the sense of European Union law (here in particular Article 2 TEU). 21 Within the framework of the professional bar regulations, we can find the regulation of confidentiality in the Code of Ethics, in particular in Article 14(2) of the Code of Ethics, according to which ‘ a lawyer is obliged to duly and timely instruct all persons involved in his/her activities related to the provision of legal services on the scope of their statutory duty of confidentiality, including in connection with the witness duty of such ’ persons. At the same time, Article 17a of the Code of Ethics for Lawyers. 22 The special importance of confidentiality is also emphasised in the wording of the lawyer’s oath, which reads as follows: ‘ I promise on my honour and conscience to respect the law and ethics of the legal profession and to protect human rights. I promise to observe the duty of confidentiality and to uphold the dignity of the legal profession .’ The existence of special protection of confidentiality of communication between attorney and client at the constitutional level is justified primarily by the special status of attorneys in the context of a democratic state governed by the rule of law, 23 when attorneys are part of the judiciary in a broader sense and help ensure the administration of justice. 24 T hus, attorney-client privilege is a necessary condition, first and foremost, of the right to counsel, 25 the client of an attorney must be assured that they can disclose to their attorney, without fear of disclosure, all information in connection with their case, so that the attorney can competently provide legal assistance. 26 Thus, this is not only because of the possible fear of disclosure of the information provided in relation to the state, but also to third (private) parties. In other words, in the context of constitutional guarantees, the individual must be free to choose their own counsel, with whom they will be guaranteed independent legal advice. 27 In particular, in the context of the defence of an accused person, it is therefore essential that the accused (or the detainee or suspect) be able to disclose to their legal counsel without fear whether they are the perpetrator of the act with which they are charged, so that 20 MELZER, Filip. On the attorney’s confidentiality obligation. Bulletin of Advocacy . no. 1-2/2024, p. 11. 21 Cf. e.g., Opinion of Advocate General Juliane Kokott in Case C-432/23 Ordre des avocats du Barreau de Luxembourg. 22 When carrying out a search or other search pursuant to the Criminal Procedure Code, when carrying out a tax inspection pursuant to the Tax Administration Act and when carrying out a subsequent inspection pursuant to the Customs Act, if such search or inspection is carried out on the premises where the advocate practises law or where documents or other information carriers may be located, which contain facts to which the attorney’s duty of confidentiality applies under the law ( document ), the attorney shall notify the authority competent to conduct the search or inspection ( competent authority ) of his or her statutory duty of confidentiality and the related limited editorial obligation. The lawyer may only allow the competent authority to see the contents of documents which he considers to be covered by the lawyer’s duty of confidentiality with the consent of a representative of the Chamber present at the search or inspection. If the representative of the Chamber does not grant the competent authority consent to inspect the contents of the document, the further procedure shall be governed by the relevant legal and professional regulations. 25 The European Court of Human Rights, for example, in its decision in the case of Oferta Plus S.R.L. v. Moldova of 19.12.2006 (Application no. 14385/04) and in connection with the above-mentioned decision of the ECtHR in the case of Campbell v. The United Kingdom of 25.3.1992 (Application no. 13590/88). 26 The Constitutional Court’s ruling in Case No. IV ÚS 662/23 of 21.11.2023; CJEU judgment of 8.12.2022, Case C-6945/20 Orde van Vlaamse Balies and others . 27 Opinion of Advocate General Juliane Kokott in Case C-432/23 Ordre des avocats du Barreau de Luxembourg. 23 JIRSA, Jaromír et al. Key to the Courtroom . 2nd ed. Prague: Wolters Kluwer, 2018, p. 475. 24 JIRSA, Jaromír et al. Key to the Courtroom . 2nd ed. Prague: Wolters Kluwer, 2018, p. 479.

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