CYIL vol. 15 (2024)

CYIL 15 ȍ2024Ȏ LAWYER’S CONFIDENTIALITY ȍLAWYER’S SECRECYȎ IN THE CASE LAW … The aim of this amendment is, among other things, to fulfil one of the points of the Government’s Programme Declaration, which is the commitment to protect the fundamental attributes of the right to a fair trial, including the protection of the exercise of the activities of professional chambers against unjustified state interference, including the safeguarding of the legal right to confidentiality. 41 For this reason, the Government’s draft law proposes to introduce a new section 3a, according to which (para. 1) Information constituting the content of communications of an advocate, a legal assistant and other persons referred to in section 21(9)(a) with a client in the course of practising law is confidential if such confidentiality is in the interest of the client. Similarly, information obtained or created in the course of or in the immediate context of the practice of advocacy shall be confidential if it reveals information about the content of the communication referred to in the first sentence or about the legal services provided, if such confidentiality is in the interest of the client. The proposed amendment can be described as extremely necessary, although many of the proposed safeguards can already be derived from constitutional guarantees, as explained above. Nonetheless, it is most supportive if these safeguards are explicitly enshrined in the statutory regulation, particularly with regard to the proposed second and third paragraphs of the proposed regulation. It provides that (para. 2): Information under paragraph (1) which is in the possession of any person other than a lawyer, a legal practitioner or other persons referred to in section 21(9)(a) shall be expressly marked so as to make it clear that it is confidential information protected under this Act and (para. 3) Any person who obtains information under paragraph (1) shall not misuse or disclose it to any other person without lawful authority or without the consent of the person to whom the legal services were provided. Thus, the proposed regulation meets the objection of the weaknesses of the legal regulation of the protection of legal professional privilege raised by the Union of Defence Counsel that, for some of these provisions, the protection of the content of communications between the accused and the defence lawyer is remembered, but only on the part of the defence lawyer (section 78(2), regarding the obligation to produce or hand over the case; section 85b search of premises where the lawyer practises), not on the part of the accused or suspect . 42 The explanatory memorandum stresses that the protection of attorney-client privilege, which results in the obligation of confidentiality under Section 21 of the Advocacy Act, constitutes a necessary protection of the attorney’s client, particularly in the context of the constitutionally guaranteed right to legal aid. It sees the core of the protection primarily in confidential information, which it understands as information constituting the content 41 However, it should be added that the government’s draft amendment to the Advocacy Act does not only concern the protection of legal professional privilege. 42 Cf. Opinion of the Union of Advocates of the Czech Republic/Czech Bar Association No. 1/2019 on the shortcomings of the legal regulation of the protection of the confidential relationship between an advocate and their client in criminal proceedings. Available at: https://www.uocr.cz/stanoviska/stanovisko-unie-obhajcu cr-c-1-2019-k-nedostatkum-pravni-upravy-ochrany-duverneho-vztahu-mezi-advokatem-a-jeho-klientem-v trestnim-rizeni/

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