CYIL vol. 15 (2024)

VLADISLAV VNENK of the communication of the lawyer, the legal assistant and other persons referred to in Section 21(9)(a) with the client in the course of practising law. 43 According to the explanatory memorandum, communication includes any form of communication in the broadest possible sense, which can be said to be consistent with the ECtHR’s case-law, 44 as described above. Protection will also be expressly afforded to information obtained or created in the course of, or immediately in connection with, the practice of advocacy, where information about the content of the communication or the legal services provided can be ascertained from it, but where such confidentiality is in the interest of the client. 4. Conclusion The practice of the legal profession stems from the confidential relationship between the lawyer and the client and the client’s trust in the confidentiality of the lawyer. The duty of confidentiality is not a privilege of an advocate which should be exempted from the generally applicable and binding legal order, but it is an obligation imposed on an advocate in the interest of their clients and for their protection (Constitutional Court ruling of 28 August 2009, Case No. II. ÚS 2894/08). The duty of confidentiality is thus a fundamental prerequisite for the provision of legal assistance and thus a necessary condition for the functioning of a democratic society (Article 1(1) of the Constitution of the Czech Republic). The established case law of the Constitutional Court (cf. already No. 87/1996 Sb. and u. ÚS), which, in addition to the criminal procedural context, emphasizes the principle of the independence of advocacy and the lawyer’s responsibility towards the client: The right to freely choose a defence counsel and the certain autonomy of his position in proceedings before the court (other public authorities), however, at the same time implies the duty of the defence counsel not only to submit the performance of the defence to the conditions of the law (Art.41 of the Criminal Procedure Code, Art. 16 of Act No. 85/1996 Coll, 41(1), (2), (6) of the Code of Criminal Procedure), but at the same time also his obligation to observe the ethical rules of his profession when providing legal assistance; however, the defender is responsible not to the court (public authority), but to the defendant, or to the public authority . Therefore, if a defence counsel violates the duties incumbent upon him in the performance of his defence (or if he provides legal assistance non lege artis and if it is not a criminal offence), no remedy can be sought except through the Bar Association. Even in the case of a perfect waiver of confidentiality, the courts (or other law enforcement authorities) should approach the questioning of former defence counsel on an exceptional basis if there are specific and serious reasons for doing so (e.g., when there are reasonable grounds for suspecting that a crime other than the one that is the subject of the criminal 43 In this respect, this includes all persons with whom the lawyer cooperates in the performance of advocacy, including, for example, expert consultants, IT specialists, foreign lawyers, private detectives, or media representatives and consultants. PAPEŽ, Vladimír., NESPALA, Marek. Duty of confidentiality. Bulletin of Advocacy . no. 4/2017, p. 57. 44 On this in more detail also e.g., KRATOCHVÍL, Jan. Chapter XVIII [Right to respect for private and family life (Article 8 ECHR)]. In: KMEC, Jiří, KOSAŘ, David, KRATOCHVÍL, Jan, BOBEK, Michal. European Convention on Human Rights . 1st edition. Prague: C. H. Beck, 2012.

126