CCBE paper seeks client confidentiality surveillance safeguards
Standards to be upheld to protect client confidentiality from state surveillance have been set out in a new paper from the organisation representing legal professional bodies from across Europe.
The document from the Council of Bars and Law Societies of Europe (CCBE) emphasises the role of the lawyer’s obligation of confidentiality in serving the interest of the administration of justice as well as the interest of the client, and that the obligation is therefore entitled to special protection by the state.
"Deep concerns" have arisen within the CCBE in recent years regarding revelations about the working methods of national intelligence services.
“The purpose of this paper is to inform legislators and policymakers about standards that must be upheld in order to ensure that the essential principles of professional secrecy and legal professional privilege are not undermined by practices undertaken by the state involving the interception of communications and access to lawyers’ data for the purpose of surveillance and/or law enforcement”, the paper states.
“Without the certainty of confidentiality there cannot be trust, which is key to the proper functioning of the administration of justice and the rule of law.”
Part I of the paper outlines the meaning and scope of client confidentiality by putting it into the context of the rights enshrined under EU law and the European Convention on Human Rights, as well as the approach taken by the European courts.
The recommendations which follow in part II seek to ensure respect for that principle by setting out six main conditions. These include keeping any surveillance within the bounds of the rule of law; regulation by adequate primary legislation; interception only of communications falling outside the scope of lawyer-client confidentiality; judicial authorisation in advance of any interception measure; any material obtained inviolation of the previous two points to be inadmissible in court; and legal remedies being available to lawyers and clients who have been subjected to unlawful surveillance.
The CCBE says that while it recognises the obligation of the state to ensure the safety of its citizens, legal professional privilege and professional secrecy are essential underpinnings of the rule of law.