Professional secrecy of a legal advisor and advocate

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One of the rights and obligations of advocates and legal advisers is professional secrecy - not disclosing to third parties circumstances that are defined as professional secrecy. The article will explain what is meant by this concept, will provide examples of what is and what is not professional secrecy and how long this obligation lasts. What penalties may be applied to attorneys and legal advisers for breaching this obligation?

What is professional secrecy?

Pursuant to the Act on legal advisers, everything that a legal adviser learns about in connection with providing legal aid is obliged to keep secret. A similar provision exists in the Law on the Bar.

The Code of Ethics of the Attorney-at-Law (hereinafter: KERP) in art. 15 indicates that all information regarding the client and his affairs, disclosed to the legal advisor by the client or obtained in any other way in connection with the performance of any professional activities, regardless of the source of this information and the form and method of its recording, constitute professional secrecy. It also includes all documents created by the attorney at law and correspondence of the attorney at law with the client and persons participating in the case - created for the purposes of providing legal assistance. In addition, information disclosed to a legal adviser prior to taking up professional activities may constitute a professional secret if the circumstances of the case show that the disclosure was made for the purpose of providing legal assistance and was justified by the expectation that the legal adviser would provide it.

The Code of Bar Ethics (hereinafter: KEA) stipulates in § 19 that an advocate is obliged to keep secret and to secure against disclosure or undesirable use everything that he learned about in connection with the performance of professional duties. Also, all materials, messages, notes and documents relating to the case that have been obtained from the client and others, regardless of where they are located, are subject to legal secrecy.

Such a wide scope of professional secrecy is primarily aimed at strengthening the relationship between the client and his advocate or legal advisor. It is important that the person seeking advice does not feel fear that the information provided will be disclosed. It is essential to ensure freedom in the relationship between the client and his lawyer so that he can feel comfortable and that advice can be given as precisely as possible. If the client is afraid of presenting all the circumstances, it may turn out to be incomplete or even useless, or in the worst case - harmful to the client.

That is why it is so important by law to ensure that all information about the client's situation constitutes a professional secret of an advocate and legal adviser.

Professional secrecy and the obligation to keep it

The obligation of professional secrecy cannot be limited in time and also exists after the termination of the profession.

Example 1.

Legal counsel, Mr. Marian, is retired. He has not been running a law firm for several years due to his serious health condition. A former opponent of his client came to him, asking for information on a case from several dozen years ago. Mr. Marian cannot provide information about any issue that he learned from his former client and cannot discuss it with his opponent.

A legal advisor and an advocate are obliged to keep the course and content of the settlement negotiations in which they actively participated in secret, also vis-à-vis the courts and other adjudicating bodies.

Example 2.

Ms. Justyna, an attorney-at-law, represented her client in a case for the payment of PLN 100,000 as a contractual penalty for untimely performance of construction works. After the statement of claim was filed and served on the opponent, the defendant contacted him in an attempt to settle the case amicably. He offered the plaintiff the payment of PLN 60,000, but Justyna's client disagreed. The defendant's official position, in response to the lawsuit, sought to dismiss the claim in its entirety - it did not want to pay at all. At the hearing, the advocate cannot present to the court that the defendant offered the amount of PLN 60,000 - this would be a breach of professional secrecy.

A legal advisor and an advocate should expressly oblige persons cooperating with them in the performance of professional activities to maintain confidentiality in the scope covered by their professional secrecy, indicating their legal liability related to the disclosure of professional secrecy.

It is worth pointing out that trainee legal advisers and advocates have the same obligations as legal advisers and advocates - they must keep professional secrecy due to their membership in these local governments.

Other persons, such as secretaries, apprentices, assistants, who do not have the status of trainee or legal advisers, attorneys-at-law, are not required by the statutory obligation to maintain professional secrecy. Hence, counselors or advocates must instruct them about it, so that they do not disclose information that they find out in the office to third parties. This applies in particular to customer data, which should not be disclosed to other persons without their consent.

A legal advisor and an advocate are obliged to protect against unauthorized disclosure any information covered by professional secrecy, regardless of its form and method of recording. Documents and media containing confidential information should be stored in a manner that protects them against damage, distortion or loss. Documents and media stored in electronic form should be subject to appropriate access control and protection of the system against disruption, unauthorized access or loss of data. Legal counsel and advocate should control the access of cooperating persons to such documents and media.

Example 3.

Ms Paulina should store all documents in the office in such a way that third parties do not have access to their content. They must also be properly secured - against destruction, distortion, loss. Those in electronic form should be protected with passwords, and passwords may be made available only to authorized persons. You should control which people have access to documents and media.

However, there are exceptions to each rule and the obligation to maintain professional secrecy does not apply to information:

  • made available on the basis of the provisions on counteracting money laundering and terrorist financing;

  • transferred on the basis of the provisions of Chapter 11a, Part III of the Act of August 29, 1997 - Tax Ordinance, to the extent specified in these provisions. Start a free 30-day trial period with no strings attached!

Professional secrecy not kept - penalties for breach of the obligation

For breach of professional secrecy, i.e. an activity contrary to the Act on legal advisers and KERP, legal advisers, attorneys-at-law, trainee attorneys-at-law and attorneys-at-law shall be disciplined.

Disciplinary penalties include:

  • reminder;

  • reprimand;

  • a financial penalty in the range from 1.5 to 12 times the minimum remuneration for work in force on the date of the disciplinary offense;

  • suspension of the right to practice as an attorney-at-law or advocate for a period from 3 months to 5 years;

  • deprivation of the right to practice, which entails removal from the list of legal advisers or advocates without the right to apply for re-entry on the list for a period of 10 years from the date of validation of the sentence of deprivation of the right to practice as a legal adviser.

professional secrecy - summary

The professional secrecy of a solicitor and advocate is a pillar of these professions that are treated as professions of public trust. It is worth bearing in mind that legal advisers and attorneys represent clients in criminal, fiscal and family cases, which may concern very personal, often intimate matters, as well as those that may expose their clients to criminal liability or shame. If the client was concerned that the information might be disclosed, he would not seek legal advice. Hence, the rank of the act ensured that the attorney-at-law and advocate could not disclose information about his clients that he learned about during his professional activities. This applies not only to matters that he has knowledge of from the client, but also from other people - for example, witnesses at a hearing.

Also, correspondence with the client, notes, notes are professional secrecy and may not be disclosed.

Its violation may even result in expulsion from the profession of an attorney-at-law or legal adviser, therefore, one should be particularly careful to comply with this obligation in order not to be exposed to disciplinary liability.