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CONFIDENTIALITY IN THE LAWYERS PROFESSIONAL ACTIVITY

CONFIDENTIALITY IN THE LAWYERS PROFESSIONAL ACTIVITY
Telegina Tatiana, lecturer, associate professor

Riga Stradins University, Latvia

Conference participant

 

With the advance of information society problems related to confidential information protection are becoming increasingly important. At present Latvian legislation lacks the systemic and profound solution to these issues.
This article is an attempt toanalyse topical problems referring to the definition of the concept of confidential information and its frequency of usage in the lawyersactivities.
Keywords: information, commercial information, confidentiality, principle of confidentiality, commercial secret, professional secret, professional ethics of lawyer.

  What is meant by confidentiality as such? Confidentiality is necessity of preventing any information leak. For example, in the Anglo-American culture it is common to distinguish two basic types of confidentiality: voluntary (privacy) and enforced (secrecy). In the first case we mean prerogatives of personality, in the second case – official information accessible to a limited number of officials: a firm, corporation and government body, social or political organization. Though privacy and secrecy are similar in their meaning, they actually contradict each other: enhancement of secrecy leads to the violation and decrease of privacy.

However, more frequently in practice and literature we come across conceptions –confidential information and confidentiality principle, which naturally are not the same. Considering the conception of confidential information it is worth starting with the conception of information on the whole.

Information is one of the fundamental characteristicsof the humanity along with substance, energy, space and time. The term “information” used for defining it as a legal category is first to be met in Latvia in a law “About information publicity” [4] passed on 29 October 1998 and is defined as an aggregate of data, fixed in any technically available kind, acceptable for storage or communication.

In total, this definition may be acknowledged as correct besides the fact that not always information in general as well as confidential information in particular is fixed. For example, the data comprising private, family or even commercial secrecy are not always fixed on the material carrier, but may be found in human mind.

In the process of development of scientific thought the concept of information had different meanings: scholars continually resorted to the definition of the concept of information trying to establish its common features depending on branches of science. Thus, there are differences in defining the concept of information.

The concept of “confidential information” which has commercial value is a derivative from general category “information”.

In its turn, accessibility of information is one of the premises of human rights realization. Thus, an article 19 of “The Universal Declaration of Human Rights” [1] states that every individual has a right to freedom of beliefs and their free expression, this right includes the freedom of unlimited adherence to one’s beliefs and the freedom to search, receive and spread information and ideas by all means and irrespective of state borders. The right envisaged in this article also implies the imposition of certain obligations and liability. That is why it may be connected with such limitations as protection of state security and social order as well as respect of the rights and reputation of other individuals. Consequently, the right to receive information, the right to access to information is not an absolute one.

In Latvia there are a number of special laws which establish the category of information which may be referred to confidential and a number of persons which may have access to information ex officio. These laws are peculiar in the way that they do not specify which exactly information is that of limited category or confidential. Actually these normative acts state a number of persons entitled to get access to such kind of information.

Thus, confidential information may be defined as information which is not publically available and disclosure of which may cause damage to the rights and interests of its holder protected by law.

According to “ownership”, the holders of protected information may be:

  • government bodies and structures created by them (here we may speak about state secrecy, official secrecy and in certain cases commercial and bank secrecy):
    • legal entities (commercial, bank official, lawyer’s,  medical and auditor’s secrecy etc);
    •  natural persons – referring to private and family secrecy, notary, lawyer’s, medical secrecy;

According to the level of confidentiality (level of limited access) at present it is possible to classify only information related to state secrecy. Thus, for example, in the law “About state secrecy” information is divided into three levels of secrecy: especially secret, secret and confidential information.

What is really interesting is the fact that in most parts of normative legal acts of Latvian Republic regulating the activities of different specialists is mentioned the concept of confidentiality but there is no mention about the obligation to keep professional secrecy.

Confidentiality and professional secrecy – are these concepts synonymous? If we look back to history we find that in the Russian Empire there already existed such concept as professional secrecy bur in the Soviet times this term got out of usage.

At present professional secrecy consists mainly of the private data which became known to the employees of an enterprise or organization which renders services. In the author’s opinion the data related to professional activities may be those access to which is limited according to Satversme (e.g. secrecy of correspondence, telephone talks, e-mail, etc.). Professional secrecy may also include bank secrecy, tax secrecy, insurance secrecy, adoption secrecy, voting secrecy, confession secrecy and preliminary investigation secrecy.

In addition, legal regime of the most above mentioned secrets in Latvia has not been fully developed yet. Nevertheless, the normative regulation of confidentiality principle finds its reflection in a number of laws. For example, in article 11 Civil Procedure Law [3] besides the principle of publicity is reflected confidentiality principle while trying certain cases in court.

These principles are an antithesis, conflicting principles on which litigation can be based. As a consequence, the direction of legal regulation of trial and the type of trial are determined by the type of principle –publicity or closeness being the basis of a relevant normative system.

It is common knowledge that for a long time in the history of mankind legal proceedings were mainly closed, public supervision of trial was not possible. For example, closeness was not only a rule but absolute grounds an inquisition processes were based on. When bourgeois revolutions took the upper hand an absolutely opposite principle was introduced in legal proceedings –principle of publicity, a rule of the accessibility of justice for the public.

Demand for publicity has become some kind of warrant for justice and legality of judgments made by courts. In certain, strictly restricted cases legislations of most countries allow closed legal proceedings in state courts. As a rule, it is done to protect the interests of minors, to conceal details of people’s private intimate life, to preserve state and commercial secrets and in other similar cases.

As for commercial activities, such intent is driven by two factors: first, considerations of preserving commercial secrecy and second, necessity to secure reputation of business people. Preservation of commercial secrecy is of utmost importance for entrepreneurs. This is caused by the fact that commercial secrecy comprises such deliberately concealed from the third parties data that could legally serve as merchandise and thus, participate in civil “turnover” along with other benefits, recognized as objects of civil rights.

Principle of confidentiality and closeness of legal proceedings are exceptions from general rules about publicity of litigations. At the same time by regulating arbitration the legal proceedings conducted by private person’s legislation of almost all developed countries states confidentiality principle as one of the fundamentals of their activities. Latvian legislation about arbitrage courts, stating closeness of arbitration is no exception. Thus, article 512 of Civil Procedure law [3] states that arbitrage court procedures are closed. The data referring to arbitration are not transferred to the third party and are not published.

As for the reasons that encourage parties to make litigation of their disputes strictly confidential, it is possible to single out two of them. On the one hand, an individual, mainly a businessman is interested in keeping the dispute in secret and being not accessible to the third parties and especially to the public.

On the other hand, confidentiality of arbitration is based on special trust to an arbitrage court elected by the parties since confidentiality relations between the parties and the judge (or judges) makes it possible to resolve a legal dispute at best.

Thus, analyzing the ideas about confidentiality it is possible to conclude that this principle suggests several aspects. At first, confidentiality of arbitration by general rules excludes its publicity. It means that if parties do not pursue any other arbitration, the latter must be closed by rule of law. No third party (including journalists or public representatives) is entitled to demand their presence at arbitration or access to the materials of a tried case. As for the circle of persons who have the right to be present at arbitration these are of course arbitrage judges and the parties of arbitration. In some cases schedules of arbitrage courts envisage that in arbitration besides the above – mentioned persons may participate arbitrage officers, for example, secretaries, providing records of the arbitration.

Second, because of confidentiality arbitrators and arbitrage officers have no right to disclose information which became available to them during arbitration. Constituent parts of the obligations of relevant public officers and arbitrage officers are the following: obligation to secure closeness of information submitted to arbitrage, obligation to deny any person not being a party of arbitration such information, obligation of non-divulgence of information on one’s own initiative.

An integral part of obligation not to divulge a information about arbitration is an obligation to refrain from publications about arbitrage judgments if otherwise is not allowed by arbitration participants. At the same time practice of arbitration formed perceptions about the limits of this principle in practice.  In particular, schedules of some arbitrage courts allow publications of information about tried cases, but published information must exclude the possibility of identifying persons, participating in arbitration. It should be secured that information, containing names of plaintiffs and defendants, merchandise and prices not be published. As a result, the above-mentioned norm is directed to the provision of confidentiality of information about those persons, whose dispute was tried in arbitrage court. What may be published is legal fabula of resolved dispute without reference to the persons, resolving a dispute in such arbitrage court.

The question arises: in what respect does confidentiality principle bind the participants of arbitration? Is one party entitled without agreement with the other party to divulge that information which was submitted to arbitrage court and was an object of arbitration? Acting legislation has no answers to this question.  Altogether the practice of alternative means of resolving disputes, including both arbitration and mediation is aimed at the fact, than confidentiality principle should be extended to the participants of dispute, legal relations. For example, during mediation there exist the principles of mediation when a party cannot disclose information about the details of mediating process without the consent of other party’s mediator. But what is to be done if one of the parties infringed the principle of confidentiality of arbitration or mediation, disclosing some information? It is obvious that a way of protection for another party will be its right to demand damages which were caused by the infringement of confidentiality principle.

And the third aspect is that confidentiality principle envisages that arbitrators cannot be questioned by investigating bodies and court about the information which became available to them during arbitration. The ban to question arbitrators about the circumstances became known to them during arbitration can be considered as a constituent part of the institute of witness immunity of judges.

Witness immunity of judges is extended to all kinds of legal proceedings (civil, criminal, administrative, arbitrage). Though it is not explicitly stated in the law, obligation of obeying the principle of confidentiality which a given immunity envisages, found its expression in a number of codes of professional ethic of members of legal profession.

The very concept of confidentiality principle in general may be formulated as a principle, suggesting keeping closed (secret) information, for divulgence of which may follow legal liability.

Let us consider the essence of this principle on the example of advocacy. For example, article 1.3. of  Sworn lawyers Code of  Latvian Republic [5] states that a lawyer for defence  has no right to disclose information became available to him by giving legal advice even then when he  terminated his  legal relations with a  client. This obligation also refers to the lawyer’s assistants and staff. Exchange of any written  an oral information between a lawyer and a client if it is connected with rendering legal advice must be confidential. Normative  consolidation of this provision can be found in article 67 Latvian Law “About Bar association” [2] which states that a sworn lawyer has no right to disclose the  secrets of his clients not only during the case but also after termination of legal activities on this case. A lawyer bears disciplinary and material responsibility for his actions (art 70 Latvian Law “About Bar association”). Realization of the principle of confidentiality in the lawyer’s activities from the point of view of professional ethic refers to the fact that a lawyer cannot render professional service to his client until they both have reached mutualunderstanding. At the same time a client must be absolutely confident and be able to act only if the problems discussed with a lawyer and information submitted to him will be retained as confidential without any special requirements or provisions on the part of client. As a result, the issue of lawyer’s secrecy may be characterized both as legal and ethical.

As for the legal side, this problem is regulated by law norms. In its turn ethical norms have more general character, they are broader, multilateral and requireadditional regulation of corporate rules, in particular the rules of professional ethic. The principle of lawyer’s secrecy is established by law and is a legal norm, determining in some cases rights and obligations of the participants of litigation in legal proceedings. At the same time this procedure rule, related to lawyers bears profound moral impact that makes it one of the most important principles of professional lawyer’s ethic.

Taking into account this idea confidentiality principle may be formulated as following: a lawyer must keep in secret all information related to circumstances and facts submitted to him by his client or became known by a lawyer as well as the very fact of being addressed by the client and must not divulge this information until the client authorizes it or if it is required by law or the rules of professional ethic.

A lawyer shall keep confidentiality related to any client irrespective of the fact whether the client is a regular one or asks for legal advice for the first time. A lawyer shall keep in  secret both information gained by the client and information about the client, received during legal assistance. Ethical right of confidentiality shall be applied irrespective of the fact that other individuals may possess this information.

And here another question arises: which moment does lawyer’s secrecy start acting at? The very fact of consulting a lawyer is a professional secret. That is why the answer is very simple: from the moment when the client turned up in the lawyer’s office and all other actions of a lawyer become the object of lawyer’s secret. The nature of client’s request, the content of the first consultation are also objects of lawyer’s secrecy. Moreover, even if initially a  lawyer was addressed not by a would be client but by his relatives with whom there is not going to be any agreement, the general rule remains constant – all information gained from this relative, even the fact of addressing a lawyer is lawyer’s secrecy.

Nevertheless during lawyer’s activities there may occur different collisions related to the use of information directly gained by the client. For example, when the client provides his lawyer with some information but asks not to use it in court due to different reasons. The lawyer is convinced that these circumstances may play a key role in the position of the court. Moreover, without using this information the case has no judicial prospect. What should be done in this situation? The answer is rather simple. If really given but prohibited for usage data by the client are so important for successful dispute settlement a lawyer coming to the conclusion that there are no other means to ascertain these circumstances allowed by the client must drop his legal service while keeping in secret gained information in the future.  Even he can find out “useful” circumstances in such a way that the client has no objections, and this way proves to be more time consuming and less guaranteed the lawyer must continue rendering his legal service.

From the point of view of obeying the norms of professional ethic including confidentiality principle, discussion of professional issues among several lawyers (or representatives of other legal professions) at the presence of the third parties, moreover by mentioning concrete names of clients or circumstances is not desirable. Impromptusayings by lawyers and heard by the third parties may cause damage to the client’s interests. Moreover, this may negatively affect the respect to lawyer’s profession and jurisprudence in general. A lawyer for defence as well as any other lawyer, who deals with literature, write self –biography, memoirs etc. or is engaged in teaching or scientific activity must not divulge confidential information in these cases. A lawyer possessing information, being confidential state information or confidential commercial information about institution or natural person whilehe was at office must not represent the interests of the client that may lead to the conflict of interests with those organizations and private persons about which a lawyer has confidential information, received due to above-mentioned reasons.

 Nevertheless in certain cases a lawyer has the right to disclose professional secret. For example, certain information disclosure may be required in the plaintiff’s application (or a defendant) or any other document, which should be submitted during legal proceedings referring to the client’s case and his presence. A lawyer may disclose information on the client’s case to his partners or employees of the lawyer’s office. Disclosure of information is also possible if a client gives permission. In this case a lawyer for defence has the right to disclose it but is not obliged to do so. Even if a client asks to summon his lawyer for defenceto the court to give evidence about their talks, a lawyer for defence is entitled to draw  the court’s attention to his professional immunity and refuse from giving evidence if he believes it may do harm to the client’s interests, his own interests and corporation interests. A lawyer for defence, taking or having taken part in the client’s case shall not give evidence as a witness unlike the cases where this obligation is imposed by law or  he does it at the client’s request or in the interests of the client, his legal successors or partners. The same refers to the partners and assistants.

Divulgence of confidential information by a lawyer for defenceis possible in case when it is necessary in the interests of the client or his legal successor and getting such permission from the client is objectively impossible in a reasonable term. Lawyer’s secret obligatory must be disclosed only in two cases. The first – when a lawyer’s for defenceactions became an object of consideration of a disciplinary commission. And the second – when an object of lawyer’s secrecy became information about possible crime. Divulgence of information, necessary for crime prevention is legal if a lawyer for defencehas committing sufficient grounds to believe that there exists a real probability of committing a crime and there is inevitable situation when crime prevention by divulding information’s is the only possibility of preventing crime.

Summing up the above-mentioned, it is possible to conclude that confidentiality principle in a lawyer’s professional activity is the principle according to which a lawyer, rendering professional service must not breach an individual’s right to secrecy of private life or commercial activities, that is, must not divulge the data, gained in the process of cooperation, because the main aim of this principle is to give legal assistance to a client.

References:

1. The Universal Declaration of Human Rights (10.12.1948.)// http://www.un.org
2. Advokat?ras likums (pie?emts 27.04.1993.)// Latvijas V?stnesis.- 17.11.2010.
3. Civilprocesa likums (pie?emts 14.10.1998.)//Latvijas V?stnesis.-  20.09.2011.
4. Inform?cijas atkl?t?bas likums (pie?emts 29.10.1998.)//Latvijas V?stnesis.-26.06.2009.
5.Latvijas  Zv?rin?tu advok?tu ?tikas  kodekss// http://www.advokatura.lv

Comments: 5

Khachpanov Giya Viacheslavovich

Автором работы хорошо освящена тема, проведена аналитика и сделаны выводы. Актуальность темы не вызывает сомнений.

Пузиков Руслан Владимирович

Статья написана на высоком научном и техническом уровне. В статье имеется четкое структурирование позволяющее без каких либо сложностей выявить поставленную автором проблему раскрывающую ее актуальность, цели и задачи которые ставятся исследователем. Автор достаточно аргументировано и корректно отстаивает свою позицию.

Shaforostov Aleksey

Very good article, if author plans to continue this theme elaboration it must be additionaly described lawyers ethich.

Зульфугарзаде Теймур Эльдарович

Представляется необходимым больше внимания в докладе уделить также адвокатской этике, имеющей важное значение для адвокатуры любой страны мира. В целом, оценка "хорошо".

Tsybulnik Evgenia

Данная тема статьи актуально и в российском законодательстве. Так же у каждого адвоката имеется обязанность хранить тайну клиента. В данной статье наиболее четко сформулировано понятие конфиденциальности, сформулированы основные принципы данного определения и проработано историческое формирование конфиденциальности в различных отраслях применения. Так же данная статья знакомит читателей с законодательством Латвийской республики в сфере деятельности адвокатов.
Comments: 5

Khachpanov Giya Viacheslavovich

Автором работы хорошо освящена тема, проведена аналитика и сделаны выводы. Актуальность темы не вызывает сомнений.

Пузиков Руслан Владимирович

Статья написана на высоком научном и техническом уровне. В статье имеется четкое структурирование позволяющее без каких либо сложностей выявить поставленную автором проблему раскрывающую ее актуальность, цели и задачи которые ставятся исследователем. Автор достаточно аргументировано и корректно отстаивает свою позицию.

Shaforostov Aleksey

Very good article, if author plans to continue this theme elaboration it must be additionaly described lawyers ethich.

Зульфугарзаде Теймур Эльдарович

Представляется необходимым больше внимания в докладе уделить также адвокатской этике, имеющей важное значение для адвокатуры любой страны мира. В целом, оценка "хорошо".

Tsybulnik Evgenia

Данная тема статьи актуально и в российском законодательстве. Так же у каждого адвоката имеется обязанность хранить тайну клиента. В данной статье наиболее четко сформулировано понятие конфиденциальности, сформулированы основные принципы данного определения и проработано историческое формирование конфиденциальности в различных отраслях применения. Так же данная статья знакомит читателей с законодательством Латвийской республики в сфере деятельности адвокатов.
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