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No fair trial without client confidentiality – CCBE

The CCBE contribution for the European Commission’s 2022 Rule of Law report has been adopted by its standing committee (25 February).

In its submission, the CCBE identified threats to the independence of lawyers and the Bars within EU member states, as well as listing the most important rule-of-law developments.

The CCBE called for a more developed analysis of the independence of lawyers and Bars as an indispensable component of the independence of the justice system and of the rule of law.

The CCBE, led by Irish lawyer James MacGuill (small picture), also supported the European Commission intention to include country-specific recommendations in the next Rule of Law Report.

Safety

These should refer to the need to ensure the independence and safety of all justice actors, including lawyers and Bars, as well as the obligation for member states to ensure access to justice, legal aid, and relevant funding to safeguard such access, the CCBE has said. 

The contribution also sets out a number of actions undertaken by the CCBE over the past year addressing various issues, and accompanied by member inputs referring to different intrusions on the independence of the profession. 

The following issues have been observed: 

• Surveillance of lawyers and breaches of the confidentiality of lawyer-client communications, especially when modern technology is used,
• Identification of lawyers with the actions of their clients,
• Violations of the confidentiality and the professional secrecy of lawyers,
• Substantive risk to the independence of the legal profession caused by the transposition of some EU law into the national legislation,
• Possible influence of the media in some countries, sometimes contributing to the misinterpretation of the role of lawyer, and
• Various other trends that may pose a risk to the independence of the legal profession and the functioning of justice.

On 1 February, the CCBE issued a statement on the Pegasus scandal, which revealed how spyware has been systematically misused to spy on lawyers, human-rights defenders, and journalists.

Infringements

The CCBE expressed its serious concerns about this attack on the core values of the legal profession, in particular infringements of the confidentiality of lawyer-client communications.

The body also issued guidance to lawyers about protecting such communications, which stresses that, without confidentiality, fair trials cannot take place. The CCBE also called upon national and European institutions to protect and enhance this cornerstone principle of the rule of law.

Material protected by professional secrecy and legal professional privilege must remain out of scope of surveillance operations, the CCBE has stressed.