The scope of attorney-client privilege for persons cooperating with a lawyer

Issues related to attorney-client privilege, although for several decades they have been the subject of discussion of doctrine, especially under criminal law, as well as court case law, can still provide interpretation problems[1].The scope of attorney-client privilege and its subject matter are specified in the Act of 26 May 1982 Lawyer Law[2] and Under section 19 Collection of Principles of Bar Ethics and Professional Dignity[3].

The specificity of the profession of lawyer, as well as the need to maintain guarantees allowing the full trust of the client in the lawyer, requires absolute secrecy of the lawyer.

Some doubts arise as to whether the lawyer's secret, which is binding on the lawyer, applies to a person who, although not itself, has legal powers, has worked with the lawyer to provide legal assistance and, consequently, has information covered by professional secrecy? This publication is an attempt to answer this question.

1. Introduction – scope and sources of attorney-client privilege

As per content Article 6(1) The barrister's bill, the attorney is obliged to keep secret everything he has learned about the provision of legal assistance.

This provision is the foundation of the profession of lawyer, ensuring respect for civil rights and freedoms and enabling the proper functioning of the judiciary and the legal system in the democratic state of law. In turn Article 6(2) The law on barrister provides that the obligation mentioned Under section 1 cannot be limited in time.

By the sound of it Article 6(3) that law, a lawyer, may not be exempt from the obligation of professional secrecy as to the facts which he has learned by providing legal assistance or by conducting a case. However, further provisions of the Law on Lawyers provide for exceptions to these principles. Provision Article 6ust.

4 provides that the obligation of attorney-client privilege does not apply to information made available under the Law of 1 March 2018 to combat money laundering and terrorist financing[4] and information provided under the provisions of Chapter 11 a Chapter III of the Act of 29 August 1997- Tax Ordinance[5].

Another source of legal secrecy is the Code of Bar Association Ethics. A correct interpretation of the law must not ignore the values and non-legal standards underlying these regulations and which, in the process of applying the law, shape their functioning[6].

Therefore, in the course of these deliberations, it is appropriate to mention the Code of Bar Bar Ethics, which is such a legal standard (it is not an act of law commonly in force). As per content section 19 section 1 the Code of Ethics of Advocates is very broad, i.e.

the lawyer is obliged to keep a secret and to prevent disclosure or misuse of anything he has learned in connection with the performance of his professional duties. Attorney-client privilege, according to section 19 section 2 The bar code of ethics shall also cover materials collected in the bar acts.

Developing the above-mentioned scope Under section 19 section 2 that code is section 3 that provision, i.e.

that the lawyer's secret includes not only the knowledge which the lawyer acquired during the provision of legal aid and in the lawyers' files, but also all messages, notes and documents relating to the case, obtained from the client and other persons, regardless of where they are located.

In turn section 4 the Code of Advocates' Ethics provides that the lawyer shall oblige his colleagues and staff and any person employed by him during his professional activity to comply with the obligation of professional secrecy.

1. Subject matter of attorney-client privilege in light section 19 section 4 a code of ethics

According to section 19 section 4 the Code of Bar Ethics, the obligation of attorney-client privilege concerns colleagues, staff and any person employed by the lawyer. Consequently, distinguishing two categories of persons assisting the lawyer during the provision of legal assistance,i.e.

Whereas it is appropriate to recognise that this provision should not be interpreted narrowly, i.e. Assuming that employees and employees should be understood as not only those involved in employment relations[7].

The above mentioned provision of the Code of Bar Ethics covers all persons who cooperate or cooperate in the provision of bar services, regardless of the legal form of that cooperation or cooperation[8]. This statement is reflected in the current functioning of the law firm, i.e.

by hiring non-legal persons or students of recent years of law studies. This provision is also applicable in cases where a lawyer orders work that goes beyond his competence, e.g.

in the case of ordering a comprehensive analysis of the company's functioning and its financial condition to the principal accounting officer, who comes into possession of the information the lawyer obtained in the course of providing legal assistance.

The efficient operation of law firms, which employ many lawyers, requires adequate administrative service. It seems necessary to employ IT specialists, translators, accountants, secretaries, etc.

The client must be guaranteed the confidentiality of the information provided in order to fully trust the lawyer and the same persons cooperating with him. Otherwise, in fear of disclosure, he could give a incomplete picture of the situation surrounding his case.

Therefore, in order to maintain confidence in a lawyer-client relationship, the catalogue of persons obliged to observe attorney-client privilege should be understood very widely on the ground section 19 section 4 Code of Bar Ethics.

The understanding of the subject matter in such a broad way is consistent with the essence of attorney-client privilege, since this secret is a pillar of real legal assistance.

It serves not only the interests of the client and the lawyer, but also the justice system and the public welfare, so it cannot allow gaps in its protection system[9].

In order to protect the confidentiality of information covered by attorney-client privilege, the practice of a written obligation by a lawyer (who is usually an employer) to keep confidential the information they will receive from him in the course of the provision of legal assistance has developed.

It should also be considered whether, in such a case, the confidentiality clause is not a substitute for attorney-client privilege for non-legalists who will possess such information.

The bar code of ethics does not contain common standards, as it has been passed by the Chief Bar Council, which is a body of professional self-government[10]. Therefore, only members of the bar may be allowed to exercise attorney-client privilege, i.e. lawyers and lawyers.

However, this does not mean that indirectly it cannot affect the obligations and rights of non-lawful persons who have acquired information covered by attorney-client privilege[11].

1. Nature of attorney-client privilege of persons cooperating with a lawyer in the event of criminal proceedings

Professional secrecy is legally protected by Article 180(2) Code of Criminal Procedure[12], i.e.

persons required to maintain notarial, barrister's, legal advisers, tax advisers, medical, journalistic or statistical secrecy and the secret of the Attorney General may be questioned as to the facts covered by that secret only if it is necessary for the sake of the justice system and the circumstance cannot be established on the basis of other evidence.

In the preparatory proceedings concerning the hearing or the authorisation of the hearing, the court shall decide, at a sitting without the participation of the parties, within a period of no longer than 7 days from the date of service of the prosecutor's application. There's a complaint for a court order.

However, is the obligation of professional secrecy hierarchically lower than the possibility of obtaining evidence on criminal matters?

The above question can be found in the resolution of the Supreme Court of 16 June 1994[13], in which, as the Supreme Court rightly stated: “in light Article 163 K.p.k.14 a person under obligation of professional secrecy shall have the right to refuse to testify as to the circumstances covered by the secret, and the obligation to testify and disclose those circumstances shall arise only if the court (the prosecutor) exempts him from the obligation to maintain that secret.

Such a standard leaves no doubt that the principle should be to respect the right to refuse testimony, except for the exercise of the powers of freedom from secrecy.

It is therefore not at present justified that the obligation to testify in criminal matters is in principle more important than the obligation to maintain professional secrecy." However, in order to ensure that the deliberations on the validity of attorney-client privilege by persons cooperating with the lawyer are transferred to the background of the strict lawyer's secrecy, the provision in question should be carefully examined.

Legislative under Article 180(2) K.p.k. established the subject-matter scope of attorney-client privilege as "persons required to maintain attorney-client privilege".

The use of terms with such a wide range of meaning instead of using precise wording as advocates or advocates, gives the possibility to apply the ratio legis of a given law[15]. The above considerations are justified under Article 1 Laws on the Bar, i.e.

that the main purpose of the lawyer is to provide legal assistance, to cooperate in the protection of civil rights and freedoms and in the formation and application of the law.

It should also be borne in mind that the legal assistance provided by the lawyer and his associates to the client is built on the fundamental principle of trust, i.e.

the attorney and his associates believe that the client will provide them with all relevant information concerning the case, and the client believes that his information will remain confidential.

Interference with this fundamental value of trust, without which effective legal aid could not be implemented, would constitute a violation Article 2 Constitution of the Republic of Poland[16], i.e. the principles of a democratic rule of law.

Therefore, it is justified to extend to lawyers who, acting on his behalf, have the knowledge covered by his attorney-client privilege.

Another important issue that cannot be overlooked is the provision Article 178(1) k.p.k. in the wording that a defender or lawyer acting on the basis of Article 245(1) k.p.k., on the facts which he learned when providing legal advice or conducting a case. Most of the arguments put forward concerning Article 180(2) k.p.k.

also applies to Article 178(1) k.p.k. However, in this case, we should focus on the differences between these provisions. The fundamental difference is the subjective scope of both provisions, i.e.

Under Article 180(1) k.p.k., in which the legislator established a very wide scope of the entity, and in the case of a provision Article 178(1) k.p.k. regulation is limited to a lawyer or defender. However, provision Article 178(1) k.p.k.

does not establish a duty of secrecy, but contains an absolute prohibition of evidence from questioning a defender as a witness. It should be stated that the same absolute prohibition is tied up by an associate of a defense attorney who has acquired information covered by a defence secret.

The opposite might have serious consequences affecting the absolute nature of the defence secret.

As a result, it would be possible, after obtaining an appropriate order from the court, to relieve the counsellor's associate of the obligation of secrecy, which would not be of a defence secret, to question him of the facts covered by the defence secret which provided legal assistance to the defendant.

This would open the way to circumvent the absolute prohibition of evidence from Article 178(1) In the light of the above considerations, the fact that the prohibition contained cannot be disregarded under Article 178(1) k.p.k.

is the development of the fundamental right of every human being to defend, established under Article 42(2) the Constitution of the Republic of Poland, i.e. that anyone against whom criminal proceedings are conducted has the right to defend himself in all stages of proceedings.

In particular, he may elect a defender or, in accordance with the principles set out in the Act, use a defender of his own motion. It is therefore appropriate to apply this provision of reasoning per analogy to the provision Article 180(2) K.p.k.

Although the problem of bartending by a co-worker has not been dealt with by the courts, it is worth mentioning the case law in which the line of argument remains in line with the issue. In the judgment of 25 November 1993[17].

The Krakow Court of Appeal explained that “It was right that the provincial court refused to carry out evidence from the testimony of a person delegated by the prosecutor to be present when the defendant was seen with the defense attorney for the content of the conversation.

Such evidence would violate the defendant's right of defence and would circumvent the prohibition of questioning the defender as to the facts he had learned during his term of office.’ The above position of the Court of Appeal in Krakow confirms the the thesis that it is permissible to extend the defence secret, which is a special case of attorney-client privilege, to persons with information obtained by an attorney in the course of the provision of legal assistance.

It is therefore all the more appropriate to recognise that the scope of the bar can be extended to persons cooperating with a lawyer.

The court, taking into account the constitutional right of each citizen to defend and respecting the institution of defence secrecy, prevented it from circumventing it by refusing to carry out evidence from the testimony of a person who came into possession of information covered by the defence secret.

This interpretation of the provisions of the law respects the institution of attorney-client privilege and indicates the purpose it is intended to serve.

In moving the above considerations to the subject matter of this publication, it should be stated that the interpretation of legal standards presented by the Court of Appeal in Krakow, in particular concerning entities obliged to maintain professional secrecy, coincides with the position presented by the author, i.e.

a wide range of subject-matter attorney-client privilege.

In the light of the considerations under discussion, it must be made clear that, in a criminal trial, a counsellor's associate who has come into possession of information covered by a defence secret as a result of the provision of legal aid cannot be heard under the circumstances covered by that secrecy, as this would constitute circumvention Article 178(1) K.p.k.

4. Summary

The institution of attorney-client privilege in the author's assessment should apply to the assistants of the lawyer regardless of the legal form of his employment or his cooperation with him. A lawyer's client must be guaranteed the confidentiality of the information provided in order to fully trust the lawyer and his associates.

Otherwise, in fear of disclosure, he might have provided an incomplete or distorted picture of the situation surrounding his case. Regulations provided for Under section 19 section 4 The bar code of ethics reflects the reality in which law firms currently operate, which increasingly employ people outside the bar.

A broad understanding of the subject-matter of attorney-client privilege provided for in the above provision of the Code of Bar Ethics seems justified, especially in the case of the public good and general trust associated with this profession. The same conclusion can be drawn under a criminal procedure, i.e. Article 180(2) k.p.k.

should be understood in such a way that the person who is obliged to maintain attorney-client privilege is not only members of the bar, but also those who cooperate with the barrister in the provision of legal assistance. Similarly, the question of the use of a defense secret by a lawyer co-worker is shaped.

In the author's opinion, it is clear that, in criminal proceedings, a lawyer co-worker - a defender who has come into possession of information covered by a defence secret as a result of the provision of legal aid, cannot be questioned on the circumstances covered by this secret, as this would constitute circumvention Article 178(1) k.p.k., which is the development of the fundamental right of every human being to defend, established under Article 42(2) Constitution of the Republic of Poland.

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