HFHR statement on waiver of attorney-client privilege

The Regional Court in Wrocław has waived the attorney-client privilege and admitted testimony from an advocate. This has been yet another instance of a judicial waiver of the privilege that happened in recent months. In early September, the Warsaw Regional Court made a similar ruling against Jacek Kondracki, the counsel for journalists of the Wprost weekly magazine, in a case concerning the “wiretapping scandal”. The HFHR has presented a statement on the issue.

The attorney-client privilege is the attorney’s obligation no to disclose any information received from the client. The main purpose of this obligation is to protect particularly sensitive information divulged by clients to their lawyers in confidence. The privilege applies irrespectively of any pending court proceedings.

“The key purpose of the laws of the attorney-client privilege is to protect constitutionally guaranteed rights of citizens, but also to protect – indirectly – the justice system itself. The attorney-client privilege and another strictly related privilege, the criminal defence privilege, are at the very core of the advocate profession so we are very concerned with any further instances of them being waived by courts”, explains Marcin Wolny, a lawyer of the HFHR.

In its statement, the HFHR notes that the attorney-client privilege is of enormous importance for the fairness of a trial and the right to defence and privacy. “The HFHR is saddened to say that (…) the court’s ruling is an example of the growing and dangerous trend of law enforcement authorities and courts interfering with the attorney-client privilege, the very essence of the profession.

The European Court of Human Rights have on many occasions discussed the waiver of the attorney-client privilege. In its decisions, the ECtHR argued that the privilege was especially important for the proper operation of the justice system and constituted the foundation of trust and confidence between a lawyer and their client.

“In the next few days the HFHR will apply to the Regional Court in Warsaw for the submission of a question of law to the Constitutional Tribunal; the question is whether the provisions allowing the judicial waiver of the attorney-client privilege are in fact constitutional and in line with the European Convention on Human Rights”, Mr Wolny adds.