Ombudsman’s statement on attorney-client privilege

The Helsinki Foundation for Human Rights addressed the Commissioner for Human Rights with a request to apply to the Constitutional Tribunal for the constitutional review of the law that enables the waiver of the attorney-client privilege enjoyed by advocates and legal advisers.

According to the HFHR, it is necessary to examine the constitutionality of the provisions that regulate protection of the attorney-client privilege. As the Helsinki Foundation argues, a special attention in this regard should be given to the issue of whether the restrictions adopted in the Code of Criminal Procedure comply with the constitutional principle of proportionality.

This is the third statement of the HFHR issued over the last weeks in respect of the attorney-client privilege. Late in October, the Foundation issued a statement in which it expressed concerns over increasingly more frequent cases of waiving the professional secrecy obligations of attorneys (to find out more, use this link). A consequence of this statement was a brief submitted to the Regional Court in Warsaw that heard the complaint against the decision waiving the attorney-client privilege in the case of an advocate, Jacek Kondracki.

In the brief, the HFHR noted at least several defects of the applicable regulations that enabled a waiver of the attorney-client privilege. Currently, this is possible if two conditions are jointly satisfied: a waiver must serve the best interests of the administration of justice and no other piece of evidence can be produced to show the facts to which the waiver refers.

In the opinion of the HFHR, these regulations violate individuals’ right to privacy. This is because they allow for obliging an advocate or legal advisor to disclose information they obtained in the course of providing legal advice. “This not only undermines social trust in people pursuing professions of public trust, but also erodes the foundations of the state and its justice system”, claims Marcin Wolny, the HFHR’s lawyer and author of the statement. It is thus worth considering whether or not a better option would be to enable imposition of such a limitation on the right to privacy only in situations that involve the most serious crimes.

Moreover, the applicable criminal procedure rules insufficiently protect an individual’s right to defence. The law says that an advocate or a legal advisor must not be heard as a witness in respect of the facts they have learnt while giving legal advice to an arrested person. “Obviously, a hearing of a lawyer may lead to a violation of the right to defence and an infringement of the prohibition against self-accusation”, Mr Wolny adds.