According to the Article 8 of the Federal Law, On Legal activities and Layers in the Russian Federation, Legal Professional Privilege stands for information that became known to the lawyer while he/she provides legal assistance to the client. The Legal Professional Privilege purpose is to restrict access to confidential information, preventing possible negative consequences for the client.
Article 6 of the Code of Lawyer Professional Ethics specifies information and documents the Legal Professional Privilege applies to. Namely:
The above list is non-exclusive; therefore, the lawyer shall protect some other information as well. Partners, interns, legal assistants, secretaries, accountants and other employees of legal firms should also abide be the confidentiality term.
Note that the legal advisers activities are not protected by Legal Professional Privilege, with exception for cases of official cooperation with a lawyer. Therefore, ordinary lawyers have no guarantees discussed below. Assistants and trainees do not have them either.
Legal Professional Privilege Guarantee
There are plenty of legal guarantees in regard with Legal Professional Privilege:
1. A lawyer cannot be interrogated as witness regarding the circumstances that became known to him/her in the process of the legal assistance provision. For this reason, a lawyer cannot be held criminally liable for refusing to testify or giving a deliberately false testimony.
2. A lawyer shall not testify on circumstances that became known to him/her in connection with provision of legal assistance.
3. A court decision ought to be obtained, in order to apply investigative and operational measures against a lawyer.
4. Documents seized from lawyers can be used as evidence only if these items are not included in the proceedings of the lawyers on the cases of his/her clients. Instruments of crime and items prohibited/restricted in the Russian Federation are excepted.
5. Lawyer's files cannot be seized, and lawyer's proceedings cannot be recorded on camera.
6. Assignment of the right of claim against the client without his/her consent is prohibited.
Unfortunately, in reality these guarantees do not constitute an obstacle to the violation of Legal Professional Privilege. Quite often the courts issue orders to conduct searches of lawyers with violations (for instance, they do not specify the particular items of search), so the investigative authorities seize documentation related to the clients.
It is a fact that the regulation on extent of responsibility for violation of unhindered lawyer's activities currently does not exist. Consequently, the regulations that stipulate guarantees are largely declarative in nature.
Disclosure under Legal Professional Privilege
A lawyer is obliged to abide by Legal Professional Privilege indefinitely, and only the client himself/herself may release him/her from this obligation. Moreover, such consent must be expressed in writing in the presence of a lawyer, provided that the client is acting voluntarily.
Disciplinary liability is provided for the disclosure of information constituting attorney-client privilege. Thus, an offending lawyer may receive a reprimand or a warning, and in some cases even lose his/her legal status. It is a case, for instance, if the lawyer has repeatedly violated Legal Professional Privilege. In addition, it is possible to hold a lawyer liable if damage was caused to the client as a result of his/her actions.
Nevertheless, clause 4 of Article 6 of the Code of Lawyer Professional Ethics allows defenders to disclose information constituting Legal Professional Privilege unilaterally in the following cases:
Apart from Legal Professional Privilege, the lawyer has other responsabilities. A lawyer does not have the right to:
To respect Legal Professional Privilege, a lawyer shall adhere to the recommendations approved by the decision of the Board of the Federal Bar Association of Russia on November 30, 2009.
Thus, Legal Professional Privilege can be considered an integral requirement for the lawyer's activity and an attribute of the right to legal assistance guaranteed by the Constitution of the Russian Federation.
Article 6 of the Code of Lawyer Professional Ethics specifies information and documents the Legal Professional Privilege applies to. Namely:
- Names of individuals and legal entities applying for legal assistance;
- information communicated to Attorney by the client;
- documents submitted by the client;
- contents of recommendations and legal advice;
- terms for the provision of legal assistance, etc.
The above list is non-exclusive; therefore, the lawyer shall protect some other information as well. Partners, interns, legal assistants, secretaries, accountants and other employees of legal firms should also abide be the confidentiality term.
Note that the legal advisers activities are not protected by Legal Professional Privilege, with exception for cases of official cooperation with a lawyer. Therefore, ordinary lawyers have no guarantees discussed below. Assistants and trainees do not have them either.
Legal Professional Privilege Guarantee
There are plenty of legal guarantees in regard with Legal Professional Privilege:
1. A lawyer cannot be interrogated as witness regarding the circumstances that became known to him/her in the process of the legal assistance provision. For this reason, a lawyer cannot be held criminally liable for refusing to testify or giving a deliberately false testimony.
2. A lawyer shall not testify on circumstances that became known to him/her in connection with provision of legal assistance.
3. A court decision ought to be obtained, in order to apply investigative and operational measures against a lawyer.
4. Documents seized from lawyers can be used as evidence only if these items are not included in the proceedings of the lawyers on the cases of his/her clients. Instruments of crime and items prohibited/restricted in the Russian Federation are excepted.
5. Lawyer's files cannot be seized, and lawyer's proceedings cannot be recorded on camera.
6. Assignment of the right of claim against the client without his/her consent is prohibited.
Unfortunately, in reality these guarantees do not constitute an obstacle to the violation of Legal Professional Privilege. Quite often the courts issue orders to conduct searches of lawyers with violations (for instance, they do not specify the particular items of search), so the investigative authorities seize documentation related to the clients.
It is a fact that the regulation on extent of responsibility for violation of unhindered lawyer's activities currently does not exist. Consequently, the regulations that stipulate guarantees are largely declarative in nature.
Disclosure under Legal Professional Privilege
A lawyer is obliged to abide by Legal Professional Privilege indefinitely, and only the client himself/herself may release him/her from this obligation. Moreover, such consent must be expressed in writing in the presence of a lawyer, provided that the client is acting voluntarily.
Disciplinary liability is provided for the disclosure of information constituting attorney-client privilege. Thus, an offending lawyer may receive a reprimand or a warning, and in some cases even lose his/her legal status. It is a case, for instance, if the lawyer has repeatedly violated Legal Professional Privilege. In addition, it is possible to hold a lawyer liable if damage was caused to the client as a result of his/her actions.
Nevertheless, clause 4 of Article 6 of the Code of Lawyer Professional Ethics allows defenders to disclose information constituting Legal Professional Privilege unilaterally in the following cases:
- when there is a civil dispute between the lawyer and the client; or
- disciplinary or criminal proceedings were initiated against the lawyer.
Apart from Legal Professional Privilege, the lawyer has other responsabilities. A lawyer does not have the right to:
- use the information constituting Legal Professional Privilege when working with the cases of other clients;
- disclose the details of the case to family or friends;
- use confidential information for personal benefit.
To respect Legal Professional Privilege, a lawyer shall adhere to the recommendations approved by the decision of the Board of the Federal Bar Association of Russia on November 30, 2009.
Thus, Legal Professional Privilege can be considered an integral requirement for the lawyer's activity and an attribute of the right to legal assistance guaranteed by the Constitution of the Russian Federation.
