Searches and seizure of documents at a lawyer’s office
February 2016 | SPECIAL REPORT: CORPORATE FRAUD & CORRUPTION
Financier Worldwide Magazine
The Fifth Section of the European Court of Human Rights has stated in its judgment of 24 July 2008, the case of André and another vs. France that “searches and seizures at the premises of a lawyer undoubtedly breach professional secrecy, which is the basis of the relationship of trust existing between a lawyer and his client. Furthermore, the safeguarding of professional secrecy is in particular the corollary of the right of a lawyer’s client not to incriminate himself, which presupposes that the authorities seek to prove their case without resorting to evidence obtained through methods of coercion or oppression in defiance of the will of the ‘person charged’”.
Accordingly, when searches and seizure of documents are carried out at a lawyer´s office, under the umbrella of such professional secrecy, lawyers can refuse to provide to the government authorities any document related to clients that are protected by such professional secrecy to guarantee their clients’ right to a fair defence and the protection of documents that may contain any kind of legal advice or information necessary for the preparation of their clients´ defence.
This professional secrecy covers all information disclosed by the client and all circumstances associated therewith, in addition to any information shared on a confidential basis with other lawyers, so any document created on the basis of such situations would be regarded as ‘privileged’. However, there are exceptions where professional secrecy does not apply: (i) when the lawyer is aware that the client intends to commit a crime in the future; (ii) when keeping the secret may lead to the conviction of an innocent party; (iii) when the lawyer needs to defend himself against accusations of his client; and (iv) when the disclosure of the secret is to the benefit of the client.
In any event, since there is no general clear legal framework regulating attorney-client privilege, the right to refuse to provide a particular document will be assessed on a case-by-case basis and will vary depending on the authority carrying out the investigation, the matter covered by the investigation, the content of the documents in which it is endeavoured to benefit from the legal privilege and the parties who have been involved in the preparation of the document. In the event that the lawyer is eventually forced to produce the document protected under professional secrecy, once he has already done this, he can claim the secret nature of the document in order to declare such a document invalid and null and void.
As with any other constitutional right, the client’s right to a fair defence must be appraised in conjunction with other constitutional rights that may conflict therewith and must be resolved in a proportional manner.
For this reason (and given that “the persecution of members of the legal profession strike at the very heart of the Convention system” and that “an encroachment on professional secrecy may have repercussions for the proper administration of justice and hence for the rights guaranteed by Article 6 of the Convention” according to the judgment of 5 July 2012, case of Golovan vs. Ukraine), the case law of the European Court of Human Rights has held that the domestic law must provide appropriate safeguards for the supervision of the search by an independent observer capable of preventing arbitrary interference with the work of a lawyer.
This independent observer should have requisite legal qualification in order to effectively participate in the procedure, should be also bound by the lawyer-client privilege to guarantee the protection of the privileged material and the rights of the third persons, and should also be vested with requisite powers to be able to prevent, in the course of the sifting procedure, any possible interference with the lawyer’s professional secrecy.
More recently, the Strasbourg Court has once again ruled on such a matter in its judgement of 3 July 2013 in the case of Robathin vs. Austria, in which the search was carried out in the presence of the applicant, his defence counsel and a representative of the Vienna Bar Association. In that case the Court concluded that there was a violation of Article 8 of the European Convention of Human Rights, despite the presence of the independent observer, since the Review Chamber gave only very brief and rather general reasons when authorising the search of all the electronic data from the applicant’s law office. In particular, it did not address the question whether it would be sufficient to search only those discs which contained data relating to investigated clients.
In conclusion, when it comes to searches and seizure of documents at a lawyer´s office, at least from the perspective of the case law of the European Court of Human Rights, the following should be taken into account: (i) whether the search was based on a warrant issued by a judge and based on reasonable suspicion; (ii) whether the scope of the warrant was reasonably limited; and (iii) whether the search was carried out in the presence of an independent observer in order to ensure that materials subject to professional secrecy were not remove.
Mar de Pedraza and Cristina de Andrés are partners at De Pedraza Abogados. Ms de Pedraza can be contacted on +34 679 52 32 23 or by email: firstname.lastname@example.org. Ms de Andrés can be contacted on + 34 687 93 57 89 or by email: email@example.com.
© Financier Worldwide
Mar de Pedraza and Cristina de Andrés
De Pedraza Abogados