Historic Declaration by UK lawyers on lawyer-client confidentiality

Senior lawyers from throughout the United Kingdom have joined forces in unprecedented fashion to restate the importance of lawyer-client confidentiality.

Advocates, barristers and solicitors in Scotland, England and Wales and Northern Ireland issued a joint statement, stating that lawyer-client confidentiality was entitled to special protection by the state.

They acknowledged the importance of the work of law enforcement and intelligence agencies in the national interest, but stated: “Such activities must operate within a legal framework which respects the fundamental rights and freedoms which characterise our constitutional democracy…the use of surveillance techniques must be attended by robust and transparent legislative, procedural and technological safeguards which are explicitly directed to protecting lawyer-client confidentiality.”

The “European Lawyers Day Declaration 2014” was jointly issued by the Law Society of Scotland, the Bar Council of England and Wales, the Bar Council of Northern Ireland, the Faculty of Advocates, the Law Society of England and Wales, and the Law Society of Northern Ireland.

The Declaration notes that it is a fundamental duty of every lawyer to preserve and protect the confidentiality of clients. It reaffirms the commitment of the professions to the rule of law, the administration of justice and the highest standards of professional conduct.

“We…recall that that the lawyer’s obligation of confidentiality serves the interests of the administration of justice as well as the client’s interest; that, as the European Court of Justice has recognised, the lawyer’s obligation of confidentiality ‘contributes towards the maintenance of the rule of law’; and that, for these reasons, the lawyer’s right and duty of confidentiality is entitled to special protection by the state,” the Declaration said.

“We affirm the importance of the work of government bodies engaged in law enforcement and national security in protecting the public and in investigating crime. Such activities must nevertheless operate within a legal framework which respects the fundamental rights and freedoms which characterise our constitutional democracy.

“If the fundamental values which we have affirmed above are not to be undermined, the use of surveillance techniques must be attended by robust and transparent legislative, procedural and technological safeguards which are explicitly directed to protecting lawyer-client confidentiality.”

James Wolffe, QC, Dean of Faculty, said: “Lawyer-client confidentiality matters to anyone who needs or might need legal representation. It is a core value of the legal profession across Europe. This unprecedented joint declaration by the bars and law societies of the United Kingdom reflects our common commitment to fundamental professional values.”

Attending on behalf of the Bar of Northern Ireland, Chairman Gerald McAlinden QC said “Even though society derives a significant benefit from properly conducted surveillance, we cannot underestimate the importance of rigorous regulation in this area. Evidence to date suggests that the standard of “close and anxious scrutiny of the exercise of surveillance powers” is not being met. I fear that in concentrating on the existence of comprehensive regulatory frameworks we may be lulled into a state where we mistake carefully defined tyranny for the primacy of the rule of law.”

EUROPEAN LAWYERS DAY DECLARATION 2014

We, the Bar Council of England & Wales, the Bar Council of Northern Ireland, the Faculty of Advocates, the Law Society of Scotland, the Law Society of England & Wales and the Law Society of Northern Ireland

United in our commitment to the rule of law and the administration of justice and to the highest standards of professional conduct

Recall:

(1) that it is a fundamental duty of every lawyer to preserve and protect the confidentiality of the lawyer’s clients;

(2) that the lawyer’s obligation of confidentiality serves the interests of the administration of justice as well as the client’s interest;

(3) that, as the European Court of Justice has recognised, the lawyer’s obligation of confidentiality “contributes towards the maintenance of the rule of law”;

(4) that, for these reasons, the lawyer’s right and duty of confidentiality is entitled to special protection by the state.

We note that the issue of surveillance has given rise to great public concern. In light of those concerns, the Council of European Bars and Law Societies has expressed concern that “a core value of the profession ... known in some countries as legal professional privilege is at serious risk, and erosion of this aspect of confidentiality will erode trust in the rule of law”.

We affirm the importance of the work of government bodies engaged in law enforcement and national security in protecting the public and in investigating crime. Such activities must nevertheless operate within a legal framework which respects the fundamental rights and freedoms which characterise our constitutional democracy. If the fundamental values which we have affirmed above are not to be undermined, the use of surveillance techniques must be attended by robust and transparent legislative, procedural and technological safeguards which are explicitly directed to protecting lawyer-client confidentiality.