Attorney-client privilege (History and aim – constitutional view)

Abstract

The basis of the attorney-client privilege is the duty of a lawyer to maintain the confidentiality of all facts about which he has learned in relation to the exercise of the legal profession. The content of the institution of attorney-client privilege must be interpreted in light of the purpose it should serve. The principle of attorney-client privilege is not absolute. On the one hand, the duty of attorney’s confidentiality is a guarantee of a confidential relation between the client and the attorney. It enables attorneys to provide the protection of the client’s constitutional rights stemming from the right to a fair trial or requirements of the rule of law. Therefore, it cannot be perceived as the privilege of an attorney, but more as the right of the client. Moreover, in no case shall the institution of confidentiality serve as a protective unit for committing criminal acts. At the same time, however, insensitive breaches of the institution of attorney-client privilege may constitute gross violations of constitutional rights, such as the rights of defence, the right to protection of private life, or right of free exercise of a profession. The case law of the European Court of Human Rights, as well as, the case law of the Constitutional Court of the Czech Republic confirm the mentioned postulates.