The Principles of Confidentiality and Noninterference in Communications with Lawyers and Legal Advisers in Recent ICJ and ECHR Case Law

“Legal professional privilege,” or “attorney-client privilege,” as it is often called in domestic legal systems, includes the right of noninterference in communications between clients and their legal advisers, as well as the right of confidentiality of such communications. They are essential conditions for the legal profession and well-protected principles in national, regional, and international legal orders, which only allow for exceptional restrictions. However, recent case law of the European Court of Human Rights (ECHR) and the International Court of Justice (ICJ) have brought some interesting enlightenment about the interpretation of the exceptions under the European Convention on Human Rights (Convention) and the existence of an equivalent principle applicable to the communications held between states and their legal advisers. 

Indeed, the ECHR recently considered conformity with the Convention of the exceptions to legal professional privilege under French law in the case Versini-Campinchi et Crasnianski v. France. In a judgment issued on June 16, 2016, the ECHR declared that the judicial transcription of the telephone communications between the two applicants and their client did not violate Article 8 of the Convention (right to respect for private and family life).[1] Previously, on March 3, 2014, the ICJ order on Timor-Leste’s request for provisional measures in Questions Relating to the Seizure and Detention of Certain Documents and Data (Timor‑Leste v. Australia) recognized the “plausible” application to states of the right to benefit from protected and secret communications with their legal advisers.[2]

The Status of Legal Professional Privilege

The recognition of attorney-client privilege in many jurisdictions illustrates that it is a general principle of law within the meaning of Article 38 of the ICJ Statute. The U.S., U.K., and Australian civil and criminal procedure laws offer good examples of the protections regarding attorney-client privilege.[3] French law does as well in a large scope for consultations, communications, and correspondence.[4] Hence, these jurisdictions’ international acknowledgement of the principle did not raise any major difficulty. The need for the recognition of such a principle by supranational entities clearly emerged from the multiplication of transnational and international disputes involving communications with lawyers.

Additionally, the importance of the principle was obvious in national orders and could not be ignored. In 1982, the Court of Justice of the European Communities (now the Court of Justice of the European Union) asserted the applicability of the protection of legal confidentiality in Community law. The Court noted that the principle was generally recognized in member states and thus had to be taken into account in the interpretation of EU regulation.[5] In 2002, the arbitral tribunal ruling in the Bank for International Settlements case declared that the attorney-client privilege applies in international commercial law, including for corporate entities and with respect to international organizations.[6] For its part, the ECHR had many opportunities to recall that the exceptions to the confidentiality of such communications have to be restrictively interpreted.[7]

ECHR Case Law on Confidential Lawyer’s Communications

Possible exceptions to attorney-client privilege and also to lawyers’ duty of confidentiality have been recognized in the European legal order in well-established jurisprudence. According to the ECHR, “[l]egal professional privilege is . . . without a doubt one of the fundamental principles on which the administration of justice in a democratic society is based. It is not, however, inviolable.”[8] Exceptions are provided, for example, in relation to the lawyer’s right of expression and states’ mission to combat criminality.

The ECHR has already ruled on searches and seizures carried out at a lawyer’s office or home, on the interception of correspondence between lawyer and client, and on the search of electronic data in a law firm.[9] Legal professional privilege is protected by the European Court through the scope of the right to respect for private life: such intrusions, when established, are considered as violation of Article 8. According to the European judges, the right for private life in the sense of Article 8 includes the right to have the communications between lawyer and client protected. To be in conformity with the Convention, exceptions to the principle must have a valid legal basis, be justified by a legitimate aim (to be necessary in a democratic society), and be proportional to this aim. While exceptions to the dispositions of the Convention should be restrictively interpreted, these conditions appear to be softened in the ECHR recent decision Versini-Campichini and Crasnianski.

The Versini-Campinchi and Crasnianski v. France Judgment

Versini-Campinchi and Crasnianski concerned the extent to which the transcription of telephone communications between a client and his or her lawyer could be used and justified under the Convention.

The facts were connected to the deaths of a number of persons having eaten meat from cattle infected with bovine spongiform encephalopathy. The applicants, two French lawyers, were defending Christian Picart, the managing director of a company suspected of breaching the embargo on the importation of beef meat from the U.K., when their phone conversations were tapped in the course of a judicial investigation. Some contents of these phone communications were transcribed by the public prosecutor and transmitted to the Paris Bar, although the two applicants were not initially targeted by the judicial procedure. At the end of a disciplinary procedure carried out against them, the two lawyers were sanctioned for having breached the professional duty of confidentiality. In their request to the ECHR, the applicants argued that the use of the transcribed phone conversations in the disciplinary procedure breached legal professional privilege.

In its judgment, the Court unanimously determined that there was no violation of the Convention. The judges recognized that the transcription of phone conversations between lawyer and client could be valid, even if the individual pursued by justice was not initially targeted by the judicial procedure that justified the tapping. Such a conclusion is indeed protective of national judicial interests, but can roughly be considered as a restrictive appreciation of the conditions necessary to allow exceptions to Article 8. Furthermore, the French Criminal Procedure Code provides a clear framework for the exceptions to legal professional privilege but does not preview this exact situation.[10] The ECHR nevertheless considered that the French judges had already furnished a sufficient clarification when they specified that such an exception could be justified when the contents of the conversation gave rise to a presumption that the lawyer himself was participating in an offense, even if he was not concerned by the initial judicial procedure. To the ECHR, such interference can then be justified, with the condition that the transcription does not affect the client’s defense rights.[11] Although this last point appears essential, the decision contributed to the weakening of legal professional privilege by an extensive interpretation of the allowed exceptions.

The recent ECHR decision is then symptomatic of a general and ambivalent pattern at the ECHR: while the parameters of legal professional privilege are increasingly precise, the allowed exceptions are each time more numerous.

The ICJ’s Recognition of the Principle in Timor-Leste v. Australia

The unilateral submission in December 2013 of Questions Relating to the Seizure and Detention of Certain Documents and Data (Timor-Leste v. Australia) to the ICJ occurred in an uncommon context. The two states were already parties to an arbitral procedure regarding the validity of the Timor Sea Treaty, due to alleged espionage carried out by Australia.[12] Two days before the first hearings in The Hague, some documents, data, and correspondence relating to the pending arbitral procedure were removed from the office of an Australian lawyer working for Timor-Leste.[13] The Timorese government requested that the ICJ implement provisional measures to order that the seized material be sealed and kept in the custody of the Court, that an exhaustive list of the information concerned be officially established, and that any copy be destroyed.[14] Timor-Leste also expected some assurance from Australia that it would not intercept new communications with its legal advisers.[15]

To address this demand, the Court had to establish if Timor-Leste’s alleged right to the confidentiality of communications with its legal advisers was “at least plausible.”[16] In other words, the legal question was about the extension to states of the right already recognized for private entities and organizations in the international legal system.

The Court’s order concluded in favor of the plausibility of “the right to conduct arbitration proceedings or negotiations without interference by Australia, including the right of confidentiality of and non-interference in its communications with its legal advisers.”[17] By fifteen votes to one, Australia was also ordered not to “interfere in any way in communications between Timor-Leste and its legal advisers in connection with the pending [arbitration] between Timor-Leste and Australia, with any future bilateral negotiations concerning maritime delimitation, or with any other related procedure between the two States, including the present case before the Court.”[18]

The ICJ did not have the opportunity to pronounce a decision on the merits; the case was removed from the Court’s docket after Timor-Leste’s withdrawal, as Australia had returned the documents. However, some elements on governments’ rights were usefully identified. Firstly, none of the actors to the litigation challenged the application of the principle to states: the Australian defense was essentially based on national security as an exception to the principle, and the dissenting opinions of the judges did not discuss this point.[19] Secondly, the Court’s order of March 2014 indirectly recognized the right of states to benefit from this confidentiality by considering it “plausible.” The Court actually went further when it linked the fundamental principle to the sovereign equality of states. To the judges, “equality of the parties must be preserved when they are involved . . . in the process of settling an international dispute by peaceful means.”[20] That means that “(i)f a State is engaged in the peaceful settlement of a dispute with another State through arbitration or negotiations, it would expect to undertake these arbitration proceedings or negotiations without interference by the other party in the preparation and conduct of its case.[21] The ICJ then concluded from the right of noninterference in the procedure “that in such a situation, a State has a plausible right to the protection of its communications with counsel relating to an arbitration or to negotiations, in particular, to the protection of the correspondence between them, as well as to the protection of confidentiality of any documents and data prepared by counsel to advise that State in such a context.”[22]

In the Court’s approach, the principles of confidentiality and noninterference are not presented as a transposition of those recognized in private relations, but as a corollary of the fundamental principles stated in Article 2 of the UN Charter. As they are sovereign, states cannot be considered as “mere” clients in their relationships with lawyers. Also, the ICJ set the basis for the recognition of a general principle of international law. Hence, the extent to which it could be restricted would need clarification. How the Court would have received the Timorese argument of national security in a decision on the merits is an open question. It can be noted, however, that the third provisional measure in the order to prohibit Australia from interfering “in any way” in communications between Timor-Leste and its legal advisers does not mention any possible exceptions. In that sense, the international law principle of confidentiality in communications between states and legal advisers could be considered much less restricted that the equivalent attorney-client privilege.

Conclusion

The professional legal privilege as an evidential rule is clearly internationally recognized. Permanent tribunals such as the Court of Justice of the European Union and the ECHR have built a substantial jurisprudence about the contours and exceptions to the principle. It can be considered a general principle of law within the meaning of Article 38 of the ICJ Statute.

However, the probability that states will be internationally condemned for breaching attorney-client privilege is increasingly reduced by the allowed derogations. The recent ECHR judgment in Versini-Campinchi and Crasnianski is a symptomatic illustration of this tendency.

Furthermore, states’ obligation to respect the confidentiality of communications between other states and their legal advisers appears much more absolute. The Timor-Leste v. Australia dispute was the first opportunity for the ICJ to address this issue. Even if it did not reach the judgment on the merits, the litigation led the judges to confirm the “probable” existence of a similar principle. The details surrounding the international obligation not to interfere in these communications still need to be made more precise. It can be said at this level that both considerations of international law and aspects of national and regional law should help to clarify the principle.

About the Author: Géraldine Giraudeau is Professor of Public Law at the University of Perpignan Via Domitia, France.