Lawyer’s confidentiality

Confidentiality is the central value of the legal profession and a cornerstone of the rule of law. No lawyer can evade the increasing division of labor and the use of modern technology, and this affects the processes in the firm’s business significantly. The fact that craftsmen work in the law firm is accepted as a matter of course. The involvement of other third parties is inevitable given the technical complexity. Nobody expects their complete mastery from the lawyer.

The clients know about the security risks of modern technology and communication and the risks to confidentiality through their smartphones or laptops. In many areas, the user cannot control who is involved in what way, for example, which way an e-mail takes or through which devices of companies a telephone connection is switched. Nevertheless, modern means of communication cannot be avoided, on the contrary, their use is assumed. 

Here, a lawyer moves in a gray area. He is convinced in a particular case that his behavior and the inevitable involvement of third parties are legally permissible, but he bears the risk to fight without any guidance in case of complaints. This is unacceptable in the long term when one thinks of potential consequences. There were several failed attempts to clarify and eliminate this legal uncertainty using legal regulations. 

It places the protection of confidentiality in the systematic context and refers for the first time to the importance of the consent of the client. As a recognized legal principle, the consent of the client may exclude a breach of confidentiality. Also recognized is the further breakthrough of confidentiality obligations in the exercise of superior interests and legal requirements. For the involvement of third parties, one likes to rely on the alleged consent of the client. However, the concept only applies if there was no opportunity to ask the client. But who does the lawyer ask if the server crashes in the evening? And would he have to reach all clients? It should be remembered that a client would not expect the request for consent at all and consider it superfluous. Because he does not expect from his own experience that the lawyer himself repairs the server.

The standard does not release the lawyer from responsibility. It is deliberately not a casualty settlement to clarify which law firm procedures and organization are permissible. Such a catalog would soon be outdated because our technical environment is changing too fast. What is socially acceptable, each lawyer must judge for themselves in a specific case. And even if a framework is opened by profession, the lawyer does not have to exhaust it.

The declaration of confidentiality of the third party should also extend to obliging its employees to secrecy. The law firm has to keep up with this, for example through questions. A special disclaimer is superfluous if it already exists for other reasons. The immense problem of systematically intercepting and seizing communications by unauthorized persons, which has now become known, has not overtaken the regulation’s need for regulation. This attack on the lawyer secrecy not only shatters the freedom of the lawyer’s communication with clients but also undermines a basic requirement of the democratic constitutional state.