Attorney-client Privilege Research Articles

Пределы уголовно-правовой защиты института адвокатской тайны в контексте противодействия преступлениям террористического характера и экстремистской направленности в УИС

The article analyzes problematic issues of criminal law protection of attorney-client privilege, which is often used by its owners contrary to the interests of society and the state in the field of countering crimes of a terrorist nature and extremist orientation. The authors reveal the relevance of the issues under consideration; explore the content of the norms governing the institution of attorney-client privilege in Russia; based on the analysis of criminal legislation, they propose measures to improve it in this area.

The Crime-Fraud Exception to the Attorney-Client Privilege: Communications That Are Not Privileged

In three previous articles, “Assessing Confidentiality in the Lawyer-Client Relationship: A Client Perspective” (2022a), “Avoiding Common Conflicts of Interest in the Lawyer-Client Relationship” (2022b), and “The Lawyer-Client Relationship: Fee Arbitration” (2022c), the authors have described various aspects of the lawyer-client relationship. In this article, the authors describe an important exception to the principle of confidentiality found in the crime-fraud doctrine which permits a court to breach lawyer-client confidentiality upon the proper showing.

Реализация социально-правовой функции адвокатом по назначению в уголовных и гражданских делах, в которых содержится государственная тайна

The article delves into the realization of the social and legal function of the appointed advocate in criminal and civil proceedings in cases involving state secrets, as well as problematic issues and liability that may occur in case of its divulgence. The relevance of the research topic is that in Russia there is an increase in the number of convictions under Article 283 of the Criminal Code of the Russian Federation – disclosure of state secrets. In addition, the article discusses theoretical issues, the relationship between attorney-client privilege and state secrets, and provides examples from judicial practice. From a certain angle, the author is convinced that it is necessary to investigate the issue of the advocate’s activity on appointment in criminal and civil cases, in which there is a state secret, in order to further develop recommendations for advocates. The formal legal method, the method of comparative analysis, synthesis, the inductive method, generalization and systematization of scientific sources on the research problem, comparative and predictive methods were used.

Possibilities of improving the activities of attorney’s assistant in the Republic of Uzbekistan

This article, based on the experience of foreign countries, discussed the main provisions relating to an assistant lawyer, the requirements for him to become an assistant lawyer, persons who cannot be assistant lawyers, and documents regarding the regulation of the activities of an assistant lawyer adopted by the Chamber of Lawyers Republic of Uzbekistan. The authors paid special attention to the inclusion of an assistant lawyer in the list of persons who cannot subsequently be questioned as witnesses under attorney-client privilege, and to the fact that the employment contract concluded with an assistant lawyer must be fixed-term.

Confidentiality of advocate activities

The article examines the principle of attorney-client privilege in the system of the principles of the Advocacy and Practice of Law, and also the possibility of using electronic technologies and artificial intelligence by an attorney when providing legal assistance to a client in the context of ensuring compliance with the principle of attorney-client privilege.
 It is proved that the principles of the advocacy are the central, leading segments of the principles of the Advocacy, but the «principles of organization and operation of the Advocacy» as a legal institution and the «principles of the Practice of Law» on which the professional activities of attorneys-at-law are based can and should be separated from each other.
 It is established that the general prerequisite for distinguishing any principle of the Practice of Law is its significance, general nature, clarity and comprehensibility. The principle of confidentiality in the practice of law is fundamental since this principle is directly enshrined in Ukrainian legislation. However, in terms of observance of the principle of confidentiality of the Practice of Law, it is required not only from the attorney but also from the client to prevent information leakage to other users when using information technologies.
 When using the capabilities of artificial intelligence in the provision of legal aid, the author recommends that a separate clause of the contract should be provided for, whether the client allows the attorney to use artificial intelligence technologies in the provision of legal aid and to what extent.
 It is concluded that along with the progress and simplification of procedures, uncontrolled use of artificial intelligence by an attorney-at-law may lead to a violation of the principle of confidentiality of the attorney’s practice of law against the will of the attorney-at-law. Under any circumstances, when using artificial intelligence technologies, an attorney-at-law is prohibited from entering any personal data of a client or any other data which may identify the client in order to avoid leakage of confidential information.

Administrative and legal regulation of attorney-client privilege

Administrative and legal regulation of attorney-client privilege

Legal Positions of the Constitutional Court of the Russian Fe­deration on the Guarantees of Protecting the Attorney-Client Privilege

The authors analyze the theoretical and practical problems of protecting the attorney-client privilege in criminal proceedings in light of the decisions of the Constitutional Court of the Russian Federation. The analysis of investigatory practice shows that violations of the attorney-client privilege are now quite a commonplace phenomenon. One of the ways of violating the attorney-client privilege widely used by the bodies of preliminary investigation is calling the attorney for interrogation, sometimes even using compelled attendance, and further interrogation. The position of the Constitutional Court of the Russian Federation is that the attorney, the defense lawyer for the suspect, or for the accused or the person who received legal assistance, can only be interrogated under certain conditions stated in Art. 56 of the Criminal Procedure Code of the Russian Federation. Although the Constitutional Court provided quite clear guidance multiple times, some law enforcers often ignore them thus violating the rights of not only the attorneys, but also their clients and trustees. The current criminal procedure law does not provide a mechanism of protecting attorney’s work and the associated attorney-client privilege, which would exclude ungrounded calls for interrogation and interrogations of attorneys. The authors present suggestions on improving this law aimed at ensuring the protection of the attorney-client privilege.

Reporting Obligations for Attorneys in Money Laundering Cases: Attorney-Client Privilege Under Pressure?

AbstractWith the publication of the Panama Papers in 2016, law firms and attorneys came under the spotlight of international anti-money laundering efforts. It became clear that attorneys, protected by the attorney-client privilege, play a significant role in concealing the origin of illicit funds and the constructing of offshore company-schemes. The public outcry prompted legislators to hold these facilitators accountable and to prevent money-laundering activities by imposing reporting obligation on them, whenever there is the suspicion of a client being involved in illicit activities. Unsurprisingly, attorney and professional associations voiced considerable opposition to these legislative efforts claiming an erosion of the attorney client privilege and nothing less than an attack on the rule of law. This article examines the attorney-client privilege from a historical, empirical, and constitutional perspective. A brief analysis of the legal frameworks in Germany and Switzerland exemplifies how reporting obligations affect legal practice and what challenges exist for attorneys. Both countries are considered global hubs for money laundering activities. The legal concepts of holding attorneys accountable in the neighboring countries differ in some respects. In conclusion, it shows that the legal professions successfully managed to widely avoid a ‘responsibilization’.

Attorney-client privilege as an element of lawyer’ legal consciousness

The aim of the work is a systematic analysis of such an institution as the attorney-client privilege. The article analyzes the legal basis of the attorney-client privilege. In addition, gaps and contradictions in terms of securing the legal status of the attorney-client privilege are identified. Particular attention is paid to the characteristics of the attorney-client privilege as an element and manifestation of a lawyer's legal consciousness. Moreover, a significant place is given to the analysis of the limits of the attorney-client privilege.

Unlocking the mystery of internal investigation: the use of information from private internal investigations in the Polish criminal process

This study aims to present the problems associated with the use of information from private internal investigation in a criminal process. The paper first presents the essence, functions, limits, and purposes of internal investigations, taking into account legal restrictions, including constitutional ones. Further in the paper, the authors critically analyze the possibility of using materials obtained and produced in internal investigations in criminal proceedings. A significant number of internal investigations are conducted by attorneys. Therefore, the paper also evaluates the permissibility of abolishing the attorney-client privilege and of the court or the law enforcement agencies obtaining the materials produced by an attorney in the course of an internal investigation or questioning of the lawyer. Having an attorney conduct an internal investigation improves the security of the information produced in the course of the internal investigation, as the materials are covered by the attorney-client privilege. However, one should bear in mind that in Poland this is not an absolute protection. The considerations led the authors to the conclusion that internal investigations are a valuable tool of the system for preventing irregularities in corporations and an important source of materials that can be used in criminal proceedings.

Attorney-client privilege in Polish law and legal practice – on legal gaps and some controversial matters

This article presents the legal framework of attorney-client privilege in Poland, indicating situations when an attorney is entitled or obliged to reveal information covered, in principle, by professional secrecy, as well as the consequences of an attorney’s erroneous evaluation in this regard. The author refers to provisions which require legal amendment or functional interpretation in order to guarantee respect for attorney-client privilege in legal proceedings, pointing out also controversial interpretations in court practice of what, in principle, are clear legal provisions relating to attorney duties. Finally, the poor perspective for changes in relevant field and the reasons for this are explained.

Attorney–client privilege: theory and implementation practice

The article defines the approaches to the nature of advocacy and to the subject and nature of attorney-client privilege in terms of the problems of modern legal regulation of the criminal process and the status of a lawyer.

Joint Representations and the Attorney-Client Privilege

Joint Representations and the Attorney-Client Privilege

The Case for Downsizing the Corporate Attorney-Client Privilege

The Case for Downsizing the Corporate Attorney-Client Privilege

Peculiarities of Investigative Proceedings against Lawyers

The paper deals with the peculiarities of investigative proceedings against lawyers that are regulated by the legislation of the Russian Federation. The author proposed to consider all actions that restrict the rights of a lawyer directly in the course of an investigative action, and not as a result of an investigative action, as investigative actions carried out «in relation to lawyers». At the same time, these actions can be carried out with the direct participation of a lawyer, as well as without him. The main purpose of the legislative establishment of the peculiarities of the production of investigative actions is to create a system of guarantees against attorney-client privilege violation, to prevent the use of information provided by the defendant to the lawyer in the framework of special trust relationships that develop in the provision of legal assistance in proving. The peculiarities provided for by law do not apply to investigative actions performed in connection with the commission of a criminal act by a lawyer. The paper scrutinizes the content of the features of conducting investigative actions: the range of actions, the production of which requires judicial permission, is determined; the rights of such a participant in an investigative action as an authorized representative of the bar association are disclosed; the concept of a lawyer’s dossier (lawyer’s proceedings) is detailed; the procedure for seizing the documents included in it is investigated.

Assessing Confidentiality in the Lawyer-Client Relationship: A Client Perspective

This article will provide information on issues relating to the attorney-client relationship and the attorney-client privilege, the duty of confidentiality, the crime- fraud exception, the work product doctrine, and other exceptions to the general duty of confidentiality existing in the lawyer-client relationship. The article is based on an analysis of decisional cases and selected commentaries found in law reviews and writings of prominent legal practioners.

Fundamental Criminal Procedural Obligation of the Lawyer: Attorney-Client Privilege (Confidentiality)

The spectacular development of the market of legal services determined the development of some rules for the protection of the professional body of lawyers, but also of their clientele, starting from the definition, redefinition and updating of some fundamental principles regarding the way of conducting the lawyer's activity, among the most important being the obligation to preserve professional confidentiality. In the criminal process, this is the fundamental institution for guaranteeing the right of defense and the right to a fair trial of the accused. This article aims to analyze the dual nature of this principle that governs the activity of lawyers: that of protecting the attorney as a professional and that of guaranteeing the procedural rights of the client.

Communication Lake

Communication Lake

SOME FEATURES OF MAINTAINING ATTORNEY-CLIENT PRIVILEGE IN MODERN RUSSIAN LEGAL REALITY

The institution of attorney-client privilege, designed to advance the constitutional provision relating to the preservation of privacy, is undergoing major changes in connection with the development of information technologies. Lawyers and members of lawyers' associations are actively using computerized systems, databases to facilitate the provision of qualified legal assistance. It is information containing data relating to attorney-client privilege that is of interest to persons capable of gaining access to other people's computers. Purpose: to analyze the institution of attorney-client privilege, as well as the status of persons who have access to it. In addition, it is necessary to classify the sources of attorney-client privilege, as well as to study the mechanism of their action. Methods: in the course of writing the work, the dialectical method, analysis, synthesis, comparative legal, description method and legal modeling method are used. Results: the authors investigate the problem of the institution of attorney-client privilege, the mechanisms of its preservation and provision. Some contradictions are revealed between the legislative definition of the institution of attorney-client privilege and the definition popular in the lawyers' community. In addition, the role of members of lawyers' associations with access to attorney-client privilege is studied. A classification of sources of attorney-client privilege is made, and methods of modernization of the said institute are proposed, which is expressed in approval or criticism of the positions of some authors regarding the problem of preservation of information containing attorney-client privilege.

Focusing on the primary purpose: Protecting the attorney–client privilege and work product doctrine in incident response

Organisations responding to cyber security incidents must manage their incident response efforts while maintaining two critical legal protections: the attorney–client privilege and the work product doctrine. This paper analyses how the attorney–client privilege and the work product doctrine, when properly maintained, prevent information regarding an organisation’s thoughts and discussions from being disclosed or used in subsequent proceedings. It discusses how recent judicial decisions analysing the application of these two doctrines have emphasised the importance of seemingly minor details that may be overlooked during incident response efforts that can have significant consequences in subsequent legal actions when asserting protections. In particular, courts will focus on the stated purpose for any step in the incident response process (eg business versus legal), and any discrepancies between the stated purpose and conduct can have disastrous effects on future claims of protection in legal proceedings. This paper puts forward that organisations should craft incident response plans with the maintenance of these protections in mind. Practical steps organisations can take include carefully scrutinising the language in retainer agreements, involving in-house or outside counsel at the earliest opportunity, limiting the disclosure of privileged materials, and exercising caution when documenting during incident response. After-the-fact attempts to shield the results of any investigation from opposing parties in litigation are rarely successful, so organisations should take affirmative steps to ensure the vitality of these two critical legal protections from the earliest stages of incident response, which start with the planning and preparation.