The Doctrine of Lawyer’s Professional Secrecy: Nature, Standards of Protection, and Issues of Application in Civil Proceedings

The nature and purpose of advocate’s professional secrecy

The institution of an advocate’s professional secrecy is one of the essential prerequisites for effectively exercising the right to defence and maintaining a relationship of trust between an advocate and their client. This trust can only be established if the client is confident that any information disclosed to the advocate will remain confidential and will not be shared with third parties (André and Others v. France, 2008). This expectation of confidentiality is fundamental to an advocate’s professional activity, enabling clients to openly and freely disclose all relevant circumstances, including sensitive, uncomfortable or potentially detrimental ones. Only with full knowledge of the factual circumstances can an advocate properly assess the situation, choose an appropriate defence strategy and represent the client diligently and independently. For this reason, professional secrecy is regarded not merely as a professional privilege, but as a core duty of the legal profession and an essential element of the rule of law. The Court of Justice of the European Union has recognised legal professional privilege as one of the general principles of EU law, derived from the common values and constitutional traditions of the Member States (AM & S Europe v. Commission, 1982).

Professional secrecy encompasses all information communicated by the client in connection with legal representation, including sensitive information that could potentially be detrimental to the client. The European Court of Human Rights (hereafter ‘the ECtHR’) has emphasised that it is clearly in the public interest for anyone who wishes to consult a lawyer to be free to do so in a way that facilitates open and unrestricted communication. For this reason, the relationship between a lawyer and their client is, in principle, privileged (Altay v. Turkey, 2019). A lawyer must also act loyally towards their client. This protection is necessary not only to safeguard the client’s individual interests, but also to ensure the proper administration of justice. Only by having full access to relevant information can a lawyer effectively defend their client’s rights and legitimate interests.

The institution of professional secrecy is closely linked to the advocate’s duties of independence and loyalty towards the client. Historically, confidentiality originated from the ethical and honour-based obligations of advocates not to betray information entrusted to them. Over time, this concept evolved into a modern legal principle focused primarily on protecting the client’s interests rather than the lawyer’s personal privilege. Consequently, contemporary legal doctrine recognises that confidentiality belongs to the client and may only be waived by the client.

In the practice of both the European Court of Human Rights (Altay v. Turkey, 2019; Michaud v. France, 2012; Niemietz v. Germany, 1992) and the Court of Justice of the European Union (Orde van Vlaamse Balies, IG, Belgian Association of Tax Lawyers v. Vlaamse Regering, 2022), it is also recognised that lawyer–client privilege covers all communication between a lawyer and their client, including legal advice, and is not limited solely to the proceedings of a case in court.

The purpose of advocate’s professional secrecy extends beyond the protection of individual rights. Advocates fulfil a dual role in democratic societies: they defend the interests of their clients while also contributing to the implementation of justice and the protection of the rule of law. Therefore, professional secrecy serves both private and public interests by safeguarding trust in the legal profession, ensuring effective legal defence and supporting the proper functioning of the justice system.

Standards for the protection of a lawyer’s professional secrecy in the case law of the European Court of Human Rights and the Court of Justice of the European Union

Having regard to their essential function in a democratic society—namely, the representation of litigants and the safeguarding of public confidence in the judiciary—advocates enjoy a specific and elevated status under the Convention, placing them at the heart of the administration of justice. In performing their professional duties, advocates contribute not only to the proper administration of justice but also to the maintenance of public confidence therein (Rodriguez Ravelo v. Spain, 2016).

This particular status entails, inter alia, enhanced protection of the confidentiality of lawyer–client communications under Article 8 of the Convention, as well as guarantees related to the right to a fair trial under Article 6.

Article 8 provides reinforced protection for all communications between an advocate and their client (Denysyuk and Others v. Ukraine, 2025), reflecting the pivotal role of advocates in ensuring both the right to a fair trial and public trust in the judicial process. This protection extends to all forms of communication, including letters, telephone or oral conversations and electronic correspondence (Klaus Müller v. Germany, 2020). The Court has emphasised that no distinction should be made between different types of lawyer–client communications based on their content or purpose, recognising the inherent difficulty of drawing a clear line between correspondence relating directly to contemplated or ongoing litigation and correspondence of a more general advisory nature (Altay v. Turkey, 2019). This approach underscores the principle that all communications with an advocate must be afforded robust protection to safeguard the client’s rights and the integrity of the legal process.

According to Article 7 of the Charter, the guaranteed rights correspond to those guaranteed under Article 8 of the ECHR. Pursuant to Article 52(3) of the Charter, the Court of Justice of the European Union, when interpreting Articles 7 and 47 of the Charter, the Court of Justice of the European Union must take into account the minimum level of protection enshrined in Articles 8 and 6 of the ECHR, as interpreted by the European Court of Human Rights (Orde van Vlaamse Balies, IG, Belgian Association of Tax Lawyers v. Vlaamse Regering, 2022) For the purposes of applying Article 7 of the Charter, the protection of professional secrecy covers more than just a client’s defence in court; it also protects the relationship between a lawyer and a client outside the context of judicial proceedings (although such protection is applied more strictly in relation to this task). Article 7 of the Charter ensures the confidentiality of legal advice in terms of both its content and its existence (Orde van Vlaamse Balies, IG, Belgian Association of Tax Lawyers v Vlaamse Regering, 2022).

Importantly, for the purposes of Article 8, it is not decisive whether, at the time of a particular communication, the advocate had entered into a formal legal representation agreement with the client (Denysyuk and Others v. Ukraine, 2025). Advocates who do not represent clients in court as members of the Bar, but instead practice primarily as legal advisers, are nonetheless entitled to certain procedural safeguards in their interactions with clients. These protections help ensure the confidentiality and integrity of the lawyer–client relationship, even where the advocate’s role is predominantly advisory rather than litigious (Bersheda and Rybolovlev v. Monaco, 2024; Kruglov and Others v. Russia, 2020).

When assessing the lawyer–client relationship, the Court of Justice of the European Union applies an autonomous criterion of independence. This may result in the non-application of protection, regardless of how a lawyer’s status is defined under national law. A lawyer is considered ‘independent’ only if they are not employed by the client, act as an external legal adviser and are bound by professional liability and ethical obligations (PJ v. European Union Intellectual Property Office (EUIPO), Erdmann & Rossi GmbH and PC v. European Union Intellectual Property Office (EUIPO), Erdmann & Rossi GmbH, 2022). Accordingly, under the Charter, protection does not extend to communications involving in-house lawyers, irrespective of their status under national law (Akzo Nobel Chemicals and Akcros Chemicals v. Commission, 2010a).

At the same time, the protection of professional secrecy forms an integral part of the rights of the defence under Article 6 of the Convention. It is closely linked to the client’s right not to incriminate themselves, which presupposes that the authorities must establish their case without relying on evidence obtained through coercion, oppression, or any methods that contravene the will of the person charged (Kırdök and Others v. Turkey, 2019). This principle underscores the essential role of advocates in safeguarding both the procedural rights of their clients and the integrity of the judicial process.

When considering the relationship between the confidentiality of correspondence between an advocate and their client, and the right to a fair trial, it becomes clear that the right to a fair trial is inherently connected to judicial proceedings. „If an advocate were required to cooperate with public authorities and disclose information obtained in the course of legal consultations during judicial proceedings or in preparation for them, they would be unable to properly perform their functions of advising, defending and representing the client, and the latter would consequently be deprived of the rights guaranteed under Article 6 of the ECHR“ (Ordre des barreaux francophones et germanophone and Others, 2007). Therefore, under Article 47 of the Charter and Article 6 of the ECHR, a violation may be established if a person is unable to defend their rights effectively in court, or if the confidentiality of consultations intended to support the right to defence is not ensured.

Although professional secrecy constitutes a cornerstone of the administration of justice in a democratic society, it is not absolute or beyond limitation. The protection afforded to confidential communications between an advocate and their client is subject to certain exceptions where overriding public or legal interests justify interference (Michaud v. France, 2012). This nuanced approach reflects the need to balance the essential role of professional secrecy in ensuring effective legal representation with the legitimate requirements of the justice system, including the investigation and prevention of serious crime.

In assessing an alleged violation of Article 8, the Court systematically examines whether any interference with the confidentiality of lawyer–client communications is proportionate to the legitimate aim pursued. In several cases, the Court has found a breach of Article 8 on account of the quality or clarity of the law (Vasil Vasilev v. Bulgaria, 2022) or, more broadly, on the basis that the interference was not ‘in accordance with the law’ (Denysyuk and Others v. Ukraine, 2025; Särgava v. Estonia, 2021). However, in most instances, the Court’s principal analysis centres on the proportionality of the measure.

In evaluating proportionality, the Court takes into account a range of factors, including: the seriousness of the offence under investigation; the authorities’ suspicions regarding the advocate’s involvement; the existence of prior or subsequent judicial authorisation (warrant) and the circumstances in which it was issued; the other evidence available at the time; the content and scope of the warrant; the manner in which any search, inspection, or seizure was conducted, including whether independent observers were present and whether a data processing protocol was applied; and the potential repercussions for the professional work and reputation of the advocate affected by the measure (Kruglov and Others v. Russia, 2020; Sérvulo & Associados – Sociedade de Advogados, RL and Others v. Portugal, 2015).

This approach reflects the Court’s careful balancing of the competing interests at stake: safeguarding the essential confidentiality of the advocate–client relationship, while allowing for legitimate investigative needs, always ensuring that any interference is strictly necessary and proportionate in a democratic society.

The right enshrined in Article 7 of the Charter is not absolute either, and must be considered in the context of its societal purpose. It may be subject to restrictions provided by law that do not alter its essence and that are necessary, based on the principle of proportionality, to achieve objectives recognised by the EU as being of general interest or to protect the rights and freedoms of others (Orde van Vlaamse Balies, IG, Belgian Association of Tax Lawyers v. Vlaamse Regering, 2022; Privacy International, 2020).

However, the protection of a lawyer’s professional secrecy under both Article 8 of the ECHR and Article 7 of the Charter does not extend to all of a lawyer’s activities. There are instances in which a lawyer may act outside their 2018 usual role, for example when they are neither representing a client nor providing legal advice. In such cases, such as when acting as an intermediary or performing legal tasks without the necessary lawyer–client relationship, the lawyer’s activities are treated similarly to those of other professionals. The nature of these activities does not justify the protection of professional secrecy, which is primarily linked to a lawyer’s specific societal function of enabling them to perform their core task of defending the rights of legal subjects (Orde van Vlaamse Balies, IG, Belgian Association of Tax Lawyers v Vlaamse Regering, 2022).

Distinguishing between a lawyer’s activities that fall within their usual professional remit and those that do not presents significant theoretical and practical challenges. This distinction is particularly important when determining the extent to which professional secrecy applies.

In this context, it is essential to maintain an appropriate balance. On the one hand, an overly broad interpretation of a lawyer’s professional secrecy could result in the unjustified extension of protection to cases where the lawyer is acting not as a legal services provider, but as a professional in other fields, such as finance, business or intermediary services. This would mean using the professional secrecy framework outside its intended purpose, which would distort its essence and create potential for abuse.

Conversely, an overly narrow definition of professional secrecy could disproportionately restrict the confidentiality of the lawyer–client relationship. This could lead to unacceptable interference in this relationship, which is an essential element of the right to defence and the right to a fair trial. Such interference would undermine the client’s trust in the lawyer and could negatively affect the effectiveness of the justice system.

Accordingly, the limits of professional secrecy must be defined to ensure the effective protection of clients’ rights while preventing this protection from being extended beyond the scope of a lawyer’s professional activities.

In conclusion, advocate–client confidentiality is not merely a professional obligation but a fundamental guarantee of the right to defence, a fair trial and the proper administration of justice. Its protection covers all communications between a lawyer and a client, including both their content and existence. Although this protection is not absolute, any restrictions must be prescribed by law, pursue a legitimate aim, and remain proportionate and necessary in a democratic society.

The confidentiality of lawyer–client communications is firmly protected under Articles 6 and 8 of the European Convention on Human Rights and Articles 7 and 47 of the Charter of Fundamental Rights of the European Union. This protection applies broadly to legal advice and representation, ensuring public confidence in the legal profession and the justice system.

However, this protection is not absolute. Its scope is limited both functionally and substantively. On the one hand, it applies only where the advocate acts within their core professional role of providing legal advice or representation; activities falling outside this role may not benefit from the same level of protection. On the other hand, interferences with confidentiality may be justified where they are prescribed by law, pursue a legitimate aim and satisfy the requirement of proportionality.

Accordingly, the legal framework reflects a careful balance: it ensures a high level of protection for professional secrecy as a cornerstone of effective legal defence, while at the same time allowing for justified limitations in the interests of justice and broader public concerns.

The use of a lawyer’s professional secrecy as evidence in civil proceedings: practice in European Countries and Lithuania

A lawyer’s professional secrecy is a fundamental element of the rule of law and the administration of justice, ensuring confidential communication between a lawyer and a client as well as the client’s right to effective defence. Its protection strengthens trust in the legal profession and supports the proper functioning of the justice system. However, in civil proceedings, the relationship between professional secrecy and the duty to disclose evidence raises complex legal and practical issues. Consistent case law recognises that ensuring these confidentiality guarantees comes at a cost: some evidence that may be relevant to the case will not be accessible to the court during the dispute resolution process (Newbold, 1990, p. 472).

Civil proceedings are based on the parties’ duty to present relevant evidence in order to ensure a comprehensive examination of the case. However, a lawyer’s professional secrecy restricts the disclosure of certain information, creating tension between the principles of effective adjudication, adversarial procedure and confidentiality. This raises the question of to what extent information held by a lawyer may be used as evidence in civil proceedings and what safeguards are necessary to balance these competing interests.

The approach of European countries to this issue is not uniform. Different jurisdictions adopt different models regarding the scope of a lawyer’s professional secrecy, the grounds for limiting it and the rules of evidence. These models are influenced by both national legal traditions and international human rights standards. This section therefore aims to analyse the particularities of using a lawyer’s professional secrecy as a potential source of evidence in civil proceedings, discuss the practices of European countries and evaluate Lithuanian legal regulations. To achieve these objectives, it is first necessary to examine the legal frameworks and constitutional jurisprudence of individual European states, which reveal the limits of professional secrecy protection and its exceptions.

The Belgian legal system is one example where the content and limits of a lawyer’s professional secrecy have been elaborated at the level of constitutional review. In its decision on 14 June 2006, the Belgian Constitutional Court identified two exceptions to the protection of professional secrecy. The necessity or greater need exception applies when a lawyer is required to reveal privileged information. Additionally, lawyer–client secrecy may be waived due to an overriding interest (Professional Secrecy of Lawyers in Europe, 2013, p. 58). This is assessed in situations involving a serious, imminent threat to human life or health. This may occur, for instance, when a lawyer becomes aware of a planned crime, or when they learn about urgent medical assistance required for children in the context of divorce proceedings.

In Belgium, a lawyer may disclose information protected by lawyer–client secrecy if it is necessary to defend themselves against a claim brought by the client, and if such disclosure is required to prove their innocence (Professional Secrecy of Lawyers in Europe, 2013, p. 60). This exception is justified as a measure to ensure the lawyer’s right to a fair trial. In Bulgaria, lawyer–client professional secrecy is also not absolute. A list of exceptions is provided, which cannot be interpreted broadly. Under the Anti-Money Laundering Act and the Measures against the Financing of Terrorism Act, lawyers are required to report suspicious transactions or activities (Professional Secrecy of Lawyers in Europe, 2013, p. 79).

In Cyprus, exceptions to a lawyer’s professional secrecy are applied quite broadly. According to Article 15 of the Constitution of Cyprus, the protection of confidentiality is not absolute—it may be limited for higher values. These include the security of the Republic, the protection of the constitutional order, public safety and order, safeguarding public health and protecting the rights and freedoms of others as guaranteed by the Constitution (Professional Secrecy of Lawyers in Europe, 2013, p. 93). Therefore, a lawyer’s professional secrecy in Cyprus may be disclosed when necessary to protect these fundamental constitutional values.

In France, the duty of confidentiality arising from a lawyer’s professional secrecy is not absolute either. It does not apply when the lawyer and their client become opposing parties in subsequent proceedings, nor when disclosure is necessary to prevent a crime or protect minors (Jansen, 2022, p. 200). The French Supreme Court has ruled that this duty is a matter of public policy and should generally be observed in and out of court (Jansen, 2022, p. 200). If a party to a case unlawfully obtains information constituting a lawyer’s professional secrecy from the opposing party, the court must recognise it as inadmissible evidence in the proceedings (Jansen, 2022, p. 201).

In Italy, under Article 28(4) of the Codice Deontologico Forense, a lawyer may derogate from the duty of professional secrecy where disclosure is necessary for the conduct of the defence, to prevent the commission of a particularly serious offence, to establish factual circumstances in a dispute between the lawyer and the client or assisted party, or in disciplinary proceedings. In all cases, disclosure must be limited to what is strictly necessary for the protected purpose (Consiglio Nazionale Forense 2014).

In Germany, a lawyer’s professional secrecy is also limited in judicial proceedings. Such information is considered admissible evidence if it is necessary for the lawyer to defend themselves against allegations of misconduct by their client in subsequent proceedings, or if the client consents to the disclosure of this information (Jansen, 2022, p. 205). Similarly, in the Netherlands, the duty of confidentiality arising from a lawyer’s professional secrecy may be lifted based on various statutory provisions, such as those related to anti-money laundering. It should be noted that the money-laundering exception derives from the EU legal framework, in particular Directive (EU) 2015/849 and Regulation (EU) 2024/1624. Furthermore, a lawyer may be relieved of their obligation to maintain confidentiality if disclosure is necessary to prevent their client from committing a serious crime or in similar situations (Jansen, 2022, p. 210).

According to case law from the European Court of Human Rights, the application of privilege requires a two-step analysis. Firstly, it must be determined whether the privilege is granted under national law. Secondly, even if national law does not recognise the privilege, the court must assess whether the compulsory disclosure of documents or information would violate the respondent’s right to a fair trial under Article 6 of the ECHR. If a violation is likely, enforcing such a procedure to obtain a judgement or impose a sanction may itself constitute a breach of Article 6, even if national law does not provide for the privilege (Hollander, 2021, p. 382).

Based on the legal frameworks and judicial practices of other countries, there are specific situations in which lawyers are permitted to disclose professional secrets, and this information can be used as evidence in proceedings. This raises the question of whether Lithuanian law allows a lawyer to disclose professional secrecy under certain circumstances.

According to the Lithuanian Law on the Bar, using information that constitutes a lawyer’s professional secrecy as evidence is prohibited. A lawyer is immune from being examined as a witness regarding knowledge of professional secrecy (Civil Procedure Code, Article 189(2)(1); Law on the Bar, Article 46(1)), the disclosure, obtaining, or use of information constituting a lawyer’s professional secrecy are prohibited under Article 46(5) of the Law on the Bar. Read together, these provisions indicate that the Law on the Bar does not establish statutory exceptions permitting the disclosure or use of information covered by professional secrecy as evidence during judicial proceedings.

The Law on the Bar establishes client confidentiality as a fundamental principle of an advocate’s professional activity (Article 5(4)) and imposes a duty on advocates to safeguard professional secrecy and not disclose it (Article 39(3)). At the same time, Article 39(1)(1) of the Law on the Bar requires advocates to comply with the Lithuanian Code of Ethics for Lawyers.

Article 8 of the Lithuanian Code of Ethics for Lawyers establishes limited exceptions to the duty of professional secrecy, specifying circumstances in which a lawyer may disclose confidential information without the client’s consent. These exceptions only arise in extraordinary situations, such as when disclosure is strictly necessary to preserve human life, to protect the rights and legitimate interests of the client, the client’s heir or legal successor, or to defend the advocate’s own violated rights in a dispute with the client, in the latter case only to the extent necessary for the proper resolution of the dispute.

The Lithuanian Code of Ethics for Lawyers is a publicly accessible professional regulatory instrument adopted by the Lithuanian Bar and governing the ethical duties and professional conduct of advocates. It is therefore not an unpublished internal document, but a publicly available instrument applicable to members of the legal profession. However, it is not a law enacted by the legislature and does not have the same normative status as the Law on the Bar.

The coexistence of the statutory prohibition established in Article 46(5) of the Law on the Bar and the exceptions established in Article 8 of the Code of Ethics for Lawyers creates a legal uncertainty concerning the scope and legal effect of these exceptions (Maculevičienė, 2026, p. 107). On the one hand, the Law on the Bar establishes a general prohibition on the disclosure and use of information constituting professional secrecy and does not itself provide for statutory exceptions. On the other hand, the Code of Ethics for Lawyers permits disclosure without the client’s consent in certain strictly defined circumstances. As a professional regulatory instrument, however, the Code of Ethics for Lawyers cannot independently amend, override, or create exceptions to a statutory prohibition established by the Law on the Bar.

Consequently, the exceptions provided for in Article 8 of the Code of Ethics for Lawyers do not provide the same level of legal certainty as statutory exceptions would. This is particularly significant where the disclosure of professional secrecy and the use of such information as evidence in judicial proceedings are concerned. Legislation must comply with the principle of systematicity, meaning that a professional regulatory instrument implementing statutory provisions cannot amend the law itself or establish rules that conflict with statutory provisions. Therefore, to ensure the legality, clarity and predictability of the regulation of advocate’s professional secrecy, the exceptions currently established in Article 8 of the Code of Ethics for Lawyers should be incorporated directly into Article 46(5) of the Law on the Bar.

Such an amendment would provide a clear statutory basis for the limited disclosure of professional secrecy without the client’s consent, while ensuring that the exceptions remain narrowly defined and subject to the protection of the client’s legitimate interests. In summary, the regulation of lawyer professional secrecy in many European jurisdictions is not absolute, as clearly defined statutory exceptions may permit the disclosure or use of protected information as evidence. In comparison, the Lithuanian legal framework raises concerns regarding the proportionality and legal certainty of the current regulation. The exceptions currently established in Article 8 of the Lithuanian Code of Ethics for Lawyers correspond, in substance, to exceptions recognised in other European jurisdictions. Therefore, these exceptions should be incorporated directly into Article 46(5) of the Law on the Bar, providing a clear statutory basis for the limited disclosure and use of professional secrecy while safeguarding the client’s legitimate interests.