Breach of privilege

The case of the wire-tapping of former French president Nicolas Sarkozy has been reported in the UK almost exclusively in terms of the humiliation of the former president. I have come away from my newspaper with notions of the allegations against him, which he denies, of trying to have influenced the judiciary in an investigation and illegal campaign funding (allegedly €50m from former Libyan leader Muammar Gaddafi).

But there is a serious side for lawyers, barely reported in the UK, which is that the former president’s telephone conversations with his own lawyer, Thierry Herzog, were listened in on, as were Herzog’s further conversations with a judge, and – maybe worst of all in the eyes of French lawyers – with the president of his bar (the Paris bar).

The president of a bar plays a different role in many continental jurisdictions to that of the president of the Law Society. In those jurisdictions, the president fulfils the function of lawyer protector. I shall give two examples of the difference.

First, if the office of a French lawyer is raided by police, the bar president has to be notified in advance and the president, or a bar representative, has to be present throughout the whole search and seizure. The president or representative will check if the seized information is directly linked to the court order, and can ask that some information covered by professional secrecy not be used as evidence.

Second, in the ongoing debate about lawyers and money laundering, the French bar has highlighted, and indeed promoted, its own system of reporting of suspicious transactions: the lawyer reports the suspicious transaction to the bar president, who then has the right to decide whether the financial intelligence unit should be informed or not (the so-called ‘filter’ system, because it is not the lawyer but the bar president who finally makes the suspicious transaction reporting decision).

It is not surprising, therefore, that the French bar has reacted with dismay to the news that the conversation between lawyer and bar president was listened in on. The president of the Conseil National des Barreaux (CNB), himself a former president of the Paris bar, issued a statement condemning it strongly and without reservation.

The statement recalls the duties of a president: to be at the service of lawyer members, who can meet the president, and speak to him or her in person or by phone so as to raise professional or private questions. If such conversations are recorded and used in court, the statement continues, lawyers will no longer be able to speak freely to the president, and a vital role will have been removed, to the disadvantage of clients.

Last March, the current president of the French republic promised the president of the Paris bar that there would be a new law on professional secrecy. The CNB has now asked that within that new law there should be a clause declaring the inviolability of conversations between lawyers and bar presidents.

What has all this to do with us, whose system is rather different? It is true that we cannot imagine the president of the Law Society performing the same duties I have described. But in essence we are suffering from the same problem, although under a different guise. The Sarkozy lawyer case is one of new technology being used easily to breach lawyer-client confidentiality (with the added twist of lawyer-bar president confidentiality).

And in the last few days, with the aim of trying to protect legal professional privilege, the Law Society has been lobbying over the Data Retention and Investigation Powers Act, which was rushed into force. The Society’s case raised the same concern: lawyer-client confidentiality can be breached easily by new technology. (I was pleased to read that James Brokenshire, a minister at the Home Office, said during the Commons debate that a code of practice to protect legal professional privilege and other forms of professional secrecy was under review.)

This is a world-wide problem. At a recent meeting with the American Bar Association, I learned that it is in discussions with a range of intelligence and law enforcement agencies (the NSA, FBI, CIA and others) to seek to protect attorney-client privilege from the ease with which it can be broken, this time through mass surveillance enabled by new technology.

Data protection is now probably the most important issue facing lawyers around the world. In my experience it arises at nearly every professional meeting between bars, and at international lawyers’ conferences. It is an obvious consequence of the move to electronic data, and of our discovery of the many forms in which such data are accessible to inquisitive or malign outsiders, whether through cloud computing, outsourcing, social media, emails and, in the Sarkozy case, mobile phones.

Jonathan Goldsmith is secretary general of the Council of Bars and Law Societies of Europe, which represents around a million European lawyers through its member bars and law societies. He blogs weekly for the Gazette on European affairs