What is attorney-client privilege?
Attorney-client privilege constitutes one of the fundamental guarantees of the exercise of the legal profession. It is grounded both in general constitutional rules (chiefly Article 20 paragraph 1 of the Constitution on the right to effective judicial protection, as well as Article 5 paragraph 1 on the free development of personality and Article 9 on the secrecy of correspondence and communications) and in specific rules, whether legally binding (such as the Code of Lawyers) or merely of a deontological character (such as the Code of Conduct of the Athens Bar Association).
What does the Code of Lawyers say about attorney-client privilege?
According to Article 49 of Legislative Decree 3026/1954 (Code of Lawyers), the lawyer is obliged to maintain inviolable the required confidentiality in favour of the client, with regard to whatever the client has entrusted to him. In any event, he cannot be examined as a witness in a case in which he has been involved as a lawyer, without the prior authorisation of the Board of the Bar Association to which he belongs, or of its President in urgent cases. The above prohibition also extends to lawyers who provide their services for a fixed periodic fee, with regard to all the cases of the client to whom they provide their services.
Furthermore, according to paragraph 3 of the same article, a search under Articles 253 et seq. of the Code of Criminal Procedure (KPD), at the home or at the office of the lawyer, as well as a body search and the seizure of documents in the lawyer’s possession, under Articles 261 et seq. of the KPD, are prohibited, provided that the lawyer is the attorney-in-fact of the defendant or his defence counsel.
Related is Article 50 of the Code, according to which a lawyer who invokes before a court the fact that any testimony of his would conflict with professional privilege is not obliged to testify.
What does the Penal Code say about attorney-client privilege?
Article 371 of the Penal Code (PK) (“breach of professional confidentiality”) provides that lawyers and all kinds of legal representatives in whom persons usually confide private secrets by reason of their profession or capacity, as well as the assistants of such persons, are prosecuted upon complaint and punished with a monetary penalty or imprisonment of up to one year, if they reveal private secrets entrusted to them or learned by reason of their profession or capacity.
In the same penal provision, however, it is stated that the act is not unlawful and remains unpunished if the perpetrator was aiming at the fulfilment of his duty or at the safeguarding of a lawful or otherwise justified material interest, public or his own or that of another person, which could not be safeguarded otherwise.
What does the Code of Criminal Procedure say about attorney-client privilege?
Furthermore, under Article 212 of the Code of Criminal Procedure (“professional privilege of witnesses”), the criminal proceedings are annulled if defence counsel are examined during the preliminary investigation or the main proceedings concerning what their clients have entrusted to them. Defence counsel decide, according to their conscience, whether and to what extent they should testify about other matters they learned in connection with the exercise of their function. Indeed, the above prohibition applies even if the persons to whom it refers have been released from the obligation to maintain professional privilege by the person who entrusted them with it.
What does the Code of Civil Procedure say about attorney-client privilege?
In line with the above, Article 400 of the Code of Civil Procedure (KPolD) (“exemption of witnesses”) provides that lawyers and their assistants, when summoned as witnesses, are not examined regarding factual matters entrusted to them or ascertained in the exercise of their profession, in respect of which they have a duty of confidentiality, unless permitted by the person who entrusted them with such matters and by the person whom the privilege concerns.
What does the Code of Conduct of the Athens Bar Association say about attorney-client privilege?
According to Article 32 of the Code of Conduct enacted by the Athens Bar Association on 04.01.1980, lawyers are not permitted to be examined as witnesses in court regarding cases and circumstances that came to their knowledge during the exercise of their function in courts, in extra-judicial work, negotiations, or efforts to resolve disputes amicably. In exceptional cases, they may be examined as witnesses in a case in which they had involvement or which they know of through the exercise of their function, provided however that significant grounds exist, which are assessed by the Board of the Athens Bar Association, upon application by the lawyer. Even, however, if the relevant authorisation is granted by the Bar Association, lawyers are prohibited from testifying about circumstances entrusted to them by their client and from breaching their professional privilege in any way. Under no circumstances are they permitted to be examined as witnesses against their client or former client or their heirs, even if the relevant retainer has been terminated or revoked.
What is the relationship between attorney-client privilege and Law 3691/2008 on the prevention of money laundering?
Under Article 3 of Law 3691/2008, among the criminal activities for which special prevention and suppression measures are provided are also the offences of tax evasion provided for in Articles 17, 18 and 19 of Law 2523/1997, as in force, as well as the offences of smuggling provided for in Articles 155, 156 and 157 of Law 2360/2001, as in force.
Persons subject to the obligations of the above law include, among others, notaries public and lawyers, when they participate, either acting on behalf and for the account of their clients in the context of financial transactions or transactions involving real estate, or assisting in the planning or execution of transactions for their clients in relation to:
i) The purchase or sale of real estate or businesses,
ii) the management of money, securities or other assets of their clients,
iii) the opening or management of bank accounts, savings accounts or securities accounts,
iv) the organisation of the contributions necessary for the formation, operation or management of companies,
v) the formation, operation or management of companies, trusts or similar legal arrangements.
However, Article 5 expressly provides that the provision of legal advice continues to be subject to the observance of professional privilege, unless the lawyer or notary themselves participates in money laundering or terrorist financing activities, or unless the legal advice is provided for the purpose of committing such offences, or with knowledge of the fact that the client is seeking legal advice in order to commit the above offences.
According to Article 78 of Law 3691/2008 (“Powers of the Authority’s Units”), the units of the established “Authority for Combating Money Laundering, Terrorist Financing and Audit of Asset Declarations” request from the obliged persons all the information required for the fulfilment of their duties, including aggregate information concerning certain categories of transactions or activities of natural or legal persons or entities domestic or foreign. In addition, they may carry out on-site inspections at the premises of the obliged persons, subject to compliance — where applicable — with Articles 9 paragraph 1, 9A and 19 paragraph 1 of the Constitution, and inform the competent authorities of cases of incomplete cooperation or non-compliance by such persons with their obligations under this law.
Vis-à-vis the units, no banking, stock exchange, tax or professional privilege applies during their inspections and investigations, subject to Articles 212, 261 and 262 (seizure of documents) of the Code of Criminal Procedure.
According to Article 35, the obliged persons must retain the following documents and information for use in any investigation or inquiry into a possible attempt or commission of tax evasion offences, by their competent authority or any other competent public authority, including prosecutorial and judicial authorities:
a) the data identifying the client and verifying their identity, upon entering into any kind of contract, for a period of at least five years after the end of the business relationship with the client,
b) the legitimising documents, photocopies of documents on the basis of which the client’s identification and verification was carried out, and original or copies of supporting documents of all types of transactions, for a period of at least five years after the end of the business relationship or the execution of each transaction,
c) the internal documents concerning approvals or findings or recommendations on cases relating to the investigation of the above offences or cases reported or not reported to the Committee, for a period of at least five years after the end of the business relationship of the client related to the above cases,
d) the data of the business, commercial and professional correspondence with clients, as may be specified by the Competent Authorities. The data and documents referred to above under (a), (b), (c) and (d) are kept in printed or electronic form, for the period mentioned in those subparagraphs, unless retention for a longer period is required by another statutory provision or regulatory decision.
The above data must be kept in such a way that the obliged person can respond without delay to a request by the competent authority for the retrospective reconstruction of the sequence of transactions.
What prevails when professional privilege conflicts with the powers of the SDOE Action Sections?
According to Article 20 of Presidential Decree 154/1997, the Prosecution Teams act within the framework of the Constitution, the laws and the relevant inspection orders, and in accordance with the relevant operational service plans.
In each case of inspection or investigation, irrespective of whether it takes place in the street or in the business premises or other space of the inspected person, the officers of the Prosecution Teams declare their capacity, the service they belong to, the purpose of the inspection or investigation, and present the relevant inspection order or search warrant, as well as their service identity card, always observing the formalities of the Constitution, the Code of Criminal Procedure and the relevant legislation. In the exercise of their powers, and observing the formalities of the Constitution, the Code of Criminal Procedure and the relevant legislation, the officers of the Prosecution Teams shall: a) act with decorum, objectivity and respect for legality and the personality of those inspected; b) confine themselves exclusively to the actions necessary for the carrying out and completion of each inspection procedure; c) make particular efforts to ensure that their inspection verifications, procedures and actions are correct, lawful and substantively complete in every respect; d) take all necessary lawful steps to safeguard the evidence of the infringements identified, against any possibility of subsequent dispute, alteration or general disappearance. To this end:
– They take cognisance of, inspect and certify all mandatory and optional books and records of the inspected person. The certification thereof is carried out at a point and in a manner that makes their alteration impossible, and includes the signature thereof by all the officers carrying out the inspection, as well as the recording of the date and time of certification, the full names of the inspecting officers and the title of their service.
– They carry out seizures of unofficial books, records or other documents or magnetic media or computers (PCs) or fiscal cash registers (FCRs) or other data storage media, which come to their attention and are related to the inspection and from which it may emerge that there is concealment of taxable matter or commission of another economic crime offence falling within the competence of the SDOE.
– They carry out seizures and take into the Office for inspection certain official mandatory or optional books or records or magnetic media or PCs or FCRs or other data storage media of the inspected person, in the cases and under the conditions where this is permitted by the relevant provisions and is deemed necessary, for the inspection of the seized unofficial books, records or documents or is required to safeguard them from any alteration of their data. They carry out seizures of goods, merchandise and other items or means of committing economic crimes, in cases provided for by current legislation or falling within their substantive competence and the area of their duties, in order to secure the proof of the commission of the relevant infringement.
– They carry out arrests and interrogations of persons, searches and special investigative acts, in accordance with the provisions in force. Furthermore, under Article 28 of Presidential Decree 154/1997, the officers of the SDOE may:
– Carry out searches of documents and other records, as well as searches in other premises that do not concern the professional activity of the inspected person, when there is evidence or well-founded suspicion of the commission of economic infringements, after prior permission of the inspected person or of the competent prosecutor and, in the absence thereof, of the local justice of the peace. When it concerns a search in a residence, the presence of a representative of the judicial authority is always required (Article 4 paragraph 3 subparagraph b of Law 2343/95).
– Carry out arrests and interrogations of persons and searches of means of transport, goods, persons, shops, warehouses, residences and other premises, seizures of goods and merchandise, as well as special investigative acts, in accordance with the provisions of the special provisions in force from time to time and the provisions of the Code of Criminal Procedure, for the offences provided for by the relevant legislation and falling within the substantive competence of the SDOE and the area of their powers.
– Have access to any information or data which concerns or is useful for the exercise of their work and mission, not being subject to the restrictions of the legislation on tax, banking, stock exchange and business privilege, but being obliged to observe the confidentiality provisions of Article 72 of the Civil Servants Code. They have the same obligation of confidentiality with regard to the data and information of the inspection orders, the operational plans and the information, documents or other data of the Service, which by law are confidential or are characterised by the Service as confidential. It is noted that any resistance, disobedience, insult or use of violence against the officers of the SDOE, in the exercise of their powers, entails the sanctions provided for by criminal law, irrespective of compensation for any damage caused to them in accordance with the relevant provisions of the Civil Code (AK). The police, port, military and other Authorities and Services are obliged to provide immediate and effective assistance to the officers of the SDOE, when requested (Article 4 paragraph 6 of Law 2343/1995).
When is attorney-client privilege overridden?
Attorney-client privilege, as a particular manifestation of professional privilege, constitutes a particularly important aspect of the legal profession, with constitutional and legislative foundations, and for this reason has always enjoyed special protection in Greek law.
It should be noted that, in contrast with other forms of privilege, such as banking, tax, communications privilege etc., which have already been overridden mainly with a view to combating serious economic crimes and at the urging of the European Union, attorney-client privilege remains strong and may be overridden only under strict conditions.
It is, of course, a fact that, while the Greek legislator has provided for special procedures and mechanisms for the prevention and suppression of certain serious offences (narcotics, tax evasion, customs offences, illegal gaming etc.) and has assigned special investigative duties to the SDOE for combating those offences, it has NOT, however, systematically regulated the fate of attorney-client privilege in relation to the above provisions. As a result, the boundaries between the observance of attorney-client privilege and the safeguarding of the public interest are unclear and difficult to discern. For example, the contradiction in Law 3691/2008 is apparent, on the one hand, in Article 5, where it is expressly stated that the provision of legal advice continues to be subject to the observance of professional privilege (unless the lawyer or notary themselves participates in money laundering or terrorist financing activities, or unless the legal advice is provided for the purpose of committing such offences, or with knowledge that the client is seeking legal advice in order to commit such offences) and, on the other hand, in Article 7b, where it is provided that vis-à-vis the units, no banking, stock exchange, tax or professional privilege applies during their inspections and investigations, subject to Articles 212 (examination of lawyers as witnesses in the preliminary investigation and/or main criminal proceedings), 261 and 262 (seizure of documents) of the Code of Criminal Procedure.
From all the foregoing, I conclude that, in general, attorney-client privilege continues to apply. It is overridden only in cases where the lawyer himself participates in unlawful activities or provides legal advice for the purpose of carrying out such activities.
It should be noted that the lawyer’s office, during non-working hours, is considered to be his residence, which is protected by the well-known constitutional asylum of Article 9 of the Constitution, and consequently no search may be conducted without prior prosecutorial order.
Also significant are the provisions cited above on the obligation of lawyers who have acted as legal representatives in cases suspected of involving the commission of tax evasion offences to retain the client’s data, contract documents, communications etc. for at least five years.
FREQUENTLY ASKED QUESTIONS ABOUT Attorney-Client Privilege: I Am Your Lawyer – Not Your Judge
1. What exactly does attorney-client privilege protect?
Attorney-client privilege covers everything the client entrusts to his lawyer, as well as whatever the lawyer learns in connection with the exercise of his function. The protection is particularly strong and is grounded in the Constitution (Articles 9 and 20), the Code of Lawyers, the Codes of Criminal and Civil Procedure, and the Code of Conduct of the Athens Bar Association. The lawyer is not examined as a witness regarding what the client entrusted to him, while in principle searches of his office and seizures of documents relating to the defence of the accused are prohibited. It is a guarantee that exists exclusively in favour of the client, so that he may speak freely and fully to his lawyer.
2. Can my lawyer testify against me?
As a rule, no. According to Article 212 of the Code of Criminal Procedure, if defence counsel is examined regarding what his client entrusted to him, the criminal proceedings are annulled. A corresponding prohibition applies in civil proceedings under Article 400 of the Code of Civil Procedure (KPolD). Indeed, the prohibition applies even if you yourself release your lawyer from the privilege. The Code of Conduct of the Athens Bar Association goes one step further: under no circumstances is the lawyer permitted to testify as a witness against his client or former client, even after the termination of the retainer. The trust in the client–lawyer relationship is absolutely protected.
3. What does the lawyer risk if he breaches privilege?
The breach of professional confidentiality is criminally punishable under Article 371 of the Penal Code, with a monetary penalty or imprisonment of up to one year, upon complaint by the aggrieved party. At the same time, the lawyer is exposed to disciplinary sanctions by the Bar Association, which may extend up to permanent removal from the profession, as well as civil liability for damages should the client suffer harm. The law provides for an exception only when disclosure is made to safeguard a substantial justified interest that could not be protected otherwise. In any other case, confidentiality is absolute and its breach entails serious consequences.
4. When is attorney-client privilege overridden?
In contrast with other forms of privilege (banking, tax), attorney-client privilege remains strong and is overridden only in exceptional cases. According to Law 4557/2018 (which replaced Law 3691/2008), the provision of legal advice continues to be covered by privilege, unless the lawyer himself participates in money laundering activities or in the financing of terrorism, or unless the advice is provided with knowledge that the client intends to commit such offences. Furthermore, in order for a lawyer to testify as a witness in a case in which he was involved, the prior authorisation of the Board of the relevant Bar Association is required. Privilege is not overridden merely because there is a suspicion that the client has committed some offence.
5. Are searches of a lawyer’s office permitted?
Searches of the lawyer’s office and seizures of documents in his possession are prohibited, provided that he is the attorney-in-fact or defence counsel of the accused, in accordance with Article 49 paragraph 3 of the Code of Lawyers. In any case, in order for a search to be carried out, a prosecutorial order is required, as well as compliance with the guarantees of the Constitution and the Code of Criminal Procedure. It is significant that the lawyer’s office, outside working hours, is treated as a residence and enjoys the constitutional asylum of Article 9 of the Constitution. Documents and files relating to the defence of an accused person cannot be seized, precisely so that the protection of privilege is not circumvented through the search.
6. How does our firm safeguard confidentiality?
At ZIAMPARAS D. & Associates Law Firm, confidentiality is treated as an absolute obligation towards the client, not merely as a formal rule. The client may speak freely and fully, even regarding matters he believes are incriminating, since only with full knowledge of the facts can the lawyer properly design the defence or the legal strategy. All documents, electronic communications and notes are kept securely and are never disclosed to third parties without express instruction. The lawyer’s role is to defend his client, not to judge him — and this principle governs every case undertaken by the firm.