Private communication between lawyers as evidence in a judicial process: A comparative journey 1
| DOI | 10.1177/13657127211055232 |
| Date | 01 January 2022 |
| Author | Joan Pico i Junoy,Juan Antonio Andino López |
| Published date | 01 January 2022 |
| Subject Matter | Articles |
Private communication between
lawyers as evidence in a judicial
process: A comparative journey
1
Joan Pico i Junoy
Universitat Pompeu Fabra, Barcelona, Spain
Juan Antonio Andino López
Universitat Pompeu Fabra, Barcelona, Spain
Abstract
In professional negotiations between lawyers, it is usual to share information, data and docu-
ments that could be protected with legal privilege. This paper analyses, from a comparative
perspective, the possible evidentiary use of the documents that a lawyer obtains from the
opposing lawyer in a subsequent judicial process. A conflict is presented here between two
fundamental procedural guarantees: The right to evidence of the party that possesses the
documents and the right to defence and legal privilege of the party that delivered them in
the prior negotiation to the lawsuit. The solution provided by different legal systems is there-
fore not always straightforward, because some legal systems do protect legal privilege and
others protect the right to evidence, with different solutions for the rights put in balance here.
Keywords
breach of legal privilege in comparative law, comparative evidence, comparative legal privilege,
mediation confidentiality in comparative law, private communications between lawyers,
settlement agreement and confidentiality in comparative law
Introduction
The rise of new technologies has also changed the way lawyers work: emails, conference calls and Skype
or Meet meetings online have almost replaced face-to-face meetings and have allowed lawyers to respond
directly to their clients without the need to be physically at the office. Also, negotiations between lawyers
have changed because they are able to negotiate through mere exchanges of emails, WhatsApp, etc.
1. This paper will use the national reporters from the 16th World Congress on Procedural Law of the International Association of
Procedural Law, held in Kobe (Japan) from November 2 to 5, 2019.
Corresponding author:
Law, Universitat Pompeu Fabra, Ramon Trias Fargas 25–27, Barcelona, Spain.
Email: joan.pico@upf.edu
Article
The International Journal of
Evidence & Proof
2022, Vol. 26(1) 61–80
© The Author(s) 2021
Article reuse guidelines:
sagepub.com/journals-permissions
DOI: 10.1177/13657127211055232
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Moreover, nowadays, judicial proceedings and arbitration are not the sole methods for solving a
dispute between parties. For example, the rise of mediation and collaborative proceedings has expanded
the scope of dispute resolution, but it also highlights the confidentiality issue of the contents of such pro-
ceedings as well as the communications between lawyers during these proceedings.
2
If we look at evidence, the above-mentioned issues raise new questions that need to be answered with
a global overview. First of all, it is necessary to determine whether such communications between
lawyers are protected under the so-called ‘legal privilege’and therefore they have to be kept confidential;
in this regard, brief reference will be made to client-attorney legal privilege, but as a mere example, since
we will focus only on private communications between lawyers. Secondly, it is also necessary to deter-
mine whether a lawyer would be entitled to bring any communication between lawyers to subsequent
judicial proceedings. In the event that such attachment is not allowed, then it would also be necessary
to highlight what consequences for the lawyer and for the evidence would result in the event that the
lawyer tries to introduce a communication between lawyers.
Therefore, we can find two conflicting rights: on the one hand, the right to confidentiality of commu-
nications between lawyers and their (possible) prohibition from attaching them to judicial proceedings
and, on the other, the right to evidence that all parties have in the framework of legal proceedings.
We will study how the different legal systems resolve these conflicting rights, by sometimes accepting
the procedural attachment of correspondence between lawyers, and sometimes rejecting said attachment.
For this reason, first we will analyse the right to evidence and its possible application in the different con-
tinental or common law constitutions (Part One), either because they expressly contemplate that right or
because it can be understood that the right to evidence is included in the broader framework of due
process. Afterwards, in Part Two of this article we will proceed to state which are the levels of protection
of the private communications between lawyers, and to classify different categories with the responses
provided by different legal systems. Later, in Part Three, we will draw different categories of solutions
to the question of whether it is possible to bring private communications between lawyers to a judicial
proceeding, to proceed to study in its Part Four what the consequences are that different legal systems
provide when said attachment (said evidence) breaches the confidentiality of private communications
between lawyers. The objective of this article is to highlight a paradox: it could be understood in most
legal systems that private communications between lawyers are confidential; however, under the
umbrella of the right to evidence (or the right to a fair trial), it is allowed its attachment to a subsequent
judicial proceeding.
Part one: The constitutional right to evidence
Most legal systems have a constitution sitting above legislation.
3
All laws, decrees, and rules, as well
as their interpretation, must be in accordance with their constitution. If we focus on our small story,
we may ask ourselves if the right to evidence is a constitutional right or if it can be considered implicit
2. See, for example, Andino López (2019: 105–128); Esteve Esteve (2016: 71–95).
3. In modern legal systems we can find a constitution at the apex of their normative pyramid. All countries involved in this work
have a constitution. The French Constitution is dated 4 October 1958; the German Constitution is dated 23 May 1949, the Italian
Constitution is dated 27 December 1947; the Spanish Constitution is dated 6 December 1978, and England and Wales’main laws
could be considered to be the Magna Carta of 1215 and 1297, the Petition of Rights of 1267, the Habeas Corpus Act of 1679; the
Bill of Rights of 1688, the Act of Settlement of 1701, the Parliament Act of 1911 and 1949, the Statute of Westminster of 1931,
the House of Lords Act of 1999, and the Constitutional Reform Act of 2005; finally, the U.S. Constitution of 17 September 1787,
with its 17 Amendments (the last one in 1992).
Regarding Europe, we can find their text in English at the website of the Spanish Congress of Deputies. Details are available
at www.congreso.es/consti/otras/europea/flash.html (accessed 1 December 2020). We can find an overview of the right to evi-
dence as a fundamental right in Ruiz Jaramillo (2019).
62 The International Journal of Evidence & Proof 26(1)
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