Professional secrecy and legal professional privilege
| Date | 01 April 2018 |
| Author | Jorg Sladič |
| DOI | 10.1177/1023263X18773680 |
| Published date | 01 April 2018 |
| Subject Matter | Articles |
Article
Professional secrecy and legal
professional privilege:
Slovenian perspectives
on arbitration and civil
litigation
Jorg Sladic
ˇ*
Abstract
Legal privilege and professional secrecy of attorneys relate to the right to a fair trial (Article 6
European Convention on Human Rights (ECHR)) as well as to the right to respect for private and
protection of fundamental rights of the lawyer’s clients. All legal orders apply legal privileges and
professional secrecy; however, the contents of such are not identical. Traditionally there is an
important difference between common and civil law. The professional secrecy of an attorney in
civil law jurisdictions is his right and at the same time his obligation based on his membership of the
Bar (that is his legal profession). In common law legal privilege comprises the contents of docu-
ments issued by an attorney to the client. Professional secrecy of attorneys in civil law jurisdictions
applies solely to independent lawyers; in-house lawyers are usually not allowed to benefit from rules
on professional secrecy (exceptions in the Netherlands and Belgium). On the other hand, common
law jurisdictions apply legal professional privilege, recognized also to in-house lawyers. Slovenian
law follows the traditional civil law concept of professional secrecy and sets a limited privilege to in-
house lawyers. The article then discusses Slovenian law of civil procedure and compares the
position of professional secrecy in lawsuits before State’s courts and in arbitration.
Keywords
Lawyers and attorneys, Professional secrecy, Legal professional privilege, Common law approach,
Civil law approach, Membership of the bar, In-house lawyers, Litigation before state’s courts,
Arbitration, Slovenian law
* Faculty of Law, University of Maribor, Maribor, Slovenia
Corresponding author:
Dr. Jorg Sladic
ˇ, Faculty of Law, University of Maribor, Sloms
ˇkov trg 15, 2000 Maribor, Slovenia.
E-mail: jorg.sladic@evro-pf.si
Maastricht Journal of European and
Comparative Law
2018, Vol. 25(2) 188–207
ªThe Author(s) 2018
Article reuse guidelines:
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DOI: 10.1177/1023263X18773680
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1. Introduction
Governments shall recognize and respect that all communications and consultations between
lawyers and their clients within their professional relationship are confidential. (Article 22 United
Nations Basic Principles on the Role of Lawyers).
1
The question is, do the advocates representing their clients in civil lawsuits before state courts
share the same legal professional privilege as the advocates representing their clients in arbitra-
tion? This question will be examined from a comparative point of view and then applied to an
assessment of Slovenian law. Slovenian legislature adopted on 27 February 2017 an important
reform of Code of Civil Procedure (Zakon o Pravdnem Postopku (ZPP)). However, it would appear
that provisions on professional secrecy of attorneys (and notaries) were not modified.
2
The term
‘legal professional privilege’ is already an English version of a common European term coined by
the Court of Justice of the European Union (CJEU) that is based on a fusion of the common law
litigation privilege and legal advice privilege and the continental secret professionnel and Anwalt-
sprivileg. The differences between a State’s judicial system and arbitration as a private institution
are well explored. However, the question is whether or not privileges applied in judicial proceed-
ings can also be applied in arbitration. This issue seems to be well explored at the level of
international commercial arbitration; however, no satisfactory response has yet been found.
To begin, the comparative approach to legal professional privilege will be explored (Section 2).
Indeed, a common law lawyer used to common law legal privilege would raise an eyebrow when
reading the title where documents not intended for communication with the client and not contain-
ing any legal advice are concerned (attorney work product – attorney–client privilege); a civil law
lawyer would, on the other hand, respond that legal privilege is usually applied in personam to an
independent lawyer
3
and his employees, giving him the right and the obligation to remain silent
(hence the secrecy) on any communications with a client.
4
In assessing the core principles common
to the European legal profession, a finding reached by Advocate General at the CJEU Professor
Juliane Kokott in the seminal Akzo Nobel case is to be mentioned:
[I]n EU law, the protection of legal professional privilegehas the status of a general legal principle in the nature
of a fundamental right. This follows ...from the principles common to the legal systems of the Member
States: legal professional privilege is currently recognised in all 27 Member States of the European Union.
5
1. The Principles are available on the website, United Nations Office of the High Commissioner, ‘OHCHR’, OHCHR
(2018). See on the importance of that text of soft law in M. Prunbauer-Glaser, ‘Berufsgeheimnis – Rechtsschutzelement
oder Hindernis fu
¨r Effiziente Unrechtsverfolgung?’, O
¨sterreichisches Anwaltsblatt (2013), p. 555.
2. (SI) Official Journal of the Republic of Slovenia Nr. 10/2017, p. 1518.
3. See exceptions e.g. in the Netherlands (het bedrijfsjurist) and in Belgium (het bedrijfsjurist,le juriste d’entreprise).
4. See the general European provision applicable to all lawyers in the EU in Clause 2.3. of CCBE, ‘Charter of Core
Principles of the European Legal Profession and Code of Conduct for European Lawyers’, CCBE (2013), http://www.
ccbe.eu/NTCdocument/EN_CCBE_CoCpdf1_1382973057.pdf: ‘2.3.1. It is of the essence of a lawyer’s function that the
lawyer should be told by his or her client things which the client would not tell to others, and that the lawyer should be
the recipient of other information on a basis of confidence. Without the certainty of confidentiality there cannot be trust.
Confidentiality is therefore a primary and fundamental right and duty of the lawyer. The lawyer’s obligation of con-
fidentiality serves the interest of the administration of justice as well as the interest of the client. It is therefore entitled to
special protection by the State. 2.3.2. A lawyer shall respect the confidentiality of all information that becomes known to
the lawyer in the course of his or her professional activity’.
5. Opinion of Advocate General Kokott in Case C-550/07 P Akzo Nobel Chemicals and Akcros Chemicals v. Commission,
EU:C:2010:229, para. 47.
Sladic
ˇ189
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