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Attorney-Client Privilege: To Store Impossible To Disclose


Iryna Kuzina, attorney, Head of Kharkiv Office at Ilyashev & Partners Law Firm

What are the cases for attorney’s «sharing» the client information and what are the consequences of attorney ethics infringement

Disgraced ex-Peoples Deputy Aleksandr Onishchenko terminated an agreement with his lawyer Andrey Tsygankov. This was announced on Mr. Onishchenko’s Facebook. He noted «Due to your disclosure of attorney-client privilege let me inform you on the termination of formerly concluded legal services agreement. From now on you are not authorized to represent my interests in any matters. Therewith, your obligation to keep the attorney-client privilege is not withdrawn».

Taking into consideration the public uproar recently associated with Aleksandr Onishchenko’s figure, as well as the uncertain situation around the definition of attorney-client privilege, Forbes asked the attorney Irina Kuzina to clarify the meaning of attorney-client privilege and attorney ethics in modern realities, and how these notions interact with one another in lawyers’ daily activities.

Observance of confidentiality principle is an essential and the most important prerequisite for trust-based attorney-client relations, without which it is impossible to render proper legal support, defense and representation (part 1 article 10 of the Attorney’s Rules of Professional Conduct approved by Ukrainian Bar Conference dated 17.11.2012).

Nondisclosure of the information provided to the attorney to any third parties, moreover to law enforcement authorities, is of the uttermost importance for the client. Without the trust to the attorney the information will be incomplete, and the consultation and defense strategy – incorrect. Realizing the necessity of such trust-based relations, the state recognizes and protects the attorney-client privilege.

Under the Law of Ukraine «On Bar and Practice of Law» (article 22), the attorney-client privilege rules apply to the following data:

• Client information (even the fact of client’s application to attorney constitutes a secret);
• Matters on which client applied for legal support (even if the agreement with attorney is not concluded eventually);
• Contents of attorney’s legal advice, consultations, clarifications, drafted documents (therefore the attorney case files are protected);
• Information stored in soft copies (attorney case files may also be stored in soft copies);
• Other documents and data obtained by the attorney during his legal practice (in other words all information made available to the attorney due to his status).

The client may release the attorney of the duty to keep attorney-client privilege – but only in writing. In case of any attorney-client dispute the attorney is liable to disclose the attorney-client privilege to the court or disciplinary board deciding the case – nevertheless the information should not disseminated beyond these jurisdictions.

Moreover, the information on «laundering» of illicit revenues, terrorism sponsoring and dissemination of weapons of mass destructions may be legally provided by the attorney being a reporting entity to an authorized agency. Although such cases are beyond my personal knowledge. Nevertheless, the Higher Qualifications and Disciplinary Bar Commission (hereinafter – HQDBC) prepared its Guidelines should the abovementioned occur (HQDBC Decision № VІ/6-230 as of June 17, 2011).

In order to completely secure the attorney-client privilege the legislator denied access to attorneys’ case files even for the benefit of crime investigations, including capital offences, in addition the attorney in no event can be examined with regard to the client’s case.

Needless to say that the disclosure of attorney-client privilege by the attorney is strictly forbidden by the Law of Ukraine «On Bar and Practice of Law», as well as by the Attorney’s Rules of Professional Conduct.

Attorney’s Rules of Professional Conduct is a legal regulation adopted by bar self-governance body and binding on all Ukrainian attorneys and foreign counsels (admitted to practice in Ukraine), which specifies the attorney’s rights and duties, and sets forth ethical landmarks for his behavior.

Violation of Attorney’s Rules of Professional Conduct forms the basis for the attorney’s disciplinary liability. In addition a separate ground for liability is the disclosure of attorney-client privilege (paragraphs 3, 4 part 2 article 34 of the Law of Ukraine «On Bar and Practice of Law»).

Therewith, the disclosure of attorney-client privilege forms the basis for the strictest disciplinary penalty – revocation of license to practice law with the following exemption from the Unified Register of Attorneys of Ukraine. Higher Qualifications and Disciplinary Bar Commission website features the decisions made by this authority, whereof one may find the practice of bar disciplinary bodies – which is well-defined: when the attorney’s is proved guilty of the disclosure of attorney-client privilege he looses his status.

Thus, for instance, upon the decision № V-009/2016 dated February 17, 2016, the attorney was revoked of license for notifying the court in his letter on the reasons for terminating the agreement with his client due to the fact that the client’s actions regarding the criminal litigation and civil case «bear the evidence of criminal offence under part 4 article 190, article 358 of the Criminal Code of Ukraine». The same claim letter was forwarded by the attorney to law enforcement agencies. It is revealing that the Qualifications and Disciplinary Bar Commission of Kyiv Region applied a less strict penalty, which was regarded by HQDBC as insufficient and replaced with the strictest disciplinary penalty.

One will hardly disagree with such HQDBC decision, as we may observe not only a proved disclosure of attorney-client privilege, but also an obvious damage to the interests of the client.

It is important that in case of revocation of attorney’s license the lawyer shall have no opportunity for another two years to initiate the procedure for subsequent license obtainment (part 2 article 6 of the Law of Ukraine «On Bar and Practice of Law»).

Therefore, in case the affected client or any other entity being aware of disciplinary misconduct submits a claim to the regional Qualifications and Disciplinary Bar Commission, the disciplinary proceeding may become very unfortunate for the attorney.

Moreover, the client may file a civil lawsuit regarding the pecuniary and non-pecuniary damage recovery.

However, the Criminal Code does not set forth the criminal liability for the disclosure of attorney-client privilege – if the information does not fall within the commercial secret (article 232 of the Criminal Code of Ukraine).

Consequently, the attorney having disclosed the attorney-client privilege – if proven guilty – shall be suspended of his status and for the following two years shall be deprived of the opportunity to practice law.

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