The case of lawyers, legal advisers and the secret of defender in the penal proceeding revisited Cover Image

O adwokatach, radcach prawnych i tajemnicy obrońcy w postępowaniu karnym raz jeszcze
The case of lawyers, legal advisers and the secret of defender in the penal proceeding revisited

Author(s): Arkadiusz Ludwiczek
Subject(s): Law, Constitution, Jurisprudence
Published by: Wydawnictwo Uniwersytetu Śląskiego
Keywords: right of defend; defensive secret; legal advice; defender as a witness; legal adviser in the criminal proceedings; absolut interdictions to hear evidence

Summary/Abstract: As a result of amendments of the law acts regulating, among other things, the functioning of legal professions, the issue of the defensive secret has become up-to-date again. The very amendments made numerous changes in the acts of the professional corporations of lawyers and legal advisers. What was eliminated in relation to the occupation of a legal adviser, constituted the previously existent restrictions within the scope of the professional entitlements of this corporation in family and care-taking matters, sticking only to the subject restriction in penal cases and tax proceedings exclusively. It means that the present solutions allow the legal advisers to give legal help in penal cases in its all forms (e.g. give legal advice), whereas the only restriction is the possibility of participating in the penal proceeding in the form of a defender in cases on crimes and tax crimes. Taking into account the penal-trial regulations within the scope of the defender secret (e.g. from the art. 178, pkt 1, of the penal code), one should accept that the defensive secret, or, in fact, a “quasi”-defensive one, could also be observed in the relation of a legal adviser and a client. It happens when the legal adviser gives legal advice to the person against which the penal proceeding is or will be conducted. What might be a common practice is the situation in which the legal adviser, giving the legal advice to the instiutionalised subject (a public, self-government institution, a trade law company, etc.) gives the advice within the scope of the penal law to a person from the circle of the management of one of these institutions. The question that arises is whether the present regulations treat the confidentiality of information given to the legal adviser and the lawyer in an equal way. It seems that, in the first case, a rather unclear legal state may lead to form a hypothesis that there is a possibility of exempting a legal adviser from the solicitor-client privilege, and, as a result of interrogating him/her in the form of the witness, the access to the information given to him/her in secret. Such a state of affairs, undoubtedly, violates not only the regulation of the right to defend the accused, but also questions the equality of the citizens with respect to the law. In the analogical situation, except that the lawyer is taken into consideration, the information given to him/her by the client searching for the legal help is absolutely protected on the basis of the art. 178 pkt 1 of the penal code.

  • Issue Year: 26/2008
  • Issue No: 1
  • Page Range: 111-123
  • Page Count: 13
  • Language: Polish