Hi,

I need an example of a case in which a European company in a Civil Law
country (such as France, Germany, Italy, Spain, and all other
continental European countries apart from Malta and Cyprus) did
something that involved the principle of "Secret Professionnel." 
Secret Professionnel is the way lawyers over there protect
confidential attorney-client documents.

By "did something," I mean a lawyer claimed "secret professionnel"
status to protect his client, but the courts struck down his claim. Or
the something to illustrate the concept of SP.  It has to be a real
case.

It is hard to search for stuff on this because all the hits come back
in French and Italian.

My end product is a short case study like this:

"In a famous case, a very large international bank collapsed causing a
huge scandal. Depositors lost of billions of pounds. The British
government established an inquiry into a major British bank's dealings
with the failed bank. The British bank created a committee to assist
the inquiry and deal with the external lawyers. At the end of the
inquiry, the creditors of the failed bank brought proceedings against
the British bank, alleging negligent regulation of their bank. The
creditors sought disclosure of certain documents the British bank
prepared for the government inquiry. The bank claimed they were
protected by legal advice privilege. The creditors argued that the
external lawyers' client was the committee, not the bank itself.

The Court of Appeal decided the client was, in fact, the committee.
The documents were not privileged and had to be disclosed."

That is great, except it is for the UK, a Common Law country.

You don't have to write the case study. I'll do that.  Just provide me
some factual material I can write a case about.

Thank you.

Questions?
SteveAltes@aol.com

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Clarification of Question by jimwalden-ga on 13 Nov 2003 19:11 PST

This can be from a newspaper or a legal database.  Doesn't matter.

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Clarification of Question by jimwalden-ga on 13 Nov 2003 20:58 PST

I will take almost anything having to do with 

  Secret Professionnel 

  Civil Law in Europe

  the differences in how external lawyers and in-house counsel are
treated in Civil Law nations

Any real case that I can write up a short "From the Headline" type example

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Clarification of Question by jimwalden-ga on 13 Nov 2003 20:59 PST

Please help, I need this tonight.

Greetings, jimwalden!

Well, I always enjoy the opportunity to use my French language
training, and although I found numerous French criminal cases relating
to attorney-client privilege, I was unable to find any references to
civil cases on that subject.

However, when I tried a different tack:

French "case law" database
://www.google.com/search?&q=French+%22case+law%22+database

I hit paydirt.

That search string brought up the Search Page for the Case Law
database of HUDOC (the European Court of Human Rights):
http://hudoc.echr.coe.int/hudoc/default.asp?Language=en&Advanced=1

and when I searched the database (full text) for "secret
professionnel"the case that popped up was this one:

CASE OF KOPP v. SWITZERLAND (13/1997/797/1000) 
http://hudoc.echr.coe.int/hudoc/ViewHtml.asp?Item=0&Action=Html&X=1115015556&Notice=0&Noticemode=&RelatedMode=0&X=1115015601

This involves a civil case where a wiretap on a law firm's telephones
had been authorized by the Federal Public Prosecutor. The firm filed
suit, charging that their professional secrecy had been violated  by
the wiretapping, which of course had recorded phone calls wherein
information protected by client-attorney privilege was discussed.

The judgment decreed that the attorneys had not enjoyed a minimum
degree of protection required by rule of law in a democratic society
and that Article 8 of the European Convention on Human Rights had been
violated.

I've made this Answer brief to get you the information as quickly as
possible. Please do ask for Clarification if you have any questions or
concerns about the Answer I have provided you.


Other search terms I tried:
"secret professionnel" [professional secrecy]
avocat OR avocats [attorney(s)]
"étude de cas" OR "étude de cas" [case study(ies)]
"cass. civ" [abbreviation for civil case]
civile [civil]
loi [law]
-concurrence [competition]
-médecin -médecine -médecal
-Québec 


Best Wishes!

aceresearcher

Brilliant work! I commend aceresearcher!

Does the case study have to involve "Secret Professionnel" between
attorney and client, or can it involve other professionals and their
clients?

Yes, must be attorney - client. Not doctor-client, or accountant-client.  Thank you

Would a case of a company suing its legal firm for malfeasance, and
the legal firm requesting disclosure of privileged documents regarding
their attorney-client relationship to support its defense be
acceptable?

Oops. I forgot to add that this case is from the UK.

Thanks,

ace

If it is a Civil Law country and there is enough information for me to
write up something like this:

"In a famous case, a very large international bank collapsed causing a
huge scandal. Depositors lost of billions of pounds. The British
government established an inquiry into a major British bank's dealings
with the failed bank. The British bank created a committee to assist
the inquiry and deal with the external lawyers. At the end of the
inquiry, the creditors of the failed bank brought proceedings against
the British bank, alleging negligent regulation of their bank. The
creditors sought disclosure of certain documents the British bank
prepared for the government inquiry. The bank claimed they were
protected by legal advice privilege. The creditors argued that the
external lawyers' client was the committee, not the bank itself.
 
The Court of Appeal decided the client was, in fact, the committee.
The documents were not privileged and had to be disclosed."

In anticipation of the requested removal of my answer, I am posting
the original answer and follow-up discussion in full, so that another
Researcher will be able to use it if he or she tries to answer the
question.  I apologize for any formatting problems that might be in
this post; it was difficult to copy the entire thing.  I hope that
jimwalden-ga gets the answer he is seeking.

* * *

Subject: Re: Need example of someone using "Secret Professionnel" in
Civil Law country
Answered By: justaskscott-ga on 13 Nov 2003 21:52 PST
Rated: [One star]
  
Hello jimwalden-ga,

In light of your second clarification, I'm going to post this
information as an answer.  The materials do not involve a single case,
but they provide enough information to help you write about secret
professionnel and how it works in civil law and common law countries. 
(Please note the disclaimer at the bottom of the page, indicating that
this material does not constitute professional legal advice.)

"The Professional Secret, Confidentiality and Legal Professional
Privilege in Europe"
CCBE
http://www.ccbe.org/doc/En/update_edwards_report_en.pdf

"Privilege" [including several potentially useful articles, such as
"Legal privilege versus secret professionel"]
European Company Lawyers Association
http://www.ecla.org/categorypage.html?categoryid=3

- justaskscott-ga


Search terms used on Google:

"secret professionnel" court [searched for English results only]

Request for Answer Clarification by jimwalden-ga on 13 Nov 2003 22:04 PST

That stuff is excellent background material. It's about the best I
could find on my own, but it still doesn't have any actual cases that
I can write up. I appreciate your trying.  This is not easy.

Clarification of Answer by justaskscott-ga on 13 Nov 2003 22:07 PST

I'll try to find a case, probably one of the cases mentioned in these
sources.  It may be difficult, since many cases from Europe are never
published in English.

Clarification of Answer by justaskscott-ga on 13 Nov 2003 22:30 PST

I'm not sure whether these will suffice, but there is a noted case of
the European Court of Justice, AM&S, and a recent case in that court,
Akzo Nobel, that is dealing with its implications.

"In-house lawyers and legal professional privilege: a problem
revisited", by  Jonathan Faull (8/10/1997)
The European Union http://europa.eu.int/comm/competition/speeches/text/sp1997_049_en.html

"Interim Order Given in Akzo Case"
European Company Lawyers Association
http://www.ecla.org/pages/akzo_nobel.html

"Recent Case Law of the Court of Justice and the Court of First
Instance * 1997-06-17/2003-11-13" [search for names of parties: akzo]
The Court of Justice of the European Communities
http://www.curia.eu.int/jurisp/cgi-bin/form.pl?lang=en

Clarification of Answer by justaskscott-ga on 13 Nov 2003 22:35 PST
For whatever it's worth, here's another document, somewhat similar to
the CCBE document in that it is a survey:

"In-House Counsel and the Attorney-Client Privilege"
Lex Mundi
http://www.lexmundi.com/images/LM_Atty_Client_Privilege.pdf

Request for Answer Clarification by jimwalden-ga on 13 Nov 2003 22:38 PST

Good work, but here's the trouble.  The AM&S and Azko cases
areEuropean Competition Law cases.  Not Civil Law cases.  European
Competition Law is the one area where the laws are pan-Europic. Still
looking for one case in the news having to do with "Secret
Professionnel" or a case dealing with legal privilege in a Civil
Lawcountry. Best hunting is probably France, Germany, Italy, or Spain.
 But the online translators don't produce great results of articles.

Clarification of Answer by justaskscott-ga on 13 Nov 2003 23:25 PST

I wish I could help you more, but I have not found any other sources.
I posted the answer in light of your second clarification; I knew that
finding a text in English would be difficult, as you apparently know
as well.

It seems that the best solution on such short notice is to scan the
sources I have given for any mention of foreign cases, and use the
best description, even if not quite as long as you were hoping.  You
can try a search for the best case names or numbers on Google or
another search engine, perhaps in conjunction with a term like
"privilege", "confidential", or "AM&S", to see if anything comes up by
a stroke of luck.

Clarification of Answer by justaskscott-ga on 13 Nov 2003 23:35 PST

I am going to sleep now, but I have posted a message for other Google
Answers Researchers about your question.  I certainly can't promise
anything, but perhaps a European Researcher or some other Researcher
could come up with a helpful source or idea.

Request for Answer Clarification by jimwalden-ga on 14 Nov 2003 00:32 PST

Despite this researcher's best efforts, this question is still open.

Clarification of Answer by justaskscott-ga on 14 Nov 2003 08:00 PST

I just got up, and wanted to see if there were any developments with
your question.  I see that aceresearcher-ga has posted a comment, but
I suppose that other Researchers did not have anything to add.

Given the time of day, is your question still open now?

Request for Answer Clarification by jimwalden-ga on 14 Nov 2003 09:23 PST

My deadline is close of business, west coast, today. So as of now the
question is open.  Thank you

Clarification of Answer by justaskscott-ga on 14 Nov 2003 09:59 PST

I have a few other commitments today, which may not take the entire
day, but at least a good part of it.  I will make an unusual
suggestion in this situation -- you might want to post
anotherquestion.  (You can determine an appropriate price for the
question bylooking at
http://answers.google.com/answers/help.html#howtospecifyand
http://answers.google.com/answers/pricing.html .)

You changed the scope of this question somewhat through your
clarification, and I answered that clarified version of the question
to the best of my ability.  But perhaps another Researcher will take
interest in the original version of the question if you post it again.
Currently, any Researcher who helps out on this question is doing so
for free.

If you do post a new question, you might want to summarize what has
gone with this question, and in any event include a link back to it
(http://answers.google.com/answers/threadview?id=275631 ).

Request for Answer Clarification by jimwalden-ga on 14 Nov 2003 10:05 PST

I did not, at any point, change the scope of this question. But thanks for trying.

Clarification of Answer by justaskscott-ga on 14 Nov 2003 11:09 PST

Perhaps you did not change the scope, but I thought that you did. Your
clarification began: "I will take almost anything having to do with
...."  I did not feel that I would be able to find enough material
before reading that, but afterwards, I figured that what I would find
would help you.

I tried my best; I alerted other Researchers as well, some of whom had
probably already tried and not found anything else.  I hope that you
come away with the impression that you got at least your money's
worth; you can imagine what this amount of research might have cost
elsewhere!

Request for Answer Clarification by jimwalden-ga on 14 Nov 2003 11:24 PST

Yes, I said:

"I will take almost anything having to do with
Secret Professionnel
Civil Law in Europe
the differences in how external lawyers and in-house counsel are
treated in Civil Law nations

Any real case that I can write up a short "From the Headline" type example"

None of the material provided, provides any material from which a
"From the Headlines" case study like the example I gave can be
created.

I'm sorry, but you did not find an example I could use.  That is quite obvious.

Request for Answer Clarification by jimwalden-ga on 14 Nov 2003 11:29 PST

I'm not being a dick, but none of the information provided is the
information requested. It's vaguely related in that some of it has to
do with privilege in Common Law countries.  But I requested a case
from the headlines in a Civil Law country.  This is the crucial
distinction. A "lightning bug" is not "lightning."

FYI (re: money's worth), not one iota of the information provided
helps me.  But thank you for trying. It was a difficult question.

Clarification of Answer by justaskscott-ga on 14 Nov 2003 11:37 PST

I will request that the Editors remove my answer, so that someone else
may answer it instead.

jimwalden-ga rated this answer:  [One star]

It was a difficult question to be sure. The researcher did not answer
the question yet insisted that I got my money's worth.  I did not.  I
got $0.00 worth