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Confidentiality of lawyer-client comms still lacks due protection

As we celebrate European Lawyers’ Day this week, two years after the European Court of Human Rights’ condemnatory ruling, Estonian laws still fail to adequately guarantee people’s right to communicate confidentially with their lawyers.

Regarding situation in Estonia, Panagiotis Perakis, the President of the Council of Bars and Law Societies of Europe (CCBE), emphasized the ability to communicate confidentially with a lawyer as a fundamental right of the client, which is a must for receiving quality legal defence.

“National legislations must ensure that legal professional privilege is upheld and respected,” Perakis stressed. “Furthermore, It is imperative to recognise that lawyers have a broader societal role and are often at the forefront of advocating for human rights, defending the vulnerable, as well as promoting justice.”

According to Perakis, both European institutions and national authorities must support these efforts by fostering an environment where lawyers can fulfill their role as defenders of the rule of law. “By working together, we can build a Europe committed to justice and the rule of law,” he emphasized.

Imbi Jürgen, the Chairwoman of the Estonian Bar Association, stated that the freedom to consult a lawyer confidentially, without state interference, is the cornerstone of fair trial. “Merely a suspition of lack of confidentiality undermines the credibility of rule of law,” she emphasized. “Two years after the European Court of Human Rights’ decision that client confidentiality in Estonia is insufficiently protected, the situation unfortunately remains exactly the same.”

The Estonian Bar Association has repeatedly drawn attention to the increasing attempts by law enforcement authorities to push the boundaries of confidentiality in lawyer-client communication. According to Jürgen, this is manifested in increasingly arbitrary searches of law firms, the indiscriminate seizure of client documentation — including that of completely unrelated clients. It also includes the intention to create an entirely new procedure in the form of competition supervision that limits procedural safeguards.

In its judgment of 2021 (698/19), the European Court of Human Rights found that Estonian laws do not adequately protect the confidentiality of lawyer-client communication. Such a situation violates Article 8 of the European Convention on Human Rights, which protects individuals from arbitrary interference in their private and correspondence rights. The court noted in its judgment that Estonian laws do not guarantee the protection of data from unrelated clients during searches of law firms. Additionally, Estonian laws do not adequately protect copies of lawyer’s information carriers from unauthorized persons. Furthermore, there is no regulation at all regarding the search of a lawyer’s information carriers outside of law firms, such as in their homes or cars.

The Estonian Bar Association submitted a comprehensive draft on the protection of client confidentiality to the Ministry of Justice two years ago, but as of now, the draft has not progressed any further. European Lawyers’ Day is an initiative of the CCBE, where European bar associations and legal organizations annually draw attention to the role of lawyers in safeguarding the principles of the rule of law and fair justice. This year, the theme of this day is the confidentiality of communication between lawyers and clients.