Lawyer-client confidentiality often violated
Frans H. Winarta
It is a tradition and universal public knowledge that the relationship between a lawyer and his client(s) imports obligations of confidentiality. The first duty of a lawyer is to keep secrets of his client.
In many cases, the distinction between the limits of confidence and the limits of privilege is often difficult to draw.
Confidentiality is a pre-requisite of legal professional privilege, and conversely if information is considered to be privileged, the decision whether to disclose it rests with the client, and not the lawyer.
Based on such confidentiality, the client requires his lawyer to withhold privileged documents in judicial or quasi-judicial proceedings, leaving the question of whether he may disclose them to the implied duty of confidence.
Basically, the client wants to be secure in the knowledge that protected documents and information will not be disclosed at all. So important and principal is this confidentiality that without the permission of the client, the lawyer cannot disclose the client’s secrets to anyone.
Internationally this is also stipulated in the International Bar Association (IBA) International Code of Ethics, Article 14, which reads: “Lawyers should never disclose, unless lawfully ordered to do so by the Court or as required by Statute, what has been communicated to them in their capacity as lawyers even after they have ceased to be the client’s counsel.”
Legal professional privilege, as it is now called, has its origins in the concept of confidence. A person or his legal counsel is free to speak about matters in litigation without fear that it will subsequently be used against him. This legal professional privilege is an important safeguard of a client’s legal rights.
The client’s confidentiality must be kept and not disclosed except with the approval of the client, even though the lawyer is no longer his/her legal counsel.
Recently we have seen media reports regarding the disclosure of the client’s secrets by their lawyer in interviews or in talk-shows. In reality, the privilege to defend the client is eliminated if the client’s secrets are disclosed in public without the client’s approval, because it a breech of the mutual agreement to keep the client’s secrets entrusted to the lawyer absolutely confidential.
The disclosure of confidential client information, which had been agreed upon within a law firm, cannot be carried out except with the express approval of the client. It is suspected that client’s confidentiality is breeched in corruption cases for political interests, to seek popularity or due to a conflict of interest.
If an allegation is not proven, the lawyer’s client might be accused of committing slander or defamation, especially in a politically charged case, because the client is ultimately responsible for the actions of the lawyer he or she appoints.
Meanwhile, Article 1797 of the Indonesian Civil Code stipulates that: “The mandatory shall not do anything which is outside the scope of his authority.”
If the client is a witness, their protection from LPSK (Witness and Victim Protection Agency) is jeopardized by the breech of confidentiality. Violations of clients’ confidentiality must be acted upon by the bar association because these actions violate the lawyer’s code of ethics and certainly harm the legal interests of the client.
The lawyer-client confidentiality, which creates the privilege to defend the contents of any discussions or documents shared between a lawyer and their client, is poorly understood by lawyers, which is why we see shameless and blatant violations of the lawyer’s code of ethics. Some lawyers act as if this kind of behavior helps law enforcement, whereas in fact the lawyer’s function is not one of law enforcement, but rather to defend the client’s interest and confidentiality.
This faulty perception of the lawyer’s function needs to be straightened out if we are to prevent further violations of legal ethics.
Before a client hires the legal services of a lawyer, the lawyer should be checked for any potential conflict of interest. This check is commonly done in the legal community or in litigation or arbitration. Preventing conflict of interest requires the lawyer’s honesty. No matter how interesting the case is or how it might attract the public’s attention, lawyers must recuse themselves if there is any conflict of interest.
Conflicts of interest can provide incentives for other unethical behavior, including violations of client confidentiality. The bar association must be responsive and take actions against ethical violations done openly or in secret. Many justice seekers have become victims, including suspects or defendants, in corruption cases. If this situation is allowed to go on, a fair trial, especially due process of law, will be significantly undermined.
One of the ways to handle this situation is with improved legal education and training that focuses on the increasing the understanding of the lawyer’s code of ethics, standardization of the legal profession, high quality bar exams, and the improvement of ongoing legal education opportunities.
It is time for all existing bar associations to set aside previous hostilities and establish a (National) Joint Board of Ethics to handle this situation and take actions against lawyers who violate the code of ethics. The decision of the (National) Joint Board of Ethics, such as warnings, suspensions, disbarment, and the revocation of licenses, must be respected and followed by all associations.
The prolonged struggle between bar associations is one of the causes of the low quality of lawyers in Indonesia. The current system and curriculum for training and bar exams (PKPA) focuses more on quantity, and not quality.
News that a lawyer who later testified against his former client in a corruption case, is a shocking example of the susceptibility to conflicts of interest and the disclosure of client’s secrets that plagues the Indonesian legal community.
It may have happened because of the lack of understanding of implicit ethical obligations, or it may have happened because of the lure of a large fee – symbolic of the excessive commercialization of the profession.
In short, this is the time to establish a (National) Joint Board of Ethics for all bar associations in Indonesia. It is true that the culture of a nation can be seen from the behavior and attitude of its lawyers. Thus, control over the lawyer’s practice and function is the conditio sine qua non to improve lawyers’ image as an independent legal profession with integrity.
The writer is chairman of PERADIN (Indonesian Advocate Association) and member of the governing board of the KHN (National Law Commission).
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