With the increase in in trans-national and cross-border litigation has come the problem of conflicts between differing legal systems. Nowhere is this more apparent than in the field of procedure and evidence and more specifically with regard to witness testimony and the production of documents. One particular aspect of this phenomenon is the request or requirement for a lawyer practicing under a civil law system to testify or produce documents in the course of proceedings before common law courts.
Requestsfor such testimony or production of documents raise the problem of the compatibility of such a request with the rules on professional secrecy. Civil law lawyers, along with other professionals including doctors and pharmacists, are often subject to a legal duty of professional secrecy, which is enshrined in the law. This is notably the case in Belgium where section 458 of the Criminal Code provides for fines and the possibility of imprisonment of up to three years for violations of the duty not to disclose and to keep confidential secret information obtained by the professional in the course of his/her professional activities.
Professional secrecy is general considered to be a rule which is necessary in order to protect the rights of the defence and, as such, is protected by the European Convention on Human Rights. In some jurisdictions it is also a rule of professional ethics.
The duty covers confidential information which the lawyer obtains in the course of his/her professional activities, including confidential information or documents disclosed to the lawyer by his/her client. The question as to whether or not the client can release the lawyer from his/her professional secrecy obligation remains delicate but the modern tendency in Belgium at any rate is to allow for such release where the information is necessary in order for the client to exercise its own rights of defence.
Section 458 does however provide for an important exception with regard to testimony in court, which is extended by analogy to the production of documents in court. Where such testimony or document production is legally required, for instance as a result of the disclosure rules applicable in foreign court proceedings, the lawyer remains free to decide whether or not to disclose and, if he/she decides to disclose there is no infringement of section 458. The lawyer is of course required to act in good faith but, provided he/she is required by law to disclose the decision remains with the lawyer. The rule will therefore apply where such testimony or disclosure is required but not where there is no legal requirement to testify or disclose the documents.