From this it is plain, as indeed seems inevitable, that the position in all member states is not identical. It is to my mind equally plain that there exists in ail the member states a recognition that the public interest and the proper administration of justice demand as a general rule that a client should be able to speak freely, frankly and fully to his lawyer. As it is put in Lemaire, Les Règles de la Profession d'Avocat:
"Il faut que le client 'puisse avoir, en son avocat, une confiance sans limite,' qu'il puisse 'négliger avec lui les précautions qu'on prend dans les affaires ordinaires'; qu'il ne craigne pas 'd'ouvrir son âme tout entière son défenseur et s'abandonner à sa foi.'"
Whether it is described as the right of the client or the duty of the lawyer, this principle has nothing to do with the protection or privilege of the lawyer. It springs essentially from the basic need of a man in a civilised society to be able to turn to his lawyer for advice and help, and if proceedings begin, for representation; it springs no less from the advantages to a society which evolves complex law reaching into all the business affairs of persons, real and legal, that they should be able to know what they can do under the law, what is forbidden, where they must tread circumspectly, where they run risks.
The fact that this principle of confidentiality between lawyer and client may be given effect to in different ways, and that it is not coextensive in its application at any point in time, in all the member states, does not mean that the principle does not exist. In my opinion it should be declared to be a rule of Community law. The way in which and the extent to which it applies in Community law and in relation to Community transactions and procedures needs to be worked out to achieve the best and most appropriate solution in the light not only of considerations of the practices of the various member states, but the interests of the Community and its institutions, member states and individuals which are subject to its laws.
It is universally accepted that confidential documents of the kind to which 1 have referred in the hands of the lawyer are protected. If one considers the real purpose of the protection and gets away from labels and procedures, like legal professional privilege and "secret professionnel" which may not give the whole picture. I can for my part see no justifiable distinction between such documents in the hands of the lawyer and in the hands of the client. If the lawyer has one copy and the client another, both should be protected. The request and the reply, if relating to legal advice, are of the same nature. To tell the client that if he leaves his documents at his lawyer's office they will be protected, but that, if he keeps them himself, they are not seems to me indefensible and likely to encourage, e.g. the giving of oral advice if it is unfavourable advice, and914
the destruction or transfer to the lawyer's office of documents. It would be quite extraordinary that if the lawyer's documents were, by chance, left at the client's premises, the day the inspector called, they must be produced, but that if the lawyer took his file away with him, they would not. In my opinion the rule covers communications between lawyer and client made for the purpose of obtaining or giving legal advice in whoever's hands they are and whether legal proceedings have begun or not. It covers also the contents of that advice (given orally or in writing), in whatever form it is recorded - whether in a letter or in a summary or in a note or in minutes.
18 However, the above rules do not exclude the possibility of recognizing, subject to certain conditions, that certain business records are of a confidential nature. Community law, which derives from not only the economic but also the legal interpenetration of the member states, must take into account the principles and concepts common to the laws of those states concerning the observance of confidentiality, in particular, as regards certain communications between lawyer and client. That confidentiality serves the requirements, the importance of which is recognized in all of the member states, that any person must be able, without constraint, to consult a lawyer whose profession entails the giving of independent legal advice to all those in need of it.
19 As far as the protection of written communications between lawyer and client is concerned, it is apparent from the legal systems of the member states that, although the principle of such protection is generally recognized, its scope and the criteria for applying it vary, as has, indeed, been conceded both by the applicant and by the parties who have intervened in support of its conclusions.
20 Whilst in some of the member states the protection against disclosure afforded to written communications between lawyer and client is based principally on a recognition of the very nature of the legal profession, inasmuch as it contributes towards the maintenance of the rule of 950law, in other member states the same protection is justified by the more specific requirement (which, moreover, is also recognized in the first-mentioned states) that the rights of the defence must be respected.
21 Apart from these differences, however, there are to be found in the national laws of the member states common criteria inasmuch as those laws protect, in similar circumstances, the confidentiality of written communications between lawyer and client provided that, on the one hand, such communications are made for the purposes and in the interests of the client 's rights of defence and, on the other hand, they emanate from independent lawyers, that is to say, lawyers who are not bound to the client by a relationship of employment.