Attorney-Client Privilege

Héctor Tinoco Jaramillo

The purpose of this article is to analyze professional secrecy as it applies to the relationships between attorneys and clients.

In the first section of this analysis I will introduce general concepts with respect to professional secrecy which apply to attorneys as well as to other professionals such as medical doctors.

The second section of this analysis describes the characteristics of attorney-client privilege. This section will refer to the matter at hand, both from a legal ethics point of view and from the perspective of the positive law in force.

Finally, the third section of this analysis will describe the manner in which the attorney-client privilege is addressed in the different codes of ethics for lawyers.

In practice, this subject can usually be found in those chapters dealing with the general principles of legal ethics.

As explained by Ángela Aparisi Miralles in her book “Ética y Deontología para Juristas” [Ethics and Deontology for Lawyers], etymologically the word “Deontology” means the study of that which is an obligation or a duty. The term is composed by the Greek words deontos which means obligation or duty and logos which means treaty or speech. Thus, it refers to that part of philosophy which is concerned about the origin, nature, and purpose of duty, as opposed to anthology which refers to the study of the nature, origin, and purpose of being.

Currently, deontology mainly refers to the study of duties which emerge when practicing professions which are considered public interest professions, which require a relationship with the client or the patient, and which are freely exercised as monopolies since they require the professional to have a degree.

From that perspective, the deontological rules are basically professional ethics requirements. Therefore, just as it occurs with moral rules, deontological rules are taught to us as duties of conscience. Thus, as opposed to legal precepts, deontological rules as well as ethical principles precede the former and, in principle, bond the individual to the binding effect of the moral rule. Consequently, they establish criteria and parameters regardless of the existence of rules (basically deontological codes) which sanction or not the failure to comply with said duties.

The history of professional deontology has been intricately linked to the existence of deontological codes. The foregoing, to the extent that in various occasions, only those rules which appear in a deontological code are considered deontological rules.

In my opinion, the existence of non-codified duties which compliance is essential for the profession, is evident. Terms such as probity, prudence, and honor, are too broad to limit their scope to casuistry formulas.

In any case, and rejecting the strict equalization between deontological rule and codified deontology, it is necessary to admit that said codes have been and currently are valuable instruments which favor the publicity, certainty, and efficiency of deontological rules. Therefore, this analysis will refer to several of the referred codes.

As will be indicated below, the concept of professional secrecy has transcended beyond the deontological scope and is currently regulated in several laws.

It is precisely when the scope of said laws is discussed that the professional secrecy is threatened. Due to the increase of crimes related to money laundering, terrorist financing, and drug trafficking, the possibility of exempting lawyers from protecting the attorney-client privilege has been suggested.