March 6, 2021

The limits of professional secrecy | Economy

The limits of professional secrecy | Economy



The personal exagger of Donald Trump Michael Cohen acknowledged last August that he paid 130,000 dollars (110,000 euros) to the porn scandal Stormy Daniels and 150,000 (127,000 euros) to the ex-model Karen McDougal, by order of the US president, to hide the affaires that both They would have stayed with the president. If confirmed these payments, allegedly with campaign money, Trump would have broken the law.

The plea agreement signed by Cohen does not oblige him to testify against the president, but neither does it prevent him from providing information to prosecutor Robert Mueller, who investigates Russian interference in the 2016 elections. Therefore, Cohen may collaborate with the public prosecutor, giving him the information he has about Trump to obtain benefits to lower his already predictable sentence.

The lawyer's revelations have not been limited to a framework of collaboration with the judicial investigation. Weeks before his conversations with the prosecution, Cohen leaked to CNN the recording of a conversation with Trump himself in which they agreed to pay McDougal.

Beyond the positive impression that collaboration with justice can generate, Cohen's action clashes frontally with one of the fundamental principles that govern the work of lawyers: professional secrecy. In the relationship of trust and confidentiality that should prevail between the lawyer and his client, "the defendant must feel that the conversations with his lawyer are reserved, which are protected by professional secrecy," says Rafael del Rosal, lawyer and expert in professional deontology. The opposite would be to admit that the lawyer became a proof of charge for his client, when his work "is not to accuse, but to defend his client," he adds.

Right and duty

In Spain, confidentiality is a basic presupposition for the right to defense to develop correctly. A fundamental right that, as reiterated by both constitutional jurisprudence and the European Court of Human Rights, guarantees the development of a fair trial and the proper functioning of justice. Moreover, professional secrecy is a right and a duty of lawyers. They must guard the information they know about their client, even after the professional link has been terminated. In fact, failure to comply with this can mean a crime of revealing secrets punishable by imprisonment of one to four years and professional disqualification from two to six years.

Despite this, it is not an absolute right. There are certain exceptions provided in the law that free the lawyer to keep the secret. One of them is the one regulated in the Money Laundering Prevention Law, which specifies that lawyers who participate in certain operations are obliged to collaborate with the Sepblac (Executive Service for the Prevention of Money Laundering) when they detect signs of money laundering. .

The tax transcendence was the argument used by the National Court, in a ruling of 2011, to justify a lawyer providing information about an operation of his client before an inspection requirement. According to the resolution, the duty of collaboration with the Treasury would be void if the data that the lawyers had of their clients were covered by the obligation of secrecy. Professional secrecy is restricted to those that are confidential, strictly personal, intimate and without patrimonial character.

It may also happen that the lawyer considers it necessary to disclose information provided by his client in order to avoid a greater evil, his own or someone else's. The Code of Ethics of the Law provides that, in cases of extreme seriousness and in which irreparable damage may be caused, the lawyer may contact the dean of his College to know how to proceed. For Del Rosal, this route should never be used to lift professional secrecy. "Although the duty of secrecy may be prejudicial to him, the lawyer must die by silence; It is one of the risks of the profession, "he says.

What does not cover the secret is the information that a professional has about the counterpart derived from a previous judicial process. Even though this has been provided by your own client. The Supreme Court recently rejected that such action could be considered a crime of disclosure of secrets. The "mere indiscretion" does not always imply a legal infraction, so it is possible to introduce in a process data relating to prior complaints or judicial resolutions of the parties, without thereby breaking the duty of secrecy, he said.

Interference in private life

Another of the controversial actions in the case of Trump's ex-lawyer, Michael Cohen, is the registration of his firm, which allowed the seizure of almost four million files. The information contained in these documents may also be protected by professional secrecy between lawyer and client.

In Europe, the Human Rights Tribunal, in a similar conflict (the Ililla Stelanor case versus Bulgaria), determined that it involved interference in the private life of the lawyer. However, as the Spanish Supreme Court has pointed out regarding the registration in a law firm in the framework of the investigation of the Malaya case, the professional secrecy of the lawyers can be limited by judicial decisions when the lawyer is one of those investigated. In addition, it is required that the judicial decision be duly justified, be proportionate to the circumstances of the case and protect the right of defense of third parties.

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