Professional Confidentiality

Article 321 of the Criminal Code stipulates :

 

Violation of professional confidentiality
1. Lawyers, […] defence lawyers, notaries, legal clerks bound by professional confidentiality by virtue of the Code of Obligations, […] as well as their assistants, who reveal confidential information obtained in the course of their profession, or confidential information they learn in the exercise of their profession, will, if reported, be liable to imprisonment or a fine. […]
Revealing confidential information is still punishable even if the agent no longer exercises his/her profession or has finished his/her studies.
2. Revealing confidential information is not punishable if it is done with the permission of the party involved or if a higher authority or monitoring body issues written permission to the holder of the confidential information.
3. There are certain exceptions to the provisions of federal and canton legislation creating an obligation to inform an authority or to give evidence in a court of law."

 

Article 3 outlines the practices of the Geneva Bar Association and stipulates that :

 

" The lawyer must be scrupulous in maintaining professional confidentiality. Any confidential information received during the exercise of his/her profession is sacred. (...) He must refrain from acting as a witness in relation to a fact which he knows personally, even from the opposing party, or about the opposing party, in the exercise of his/her profession. He may only divulge confidential information - without ever being obliged to - with the express permission of their client given freely, or, if the Bar Supervisory Board authorizes a waiver. In the latter scenario, the lawyer will first apply to the President who in turn, will send his/her request, with an opinion, to the Bar Supervisory Board.
The lawyer will only request this authorisation if overriding public or private interests demand this authorisation, including the situation in which a lawyer’s conduct has been questioned and the only way to defend himself is to reveal certain facts that he became acquainted with during the exercise of his profession. Professional confidentiality survives after the conclusion of legal proceedings and the termination of the retainer. It applies to the entire staff of the law firm to whom it is advisable to issue regular reminders to this effect. "

 

The duty of professional confidentiality is not limited in time but survives beyond the termination of the retainer, regardless of the reason for its termination.

 

Nevertheless, professional confidentiality may be waived if the client gives his consent or if there is a decision issued by the competent authority. Even in the scenario in which the lawyer is freed from professional confidentiality by the client, the lawyer remains free to decide whether or not to divulge information covered by the aforementioned duty.

 

The guidelines of the Geneva Bar Association provide practices and customs relative to article 3 on lawyers who act as witnesses in the framework of criminal proceedings :

 

" The lawyer’s obligation to respect professional confidentiality is absolute in criminal matters. Lawyers are not authorised to act as witnesses before a magistrate. Lawyers are not authorized to give evidence to an investigative magistrate, nor to a judicial authority.
If a lawyer is summoned by an investigative magistrate, or by a judicial authority, the lawyer must comply with the summons but refrain from revealing information pertaining to his professional activities as a lawyer. The lawyer may express himself if his client releases him from professional confidentiality but on the proviso that this does not encroach on the lawyer’s obligation to respect professional confidentiality towards third parties.
Should there by any doubt over the nature of one’s activities or the implications of professional confidentiality, lawyers should submit the matter to the Bar Supervisory Board and inform the investigative magistrate or the judicial authority prior to doing so. "

 

With regard to lawyers who are Board members of companies, the Geneva Bar Association stipulates, moreover, that although professional confidentiality covers information obtained during the course of a client relationship, it does not cover information obtained while administering a company because activity of a predominantly business nature is not subject to professional confidentiality.

 

In the case of a conflict between the duty of professional confidentiality and the obligation to provide information or testify (article 321 paragraph 3 CP), the agent must respect the principle of proportionality when weighing up the choice between confidentiality and bringing to light facts for the client, bearing in mind that the convention is to respect professional confidentiality.