The obligation of secrecy is one of the most sensitive areas of the attorney-client relationship. In order to represent his client effectively, the attorney must be familiar with all facts and data relevant to the matter in hand and to the interests of the client.
The diversity of an attorney’s activities makes it difficult to give a comprehensive definition of data covered by attorney confidentiality. For the same reason, the Attorneys Act (no. XI of 1998), which defines attorney confidentiality, provides no guidelines in this respect. The Act provides only that the attorney’s confidentiality obligation extends to all facts and data of which he gains knowledge in the course of practicing his profession. Attorney’s confidentiality obligation. The scope of data subject to attorney confidentiality is in practical terms impossible to define item by item, because it spans the client’s personal and confidential business data (business contacts and the company’s revenue affairs and financial position), frequently data covered by bank and tax confidentiality (money movements, bank account debits, tax and contribution payments and returns data) and – in matters of family law or personal status – data relating to the family relationships or health of the client and – in some cases – of the adversely interested party.
The client thus undoubtedly has a relationship of trust with his legal representative which demands that the data he provides to his attorney should be treated in confidence.
The attorney’s confidentiality obligation involves all actions required to ensure that the information coming into his knowledge is not disclosed to an unauthorized third party. The attorney’s confidentiality obligation thus goes further than an “obligation of silence”, and applies to the handling of all (usually electronic or paper-based) data media produced by or given to the attorney and containing data subject to attorney confidentiality.
The attorney’s confidentiality obligation is independent of how or whether the attorney is under instruction from the client. This means that the attorney’s confidentiality obligation is established when the first attorney-client contact takes place. It is therefore not conditional on the client actually, formally instructing the attorney. It is established even if the client only approaches the attorney for advice and then ends the relationship without any further work being done. The attorney’s confidentiality obligation is independence from the client’s instructions also applies to the termination of instructions. The attorney is obliged to safeguard confidential data even after he has fulfilled the client’s instructions or the instructions are terminated by either the client or the attorney.
Data subject to attorney confidentiality is also to be protected from authorities investigating the attorney’s activities. This means that in the course of an official investigation of the attorney (e.g. search of premises by an investigating authority, tax inspection), the authority is not entitled to discover these data, indeed it is the attorney’s express obligation to protect from the authorities data subject to attorney confidentiality.
The attorney may be granted exemption from the confidentiality obligation solely by the party responsible for the data, i.e. the client, the client’s legal successor or a party authorized by law to represent the client.
The attorney’s confidentiality obligation – including the establishment and termination of the obligation as discussed above – is borne not only by the attorney in person but also by the employees of the attorney or law office (trainee attorneys, administrative staff) and attorney associations and their office bearers and employees,.
The attorney is liable to safeguard the confidential data entrusted to him. The competent Bar Association may launch disciplinary proceedings against an attorney who breaches confidentiality. The disciplinary council of the Association, if it finds the attorney to be culpable, may impose disciplinary a sanction, which may be a fine, or in more serious cases, expulsion from the Association. In addition to ethical accountability to the professional body, the attorney bears liability under material and criminal law. This means that financial and non-financial compensation may be claimed under the general rules of civil law from an attorney who breaches his attorney’s confidentiality obligation. The Hungarian Criminal Code does not treat breach of attorney confidentiality as a separate crime, and so the attorney is subject to the rules which apply to everyone, although there can be no doubt that the attorney…