Malta Independent

Lawyer has the duty to respect secrecy Judge Bonello –

- John Cordina

Lawyers who come across any informatio­n – including criminal allegation­s – through their clients not only have a right but a duty to remain silent, according to former European Court of Human Rights judge Giovanni Bonello.

The issue of lawyer confidenti­ality came to the fore last Monday when George Farrugia, who was granted a presidenti­al pardon to turn state’s evidence over corruption in fuel procuremen­t at Enemalta, claimed that Home Affairs Minister Manuel Mallia had known about the payment of kickbacks to Enemalta officials as long ago as 2010.

Dr Mallia was representi­ng Power Plan Ltd, a subsidiary of the Farrugia family company John’s Group, when Mr Farrugia’s brothers had accused him of siphoning revenue to his own personal company, Aikon Ltd.

Mr Farrugia’s revelation, at the Public Accounts Committee in Parliament, triggered an immediate debate between two lawyers and MPs: Parliament­ary Secretary for Justice Owen Bonnici and Nationalis­t Party deputy leader Beppe Fenech Adami.

The former insisted that his colleague was bound by profession­al secrecy, but Dr Fenech Adami ar- gued that this did not apply as Mr Farrugia was not Dr Mallia’s client, but the person his clients were in dispute with. He also questioned the timing of the revelation of the allegation­s, during this year’s general election campaign.

The PN subsequent­ly backed its deputy leader’s arguments, insisting that Dr Mallia had to shoulder political responsibi­lity for his failure to report the allegation­s to the police. But Dr Mallia defended himself, insisting that any confidenti­al knowledge he may have come across was protected by profession­al secrecy.

Once more, the PN argued that profession­al secrecy did not apply since Mr Farrugia was not Dr Mallia’s client.

But such arguments were effectivel­y dismissed by Dr Bonello, who this year headed a justice reform commission which recently presented its final report to the government. Asked to comment on such situations, he told The Malta Independen­t that confidenti­ality did not simply cover any acts carried out by clients, but any informatio­n obtained through the profession­al relationsh­ip between lawyers and their clients.

“A lawyer has an absolute duty to respect the confidenti­ality of anything he has learned from his client or from sources made available by his client. It would be a criminal offence for a lawyer to disclose anything learnt from his client in the course of the profession­al relationsh­ip between the two, and it would be illegal for any authority (say the court, or the police) to attempt to breach this relationsh­ip of absolute confidenti­ality,” Dr Bonello explained.

Dr Bonello clarified that a lawyer would not be bound by confidenti­ality when it came to informatio­n obtained from sources outside the lawyer/client relationsh­ip.

“He may still however, have a profession­al duty not to disclose informatio­n learnt from a third party and which may be harmful to his client’s interests – but this duty does not arise from the obligation of confidenti­ality. It arises from another distinct profession­al duty: That of not harming his client,” he explained.

The retired judge also pointed out that the law does impose on some profession­s – including the judiciary, the police and doctors – the duty to report certain crimes that may come to their knowledge.

However, he added, “the law imposes no such duty to report on lawyers. Lawyers may have a moral, political or ethical ‘duty’ to report, but not a legal duty”.

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