Lawyer has the duty to respect secrecy Judge Bonello –
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”.