The secret you cannot switch off

How we work

Why the obligation belongs to the lawyer

In Belgium the professional secrecy of a lawyer is protected by the criminal law, which places it in a different category from most professional duties. Breaching it is an offence. It extends to everything confided to the lawyer and to everything the lawyer becomes aware of by reason of the profession, which is wider than what a client actually says out loud, and in sensitive matters it extends to the existence of the relationship itself. It is also not limited in time: it survives the conclusion of the matter, the end of the professional relationship and the death of the client. A duty that expired would be close to worthless to anybody weighing up today whether to describe something difficult honestly.

The feature clients find strangest is that the secrecy is not simply theirs to waive. Because the obligation is of public order, the lawyer remains its keeper, and a request from a client to disclose is assessed rather than taken as authorisation. Stated coldly that sounds paternalistic, and in practice it is the opposite. A secrecy that a client may switch off at will is a secrecy that a client may be pressured, persuaded or compelled into switching off, by an employer, a family member, a counterparty or anyone else with leverage. Putting the duty beyond the reach of that pressure is what makes it reliable.

A closely related rule governs letters between lawyers, and it is the one that makes negotiation workable. Communications between lawyers are in principle confidential: they may not be produced in legal proceedings and may not be handed to a client as a document to be relied upon, subject to the limited categories the rules of the profession treat as official. The purpose is practical. If every exploratory sentence could be read back in court as an admission, no lawyer would ever make one, and almost every dispute would have to be fought to judgment. The consequence for a client is that the correspondence itself cannot be passed on, though its substance is reported. Around all of this sit the conflict rules, assessed at the level of the practice and applied before an instruction is accepted, because a conflict discovered late is far more damaging than an instruction declined early.