Decision of the Council of State dated March 1, 2024
On Friday, the Council of State ruled on the appeal alleging abuse of authority against the circular issued by the Minister of Justice interpreting Article 56-1 of the Code of Criminal Procedure regarding searches of law firms, following the Law on Confidence in the Judicial System.
In this decision, the Council of State distinguishes between attorney-client privilege regarding legal advice and that pertaining to the preparation of a defense based on a temporal criterion.
It states, in fact, that "documents resulting from a lawyer’s advisory services provided after a client has committed an offense must be regarded—even if the client is not the subject of any criminal prosecution or charges at the time such advisory services are provided—as part of the preparation of a future defense and, as such, as falling within the scope of the exercise of the right to defense; the situation is different for documents resulting from a lawyer’s advisory services prior to any offense being committed by his client, which, since they do not fall within the exercise of the rights of the defense within the meaning of the second paragraph of Article 56-1 of the Code of Criminal Procedure, are not covered by attorney-client privilege and may, consequently, be subject to seizure under the conditions provided for in that article."
According to the Council of State, any advice provided by a lawyer after the offense has been committed must therefore be considered as relating to the exercise of the right to a defense.