Romanian legislation establishes the principle of protection of the confidentiality of information exchanged between the lawyer and its client through the concept of professional secrecy. The professional secrecy concerns knowledge and documentation in the possession of the lawyer only. As a result, documents relevant to a case are protected only when they are kept by a lawyer, not by the clients. Documents in the client’s possession are not generally protected, with the exception of the investigations of the Competition Council, in which case protection is recognized for the communications between the investigated undertaking and its lawyer, exchanged for the exclusive purpose of exercising the undertaking’s right of defence under the conditions in the Competition Law.
The concepts of legal professional privilege and professional secrecy in Romania are regulated by:
- Law no. 51/1995 regarding the organisation and exercise of the lawyer’s profession ('Lawyer’s Law') and the Statute of the Profession of Lawyer ('Lawyer’s Statute')
- Romanian Civil Procedure Code
- Romanian Criminal Code and Romanian Criminal Procedure Code, and
- Romanian Competition Law no. 21/1996 ('Competition Law')
Legal professional privilege under the lawyers' legislation
The Lawyer’s Law provides for the lawyer’s obligation of professional secrecy with regard to any aspect of a matter which was confided to him, unless otherwise provided by the legislation (Article 11 of the Lawyer’s Law).
The concept of professional secrecy is broadly defined by the Lawyer’s Statute as covering any type of information, in any form and on any medium, provided by the client to the lawyer with the aim of receiving legal assistance and with respect to which the client has requested the preservation of confidentiality, as well as any documents drafted by the lawyer containing or based on information provided by the client for the same purpose and which the client has requested be kept confidential (Article 228(1) and (2) of the Lawyer’s Statute).
Pursuant to article 10(1) and (4) of the Lawyer's Statute, the correspondence and information exchanged between the lawyer and the client, regardless of the support, cannot, under any circumstance, be brought as evidence in legal proceedings and cannot be depleted of the confidential character. Thus, the Lawyer's Statute does not allow for any intrusions of the State authorities in relation to the correspondence exchanged between the lawyer and his client. However, it is to be noted that the Lawyer's Statute has a legal force inferior to that of a law and its provisions are thus not enforceable in those cases where laws of a superior force, such as the Competition Law or the Criminal Code, provide for specific cases when the State authorities are not bound by legal professional privilege or by professional secrecy.
Lawyers cannot be called to testify and cannot provide information to any authority or person with regard to the matters entrusted upon them, except for when they have the prior, express and written approval of all clients having an interest in that respective matter (Article 45(2) of the Lawyer’s Law).
Legal professional privilege in the context of civil litigation
Under the Civil Procedure Code, the lawyer may not be called to testify about facts learnt in the course of performing his professional tasks. However, the client can allow the lawyer to testify as a witness before the court and provide information which would have been otherwise confidential and covered by professional secrecy (Article 317 of the Civil Procedure Code).
In addition, the court must reject a claim for filing a document in the case file where the disclosure of the document would infringe a legal obligation of preserving the secret (Article 294(1) par. 2 of the Civil Procedure Code).
Legal professional privilege in the context of criminal investigations
Written documents held by the lawyer or in the lawyer's office may only be taken by a prosecuting officer on the basis of a warrant issued according to the law (Article 34(1) of the Lawyer’s Law).
Based on a recent amendment to the Lawyer’s Law, written documents containing lawyer-client communications or written documents containing notes made by the lawyer regarding client defence related matters, cannot be taken or confiscated (Article 34 (2) of the Lawyer's Law).
The conversations and correspondence of the lawyer having a professional character may be intercepted or recorded only under the specific conditions and procedure provided by law (article 34(3) of the Lawyer's Law).
The relation between the lawyer and his client may not be subject to technical supervision, (see footnote 1) except for where there are indications that the lawyer himself is committing or preparing to commit certain specific crimes such as money laundering, tax evasion, corruption, terrorism, crimes against the financial interests of the European Union or in the case of other crimes for which the law provides the sanction of imprisonment for five years or more.
The Criminal Procedure Code expressly provides that professional secrecy can be opposed to the prosecutor during criminal proceedings (art. 306(6) of the Criminal Procedure Code).
Article 147(2) of the Criminal Procedure Code prohibits the retention or review of correspondence sent or received between the lawyer and the suspect, the person indicted or any other person defended by the lawyer, except for the case when the lawyer himself is committing or preparing to commit certain specific crimes such as money laundering, tax evasion or corruption.
Pursuant to art. 116(3) and (4) of the Criminal Procedure Code, a witness cannot be called to testify in relation to those facts or circumstances having a secret or confidential character, that may be opposed by law to judicial bodies, unless a waiver is obtained from the beneficiary or if there is a legal provision to the contrary.
However, in accordance with specific legislation regarding, for example, money laundering (Article 7 of Law 656/2002 regarding the prevention and sanctioning of money laundering and the establishment of certain measures for the prevention and fight against the financing of terrorism), a lawyer may be required to disclose information about his client’s identity and transactions.
Footnote 1: Pursuant to Article 138 of the Romanian Criminal Procedure Code, technical supervisions measures may consist in (1) interception of communications or of any other long distance communication means; (2) access to IT systems; (3) audio or video surveillance or photography; (4) location or observance by technical means.
Legal professional privilege in the context of investigations by the antitrust / competition authority
Legal professional privilege in the context of investigations by the competition authority (ie the Romanian Competition Council) was expressly regulated for the first time following the amendment of the Competition Law through Government Emergency Ordinance 75/2010 which entered into force on 5 August 2010. The legal framework is represented by Article 38 paragraphs (8) through (11) of the Competition Law and Article 24 of the Regulation regarding the organisation, functioning and procedure of the Romanian Competition Council.
In case of competition law investigations, to the extent the undertaking does not prove the privileged nature of the communication, the competition inspectors will seal and lift two copies of the document in question, together with the rest of the documents gathered during the dawn raid.
The President of the Romanian Competition Council will then urgently decide, on the basis of the evidence and arguments put forth by the investigated undertaking, whether the document will be deemed privileged or not. Should the President of the Romanian Competition Council decide to reject the privileged nature of the communication, the undertaking can challenge this decision before the Bucharest Court of Appeal within 15 days of the decision being communicated to the undertaking. The decision of the Bucharest Court of Appeal can be further challenged before the High Court of Cassation and Justice, within five days as of communication. De-sealing can only take place after the expiry of the time period in which the decision of the president of the Romanian Competition Council can be challenged, or, if challenged, after the court decision becomes final.
Legal professional privilege is also recognized in case of forensic inspections taking place at the headquarters of the Romanian Competition Council. A specific procedure in this respect is included in the Romanian Competition Council Procedural Regulation (including a maximum 10 working days term for the undertaking to indicate, in a reasoned way, the information that may be subject to the legal professional privilege). Same procedure above applies in case of dispute.