Modernisation of the Advocacy Act
The amendment to Act No. 85/1996 Coll., on Advocacy, represents a step towards the modernisation and simplification of legal practice in the Czech Republic. This computerisation and simplification of the processes in the legal profession will enable lawyers and their clients to use modern technologies for more efficient solutions while strengthening the confidentiality of the client-lawyer relationship. The changes reflect the growing need for digital solutions that bring faster and more flexible access to legal services. The amendment focuses in detail on confidentiality conditions, and expands the areas in which confidentiality must be maintained. The amendment also regulates the provision of legal services in situations of potential conflict of interest or introduces new possibilities for remote client identification.
The Czech Bar Association has been working on the draft amendment since 2021, and after referring the draft to the Ministry of Justice and commenting on it, the Government discussed and approved the draft amendment on 10 January 2024, which is now heading to the Chamber of Deputies.
First of all, the amendment provides for strengthening the confidentiality of communication between the attorney and the client. Confidentiality is one of the basic attributes without which the provision of legal services could not function properly. A new section 3a is inserted into the Act, which provides that all information communicated between a client and a lawyer in connection with the provision of legal services is confidential. At the same time, information obtained or created in the course of the practice of advocacy or in immediate connection with it is confidential if information about the content of the communication or the legal services provided can be ascertained from it. If this information is located elsewhere than with the lawyer, it will have to be expressly marked as confidential to make it clear that it enjoys this protection.
The amended provision of § 3a contains the addendum "if such confidentiality is in the interest of the client" at the end of paragraph 1. Thus, not every piece of information exchanged between a lawyer and a client will be subject to confidentiality. This will be the case where it is not objectively information that could be misused to the client's disadvantage. This category will include, for example, publicly available information or statistical data of a general nature. Conversely, in cases of information about planned transactions or business strategies and know-how, there will be an objective interest in protecting such information, as its leakage may have negative consequences for the client's market position.
Thus, the amendment strengthens the protection of confidentiality for clients in the provision of legal services by specifying which type of information is subject to protection and in which cases such information may be used. In the current form of the Advocacy Act, the protection of confidential information is regulated through the confidentiality institute in section 21, which applies to the advocate, his/her employees and other persons involved in the provision of legal services, but the new section 3a extends the protection of confidential information under paragraph 3 to anyone who obtains confidential information. He or she may not misuse or disclose the information to another person without a lawful reason or the consent of the client in question.
The amendment also introduces an interesting novelty, namely the possibility for a lawyer to provide legal services under certain conditions even in the event of a conflict of interest. The current legislation imposes an obligation on a lawyer to refuse to provide legal services, inter alia, in cases where the lawyer may, on the basis of previous contact with the other party to the case, have information which he or she would not otherwise have and which could unduly favour the current applicant for legal services (Article 19(1)(a) to (c)).
Newly, even in cases where there is a conflict of interest as defined above, the lawyer will not be obliged to refuse to provide legal services if all the persons concerned agree in writing and the lawyer informs the persons concerned in advance of all the relevant circumstances of the case. A further condition is that the provision of legal services, even in the event of an impending conflict of interest, must not be to the disadvantage of the weaker party and must not jeopardise the rights and legitimate interests of the persons concerned or worsen their position. Thus, this procedure will not be possible, particularly in consumer disputes, if it is to the detriment of the consumer. Consent to the above may be withdrawn by the person concerned at any time, but consent withdrawn may not be re-granted.
With regard to computerisation and increased flexibility in the provision of legal services, the amendment introduces the possibility of remote connection in situations where the Advocacy Act requires proof of the identity of the client or another person. Lawyers will thus now be able to identify a client via videoconferencing while using means for electronic identification, which will greatly simplify the process related to the obligation to identify clients.
The amendment also confirms the fact, already in force since 2023, that lawyers can provide authorised conversions without passing a professional examination. Until now, this possibility resulted from an interpretative opinion contained in a memorandum on the performance of authorised document conversion signed by representatives of the Czech Bar Association and the Ministry of the Interior.
The last significant change in the area of electronicisation is the regulation of the so-called e-legalization, i.e. official verification of electronic signatures. Lawyers will now be authorised to officially verify electronic signatures in the same way as public administration contact points (notaries, municipal authorities, post offices, etc.). In the case of e-legalization, the lawyer will not be able to be represented by a law clerk. In connection with the verification of e-signatures, lawyers will be entitled to use data on persons in the basic population register to the extent necessary to carry out this task.
The above-mentioned changes are a welcome change that will bring greater efficiency to the world of legal services and bring the Czech legal profession closer to digital reality.
Most of the amended provisions could come into force as early as 1 July 2024. The provisions governing the declaration of authenticity of electronic signatures are not scheduled to come into force until 1 January 2025.
Responsible Attorney: Mgr. Oliver Uraz, LL.M., Matěj Morávek contributed to this article.