Newsletter
Upon Lee and Li’s Petition, R.O.C. Constitutional Court Hands Down Landmark Judgment Affirming That Attorneys’ and Clients’ Right to Communicate Confidentially and Freely Is Constitutionally Protected
Upon Lee and Li’s Petition, R.O.C. Constitutional Court Hands Down Landmark Judgment Affirming That Attorneys’ and Clients’ Right to Communicate Confidentially and Freely Is Constitutionally Protected
On June 16, 2023, the Constitutional Court rendered Judgment 112-Hsien-Pan-9 (“Constitutional Court Judgment”) to recognize, for the first time in Taiwan’s legal history, the Attorney-Client Privilege as a right enjoyed by both the clients and their attorneys, and declare that certain provisions of the R.O.C. Code of Criminal Procedure (“CCP”), which failed to provide for privilege, violate the Constitution. The Constitutional Court Judgment is a milestone in terms of establishing due process of law on human rights protection. As the petitioner of the case, Lee and Li is proud to have initiated the matter and deeply moved to have witnessed the making of history.
I. On May 30, 2011, Lee and Li’s Hsinchu Office was subjected to search and seizure by the Taipei City Field Division of the Investigation Bureau. During their search, the investigators read through email correspondence, along with other materials, between the firm and its clients, and even examined materials from cases irrelevant to the purpose of the search. Before seizing the materials, the investigators did not confirm whether they were germane to the purpose of the investigation. Furthermore, Lee and Li believed that the court ruling granting the search warrant was illegal and infringed the right of trust between defendants and their counsels and that the applicable provisions of the CCP were unconstitutional. After a lengthy litigation proceeding, the Constitutional Court finally rendered its judgment, vindicating the privilege as indispensable to criminal due process and the bedrock of client-attorney relations.
II. The Constitutional Court Judgment affirms that the Attorney-Client Privilege is protected by the Constitution and declares Paragraph 2, Article 122 and Paragraph 1, Article 133 of the CCP unconstitutional since “materials (such as documents and electromagnetic records) subject to the Attorney-Client Privilege were not excluded from the search and seizure [at issue].” The Constitutional Court Judgment requires the authorities to amend the laws for alignment with the Judgment within two years of its announcement. When conducting a search or seizure, judges, prosecutors, and all relevant personnel are to adhere to the holding and reasoning of the Constitutional Court Judgment.
III. The rationale behind the Constitutional Court Judgment significantly bears on human rights protection and is summarized as follows:
1. The Constitutional Court affirms that the Attorney-Client Privilege is to protect a defendant’s right to litigation, right to receive effective assistance and defense from a defense counsel, right against self-incrimination, and right to a fair trial, as well as the attorney’s right to work.
2. The Constitutional Court Judgment affirms that the Attorney-Client Privilege is not only enjoyed between a defense counsel and a defendant, but also between an attorney and a client who may be a potential criminal suspect and may be investigated and prosecuted by state agencies and therefore seeks legal assistance from the attorney.
3. In addition to face-to-face communication and written or electronic correspondence, materials such as paper documents and electronic records that are based on them are also shielded by the Attorney-Client Privilege.
4. The Attorney-Client Privilege does not apply when there is sufficient evidenceto prove that the attorney or defense counsel may destroy, fabricate, or tamper with evidence, or may collude with accomplices or witnesses.
5. Although the Constitutional Court recognizes that the procedures for conducting a search or seizure in attorneys’ offices under the current CCP do not violate the principle of due process as protected by the Constitution, it still requires courts to rigorously review search warrant applications and clearly define the scope of search and seizure when it comes to attorneys’ offices. According to the Constitutional Court, the courts should first instruct the law firm to hand over the materials sought; if search and seizure is necessary, the entire proceedings should be captured on audio and video recording devices.
The Constitutional Court Judgment is a landmark case for the protection of the right to litigation, right to work, and criminal human rights of the clients and attorneys in Taiwan. It is also expected to inspire Asian countries with a civil law system. We are honored to have played an active role in ushering in this historic moment and vow to continue serving our clients in the fields of constitutional human rights and criminal law at the industry-leading level of excellence set by us.
Lastly, to protect the rights and interests of our clients, we will monitor the subsequent developments for the amendment of the CCP for alignment with the Constitutional Court Judgment and how searches and seizures will be conducted.