Unrestricted access to advocates' accounts poses a risk of client data disclosure — BCU

Information regarding transactions in the bank accounts of an advocate, a law firm, or a bar association from which clients can be identified, as well as the fact and subject matter of a request for legal assistance, the purpose of payments, and the amount of the fee constitutes attorney-client privilege. This rule applies regardless of whether the information also constitutes banking information and is in the possession of a bank.

The Bar Council of Ukraine reached these conclusions following its review of a parliamentary inquiry submitted at the request of a law firm. The issue was presented at the September 25 meeting by the Vice President of the UNBA, BCU Valentin Gvozdiy.

The petition concerned the enforcement of orders issued by an investigating judge. These orders granted detectives from the Economic Security Bureau temporary access to documents detailing all transactions across all accounts of law firms and legal offices over a period of several years. The access included information on the IP addresses of devices used to access the «Client-Bank» system, payment documents and materials regarding individuals authorized to act on behalf of account holders.

The BCU did not verify the legality or validity of the court decisions nor did it evaluate the evidence in the criminal proceedings. The subject of the review was compliance with the guarantees of the practice of law during the prosecution’s access to advocates’ banking information.

According to the Council’s assessment, unrestricted access to all transactions makes it possible to establish a complete list of law firms’ clients, the subjects of mandates, and the terms of payment for legal assistance, including with regard to individuals who are not involved in the criminal proceedings. At the same time, the rulings did not provide any rationale as to why the necessary data could not be obtained by other means — from clients of legal services, treasury agencies, or by limiting access to transactions with specific counterparties.

Access to documents regarding advocates’ accounts held at the bank constitutes temporary access to advocates’ documents within the meaning of Article 23 of the Law «On advocacy and the practice of law». Such access is permitted only if a number of conditions are met simultaneously, including a clear limitation of the list of documents to those relevant to the investigation, proof that the information cannot be obtained by other means, advance notification of the regional bar association, and ensuring the participation of its representative. Information not related to the proceedings must be separated and may not be used or disclosed, emphasized V. Gvozdiy.

Therefore, excessively broad access could pose a real threat of disclosing attorney-client privilege to an unspecified group of clients.

In light of this, the BCU has decided to appeal to the Prosecutor General and the Director of the Bureau of Economic Security to determine whether the court orders were complied with and what measures were taken to protect client information unrelated to the subject matter of the criminal proceedings.

Law enforcement agencies are urged to restrict access to such information, refrain from using it, and consider returning or destroying the relevant copies of the documents.

The BCU also considers it necessary to enshrine in law the participation of an advocate and a representative of the regional bar association in the consideration of motions for access to documents containing attorney-client privilege, as well as to provide for the possibility of appealing the relevant rulings.