Analyzes the prevalence between the duty of professional secrecy and the interest in discovering the truth, in the context of civil proceedings.
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In the context of a probate case, one of the parties appointed a lawyer, in which case an agreement was presented and a distribution map was drawn up, and a homologatory sentence was handed down.
Subsequently, the lawyer appointed became incompatible with the client and the latter appointed a new lawyer.
Following this, an extraordinary appeal for review was filed as an attachment to the inventory process, in which the transaction ratified in the inventory was requested to be annulled, for which the Lawyer initially appointed was listed as a witness.
The lawyer refused to testify, under the terms of Article 417(3)(a) to (c) of the Civil Procedure Code, and the court judge considered his refusal to be legitimate, as he was covered by the professional secrecy provided for in Article 92 of the Bar Association Statute,
Consequently, and in disagreement with this decision, an incident of breach or lifting of professional secrecy was raised, under the terms of Article 135(3) of the C.P.P., applicable ex vi Article 417(4) of the C.P.C..
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Now,
As the aforementioned ruling explains,
"But if the right to refuse to testify on the grounds of the lawyer's professional secrecy is not an absolute right, it should only be broken in very exceptional cases and when highly relevant interests are at stake that cannot be satisfied by any other means.
Since the conflict between the interest in discovering the truth and the duty of secrecy must be resolved in the light of the overriding interest linked to the concept of indispensability for the discovery of the truth, it will have to be demonstrated that the interest that is to be protected clearly outweighs the fiduciary interest that will be broken by requiring a forced statement from the lawyer.
Given that the principle of cooperation with the court is intended here to protect the private property interests of the parties (and not public interests, as is necessarily the case in criminal proceedings), let's analyze the case at hand."
He went on to clarify that, with regard to the indispensability of witness evidence from the respective Lawyer, it would always be possible to provide evidence through the testimony and statements of the parties.
And, even if this were not the case, he stressed that "we cannot see how, in a civil case, the breach of confidentiality for the purpose of testifying against one's own client could be sustained in a case where the lawyer, then his agent, was incompatible with the client."
Furthermore, as Augsuto Lopes Cardoso points out, "a determining condition for analyzing a request for waiver/breach of professional secrecy is the verification of the exclusive defense of the client. A lawyer can never lend himself to testifying against a former client and, with that testimony, harm him".
He therefore concludes that "in the conflict between the duty of secrecy - whose interests in the case at hand appear in their full dimension, since, in addition to the interest of public interest related to the lawyer's function, the need to protect the interests of his client emerges here as pressing - and the duty to cooperate with the court, in order to ascertain issues of patrimony between the parties, the duty of professional secrecy should prevail" and, accordingly, dismissed the incident of breach of the duty of secrecy.
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Summary:
"I - A lawyer may never be allowed to testify in the main proceedings or in proceedings joined to them, in which he is, or has been, a legal representative and even if the mandate has been revoked or waived.
II - The incompatibility of roles becomes more acute when it is the opposing party who wants to be heard, in open conflict with the interests of their former client.
III - Since the object of the litigation is to ascertain the nullity or annulment of the transaction concluded in the case in question, based on the existence of an error on the part of the appellant caused by the lawyer, who was then his attorney-in-fact and with whom he was incompatible, and who was appointed as a witness by the opposing party, the duty of professional secrecy must prevail over the interest in discovering the truth, and the appellant's request to breach this secrecy must be rejected."
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