Can I be forced to disclose client communications under Portugal's professional secrecy?

Hello

As a lawyer in Portugal, you are bound by a strict duty of professional secrecy (sigilo profissional), which is considered a matter of public interest and a fundamental right of the client.

The core legal framework is defined in the Statute of the Bar Association (Estatuto da Ordem dos Advogados - EOA), approved by Law no. 145/2015. Below is an overview of the limits and the specific procedural steps you must take to protect your client.

1. Scope and Limits of Professional Secrecy
Under Article 92 of the EOA, you are obligated to keep secret all facts that come to your knowledge through the exercise of your profession.​

What is covered: This includes facts revealed directly by the client, facts learned from other lawyers, and documents or objects related to those facts.​

Extension: The duty extends to all your employees and collaborators.​

Limits (Exceptions): Secrecy is not absolute, but disclosure is highly regulated. It is only permitted when "absolutely necessary" for the defense of the dignity, rights, and legitimate interests of either the lawyer or the client.​

2. Scenario A: Court Demand for Testimony or Documents
If a court (or other authority) orders you to testify or submit documents outside the context of a search warrant (e.g., you receive a notification to appear as a witness):

Duty to Refuse: You must initially refuse to disclose any confidential information, citing Article 92, no. 1 of the EOA. You cannot simply comply with a court order or a client's waiver; the secrecy belongs to the profession as much as the client.​

Incident of "Quebra de Sigilo": If your refusal is challenged, the court or the interested party may raise an "Incident of Breaking Secrecy" (Incidente de Quebra de Sigilo) under Article 135 of the Code of Criminal Procedure (CPP).​

The decision to lift your secrecy belongs exclusively to a Superior Court (e.g., Tribunal da Relação), not the first-instance judge.​

The Superior Court weighs the conflicting interests (e.g., the pursuit of truth in a serious crime vs. the trust in the legal profession).​

Voluntary Disclosure: If you believe disclosure is necessary to defend your own or your client's rights (e.g., to collect fees or defend against a liability claim), you must first request authorization from the President of the Regional Council (Presidente do Conselho Regional) under Article 92, no. 4 of the EOA. You cannot disclose without this specific authorization.​

3. Scenario B: Search and Seizure (Busca e Apreensão)
If the court demand comes in the form of a police search of your law firm, the EOA provides specific procedural safeguards to prevent immediate access to client data.

Mandatory Presence: A search in a law firm must be decreed and presided over by a Judge (Juiz) and must be attended by a representative of the Ordem dos Advogados (usually the President of the Local Council or a delegate).​

Reference: Article 75 of the EOA.

Prohibited Items: Correspondence between you and your client generally cannot be seized unless it relates to a crime where you (the lawyer) are formally an accumulated suspect (arguido).​

Reference: Article 76 of the EOA.

The "Reclamação" Mechanism: If the judge attempts to seize confidential documents, you (or the Ordem representative) must immediately present a complaint (reclamação) under Article 77 of the EOA.​

Effect: The judge must stop the diligence regarding those specific documents.

Sealing: The documents must be placed in a sealed envelope (volume selado) without being read or examined by the investigators or the judge at that moment.​

Decision: The sealed documents are sent to the President of the Tribunal da Relação, who will then decide whether the secrecy should be lifted or the documents returned to you.​