Vol 18 (2021) - Issue 3

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Klaus Müller v Germany, No. 24173/18, 19 November 2020

Synopsis
In this case, the European Court of Human Rights (ECtHR) was faced with the question of whether an administrative fine imposed on a lawyer practising in Germany, who invoked the legal professional privilege to refuse to testify in a criminal proceeding against the former managing directors of his client companies, was compatible with Article 8 of the European Convention on Human Rights (ECHR). A core issue was whether the lawyer's duty of professional secrecy can be waived by express consent of the current directors instead of the former directors who communicated with and consulted the lawyer on legal matters on behalf of the companies. From the judgment of the ECtHR it follows that there are two opposite views among the judges.
Both recognise that a company is a figurative person and can only act through its agents, namely, its directors. The communication between a lawyer and its company client is actually conducted through physical persons, normally the company's directors. However, the debate is whether the attorney-client privilege between a lawyer and a company, as based on German law, can extend to the communications between the lawyer and the company's directors. As a commentator I concur with the majority of judges, which held that attorney-client privilege can be waived by the agent of a company, namely, its current directors, without the need to acquire consent from the company's previous directors.