Estonia's top court flags gaps in protecting attorney-client privilege
The Supreme Court of Estonia says laws need clearer rules for handling wiretapped lawyer-client calls after police recorded such conversations without notifying the attorneys.
The case stemmed from a complaint by attorneys Sander Potisepp, Küllike Namm and Kristiina Urb-Semjonov, whose client was under criminal investigation.
Police had wiretapped the client's phone calls, including those with their lawyers, which the complainants alleged violated their privacy and attorney-client privilege.
All three tiers ruled the complaint justified. The attorneys only discovered the wiretapping by chance when one visited police to review surveillance on the client. The Supreme Court said they should have been notified directly.
The Supreme Court's Criminal Chamber outlined how existing legislation can already safeguard fundamental rights, but called for clearer rules on safeguarding privileged communications obtained through surveillance.
A key dispute in court was whether privacy protections extend to lawyers' professional activities and when surveillance amounts to a serious breach of rights. Current law requires notifying those unintentionally caught up in surveillance only if their private or family life is significantly affected.
The Supreme Court cited European Court of Human Rights (ECtHR) case law, which treats professional work as part of one's private life, with the justices noting that work and personal lives often overlap.
Because attorney-client communications are specially protected by the state, the court said any interception constitutes a serious violation. The content of a call is irrelevant, as confidentiality applies even to the mere fact that a lawyer was contacted.
The court added that confidentiality protects not just the client but the integrity of the justice system, noting that lawyers can provide effective legal help only with their clients' trust, which is key to a fair trial.
Estonia's top court ruled that attorneys must be notified if intercepted calls clearly involve legal services and their identity can be reasonably determined — for example, if the phone number is listed on the Estonian Bar Association website or provided to investigators.
The ruling added that recordings containing privileged information must be preserved until the lawyer has reviewed them and decided whether to keep or destroy them.
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Editor: Mirjam Mäekivi, Aili Vahtla
