May telephone conversations with the defence lawyer be intercepted?

1.The Right of the Accused

The right of the accused to avail himself of a defence lawyer at any stage of a lawsuit is one of the pillars of a rule-of-law principle. A client with no legal experience is provided with partisan counsel who, by means of his knowledge, is to establish a level playing field between the state and the accused. For this reason, there is a special state of mutual trust between the defence lawyer and client, which is protected in many ways. The defence lawyer has, for example, the right to refuse to give evidence on anything he is entrusted with in the scope of his work. He therefore cannot be turned into a witness against his own client

After the Federal Court of Justice and the Federal Constitutional Court have had to repeatedly deal with when and to what extent the mutual trust between defence lawyer and client may be intervened, the legislator reacted in 2008. Ever since, the particular mutual trust between a defence lawyer and a client is protected by law as per § 160a German Code of Criminal Procedure. This expressly rules an extensive limitation to gathering and admitting evidence. Not only is not permitted to intercept a defence lawyer; a recorded conversation may also not be admitted. If a conversation that is protected by the confidentiality of the lawyer-client relationship is recorded by accident during extensive telephone interceptions, this fact must be documented, the conversation deleted and a note made on this action.

telephone conversations

2. Exception: If the defender himself is suspected

The extensive protection does not always apply however. If there is the suspicion that the criminal defence lawyer is involved in a crime himself, which would justify ordering the monitoring of telecommunications, his conversation may be intercepted. If the defence lawyer is under the suspicion of money laundering, for example, possibly because he knew his fees come from his client’s drug trafficking, the otherwise protected telephone conversations and be intercepted and evaluated to clarify the crime.

In principle, telephone calls with the defence lawyer may not be intercepted. Yet, as soon as he is suspected of a serious crime, this protection is lost.