In a decision not intended for publication (TF decision 7B_990/2024 of October 31, 2024), the Federal Court ruled that telephone conversations collected by means of postal and telecommunication surveillance (art. 269ss of the Swiss Code of Criminal Procedure) between a lawyer and a third party (in this case a co-defendant) for whom he is not the attorney-in-fact do not benefit from the protection of professional secrecy (art. 271 para. 3 of the Swiss Code of Criminal Procedure).
The scope of art. 271 para. 3 CCP is limited to direct communications between the person under surveillance and his or her own lawyer. Thus, conversations and exchanges between a third party and a lawyer, in this case the attorney of the co-defendant, are not protected by this norm, even if the communication falls within the scope of the lawyer’s professional secrecy, since there was no agency relationship between them. Furthermore, the voluntary and conscious disclosure by a lawyer of information subject to professional secrecy to a third party is not protected by art. 271 para. 3 CPP, as it leaves the sphere of protected secrecy (7B_874/2023 of August 6, 2024).
The scope of art. 271 para. 3 CCP is limited to direct communications between the person under surveillance and his or her own lawyer. Thus, conversations and exchanges between a third party and a lawyer, in this case the attorney of the co-defendant, are not protected by this norm, even if the communication falls within the scope of the lawyer’s professional secrecy, since there was no agency relationship between them. Furthermore, the voluntary and conscious disclosure by a lawyer of information subject to professional secrecy to a third party is not protected by art. 271 para. 3 CPP, as it leaves the sphere of protected secrecy (7B_874/2023 of August 6, 2024).
It should be noted, however, that this provision differs from the objects and documents that prosecuting authorities may sequester within a company. Indeed, art. 264 al. 1 let. c protects contacts between an accused person and persons bound by professional secrecy, such as attorney-client privilege.
