The lawyers are broke: professional secrecy is at stake!

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alawyer has a professional secret, without which it is often impossible to build a trust relationship. The relationship is similar to that of a doctor: the client complains more about himself because he knows that the co-worker must not recall any of it. It is therefore important that, in the case of the doctor, the patient, in the case of the lawyer, expands as much as possible of his case and of his situation so that the doctor or the lawyer can get a better picture of her visually. and develop such a relationship based on mutual trust. For the lawyer, that secret professional is now at stake.

it is not for the first time.. Professional secrecy has since long ceased to exist, in the case where the lawyer is confronted with money laundering or terrorism – where the journalist’s source protection also ceases. Last year, however, a further European Directive has been in place, which could further undermine professional secrecy, at least for those lawyers working for the financial sector.

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Indeed, there are still very aggressive financial products that are specialized in saving as much tax as possible. Needless to say, these products are meant for people with a lot of investment potential. However, these products are completely legal! Directive DAC 6 now foresees that certified intermediaries in such a case should notify the tax office. Among these intermediaries are in the main: expert- comptables, accountants, bankers, notaries, but also lawyers. However, the directive provides for a possible dispensation for the lawyers, whatever the government wants, but only in a first phase. Luxembourg Barreau writes:”But in a second step, the bill introduces an information requirement which is specific to lawyers …. ‘who will have to inform the tax authorities, anonymously, of the main elements of the tax system concerned, including by a reference to the name by which this device is known. This anonymity is however only a chimera since the Administration of direct contributions (with the support of the Ministry of Finance) affirms that the secrecy of the lawyer is not opposable to him. In this way, the tax authorities may therefore require nominative information on the customers targeted by the anonymous declarations “! This is disproportionate, says the barreau, not necessary, not adequate: tax authorities would have other opportunities to access the information, via the other so-called intermediaries, where some of them helped to set up the financial product.

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As said, it is probably about tax avoidance, but not about tax evasion. It is completely legal! Of course, one must wonder if such financial instruments should still be in place for more than 10 years after the Great Crisis, but then the question arises as well to the future of Luxembourg’s financial center. This is also written down by the Chambre of the civil servants and public employees in their opinions:

” By transposing Directive (EU) 2018/822, the Grand Duchy of Luxembourg is once again taking another step towards greater tax transparency between the Member States of the European Union. It remains to be seen whether the good intentions of the automatic and compulsory exchange introduced in the Member States are not likely to end up ineffective, by exempting the first-class profession in the field of tax planning from the obligation to declare, namely the lawyers.

In addition, in the context of the vicissitudes generated by Brexit, it is to be hoped that after its departure from the European Union the United Kingdom will comply with the same reporting obligations as those of the remaining 27 Member States, in order to avoid them “unfair tax competition”.

It is only subject to the above comments that the House of Public Officials and Employees agrees with the bill before it for opinion.”

In other words: the government would go beyond the directive again and would like to make it the most beautiful man in the international world to capture the image of the financial center. Looser would in this case be the lawyer’s professional secret. The asset is not even small!


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