Colombian legislation acknowledges the principle of professional secrecy, which is constitutionally grounded1 and involves the obligation not to disclose any information, communications, documents or confidential data accessed by a professional in the course of their profession or activity.2
Professional secrecy is a right for clients and an obligation for law professionals. The Lawyers Disciplinary Code specifies that disclosing or using a client's secrets constitutes a breach of the lawyers' duty to act with loyalty to their clients. This obligation does not apply when the client has provided prior written authorization to disclose the information or when the lawyer discloses it to prevent the commission of a crime.3
Professional secrecy is intrinsically linked to fundamental rights. Particularly, it safeguards the client's rights to privacy and defense.4 The Constitutional Court has ruled that professions requiring a personal charter, like the legal profession, are subject to stricter confidentiality standards.5 These standards seek to ensure that communications and documents exchanged between lawyers and clients, as well as documents prepared by lawyers, are protected by professional secrecy.6
According to the Constitutional Court, professional secrecy is breached when confidential information is divulged to individuals who are not obligated to maintain its confidentiality.7 However, sharing such information with persons who are also bound by the responsibility to keep it reserved does not constitute a violation. Furthermore, the Constitutional Court has clarified that "divulge" means revealing information to individuals who do not have a duty to preserve its confidentiality.8
Furthermore, the Constitutional Court has determined that the obligation to maintain professional confidentiality does not necessarily entail an absolute prohibition on sharing information with third parties that have a legitimate interest in accessing it.9 In such instances, the duty to uphold the confidential nature of the information extends to those third parties.10
Additionally, the confidentiality of information cannot be upheld against judicial or administrative authorities that have the constitutional or legal authority to access such information to perform their duties. These authorities must maintain the confidentiality of the information they obtain.11 In a judicial context, failure to comply may result in adverse inferences against the noncomplying party.12
[1] Constitution. article 74, "Every person has the right to access to public documents, except as provided by law. Professional secrecy is inviolable." (free translation).
[2] Constitutional Court. Decision No. T-073A of 22 February 1996. Justice writing for the Court Vladimiro Naranjo Mesa. Also in: Constitutional Court. Decision No. C-538 of 23 October 1997. Justice writing for the Court Eduardo Cifuentes Muñoz.
[3] Lawyer Disciplinary Code, article 34(f).
[4] Constitutional Court. Decision No. 301 of 25 April 2012. Justice writing for the Court Jorge Ignacio Pretelt Chaljub.
[5] Constitutional Court. Decision No. 301 of 25 April 2012. Justice writing for the Court Jorge Ignacio Pretelt Chaljub.
[6] Constitutional Court. Decision No. 301 of 25 April 2012. Justice writing for the Court Jorge Ignacio Pretelt Chaljub.
[7] Cfr. Constitutional Court. Decision No. C-301 of 25 April 2012. Justice writing for the Court Jorge Ignacio Pretelt Chaljub.
[8] Constitutional Court. Decision No. T-073A of 22 February 1996. Justice writing for the Court Vladimiro Naranjo Mesa.
[9] Constitutional Court. Decision No. T-073A of 22 February 1996. Justice writing for the Court Vladimiro Naranjo Mesa.
[10] Constitutional Court. Decision No. T-073A of 22 February 1996. Justice writing for the Court Vladimiro Naranjo Mesa.
[11] Law 1755 of 2015, article 27.
[12] General Procedural Code, article 267.