Should a law firm run by an advocate or legal counsel enter into data processing agreements with clients?

ANSWER

A law firm should not enter into a data processing agreement with its client in connection with the provision of legal assistance related to conducting court proceedings. An advocate or legal counsel practising in the statutorily prescribed forms is not a processor with regard to the processing of data related to the provision of legal assistance. An argument in favour of this position is that the essence of a processor is subordination to the controller's decisions regarding the processing of personal data.

In addition, providing legal services in a manner consistent with the law and ethical rules, while maintaining professional secrecy, requires independent decision-making by the professional representative. Furthermore, a lawyer following the client's instructions (acting as the data controller) would create a risk not only of complications in performing professional duties, but also — and perhaps above all — of breaching ethical rules.