The National Commission for Judicial Discipline determined when a screenshot of the messages was taken via WhatsApp It can be incorporated into the trials this tribunal is conducting, which are disciplinary against lawyers and officials of the judiciary.
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The Commission ruled on the case of a lawyer who, as part of a lack of support trial, asked the person he represented to pay the travel expenses for two witnesses who allegedly testified in the case for one million pesos.
The person filed a complaint and in the first instance the Tolima Section sanctioned him for four months, indicating that the man had actually asked for the position, that the witnesses cited were never motivated and that the lawyer violated the duty to act honestly. He challenged the decision, stating, among other things, that WhatsApp screenshots were illegally entered as evidence.
Secondly, himThe Commission stressed that the screenshots of WhatsApp messages and audios are valid “since they were not obtained in violation of the right to privacy regulated and therefore constitute a legitimate test.
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The decision made a number of clarifications on what is considered a legal and illegal test and indicated it, in disciplinary matters Those that are collected without the completion of substantial formalities must be excluded from the processes or with ignorance of the fundamental rights of the suspects.
However, he specified that not all procedural irregularities in the collection, practice and evaluation of evidence necessarily imply the violation of due process since “they do not have insignificant or innocuous errors, which would imply the exclusion of evidence”.
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the voice notes
With these details, the National Commission of Judicial Discipline he highlighted, first of all, that “in essence, and unlike a registration obtained without the consent of the owner, the so-called ‘voice notes’ sent via data message, as could be the case with applications such as WhatsApp, come from the owner of the message and, therefore, it is not logical that they were not obtained without their consent.
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And consequently, a ‘voice note’ sent by the sender is nothing more than the manifestation of the owner’s will to send a data message to the recipient, “only that it takes the form of a tape recording and, to that extent, in principle, a means of proof of this style would be permissible.”
In any case, the entity specified that “not all voice notes sent via an instant messaging system constitute by itself a lawful test but it is necessary to verify on a case-by-case basis that the right to privacy is not disregarded, for which it is necessary to verify the criteria adopted on the subject by constitutional jurisprudence.
When can the conversation between client and lawyer be proof?
Now, since it was a conversation between client and lawyer, something that has legal protection, the Commission also specified that not all conversations that take place are framed in an intimacy scenario because, although it does not always act as such, it plays a role. role role of social and public interest.
For this reason, the ruling states, «the communications held by legal professionals with clients, colleagues, public employees and, in general, with all those who have to interact in the exercise of their profession, do not correspond to the private sphere of their privacy. “but they are semi-private spaces and can be introduced in trials as long as the judicial authority so disposes.
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“In these strict terms and in the criteria of this college, email and electronic messaging applications are considered semi-private spaces, as long as they are used by lawyers to practice their profession. Therefore, the data messages sent through this type of semi-private spaces and by the disciplinary defender himself can be legitimately incorporated in the disciplinary action, as long as they are so decreed by the competent judicial authority “, reads the decision.
How do you know if the test is legal?
In these terms, the National Commission for Judicial Discipline affirmed that to establish whether the message contained in the act is considered lawful, or that it does not infringe the right to privacy, the judge must take into account the following criteria:
– If it is information that is intimate, sensitive or of interest only to a specific person in view of the activity carried out.
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– If the message was sent with the authorization of the lawyer under investigation, such as when he sent it himself.
-If the evidence has been decreed by a provision of a competent judicial authority.
The specific case
With these foundations laid, the Commission said that audio messages sent via WhatsApp thatwho contributed to the disciplinary proceedings against the lawyer in this case were not obtained without his consent and he further indicated that such messages do not contain intimate or sensitive information, but rather information relating to the relationship between the client and the lawyer.
In particular, these are interviews aimed at establishing the need to bear the costs for the transport of witnesses presumably necessary to carry out proper professional management.
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“Otherwise, these audio files were sent by the same regulated subject and were also decreed as evidence by order of the judicial authorityThe competent authority, which is why this piece of evidence is lawful, which implies the nullity of the full right and the consequent exclusion of evidence are not adequate ”, the Commission stated.
Regarding the screenshots provided by the client, the Commission stated that their nature is documentary and not indicative and that their incorporation as evidence does not require further formalities because they can be provided by the complainant or requested by the judge whoever disposes them. And, in this case, the screenshots were provided by the client, to the knowledge of the attorney in question, for whom he described them as legal
For this he confirmed the sanction of the suspension of the lawyer for four months in the exercise of the profession.
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