Analysis
14 July 2022

Attorney-client privilege: an in concreto assessment of documents, allowing to benefit from the protection of attorney-client privilege

In a significant decision dated 26 January 2022, the Criminal Division of the Court of Cassation reviewed the principles of attorney-client privilege and extended this privilege to documents and exhibits not directly emanating from lawyers or not directly addressed to lawyers.

 

The communications between citizens and their lawyers are the basis of the rights of the defence. Without protecting the secrecy of these confidences, no citizen, elected official, company or individual is guaranteed that he or she will be given the freedom to consult a lawyer to protect his or her rights”.[1]

Attorney-client privilege is at the forefront of the rights of defence and is one of its strongest guarantees. An article enshrining lawyers’ professional secrecy for all of their defence and advisory missions[2] was recently introduced into the preliminary article of the French Code of Criminal Procedure as a result of the adoption by the French National Assembly of the bill for trust in the judicial institution[3].

In this sense, the Court of Cassation recently had the opportunity, in a judgement of 26 January 2022, to revisit the notion of the attorney-client privilege and to further refine its contours.

 

I. From the 1971 Act to the Internal and National Regulations, the scope of attorney-client privilege has been extended

 Attorney-client privilege was enshrined in Article 66-5 of the Law of 31 December 1971[4]. This article stipulates that in all matters, both in advice and in defence, consultations and correspondence sent by an attorney to his client or intended for the latter are covered by professional secrecy[5]. This professional secrecy also applies to correspondence between an attorney and his colleague, except for correspondence marked as “official”[6]. The article specifies that interview notes and more generally all documents in the record are covered by professional secrecy[7].

On this basis, Article 2 of the National Internal Rules of the Legal Profession (“NIR”) takes up this general principle of professional secrecy of attorneys while detailing its application and scope. This article states that if the attorney is the necessary confidant of the client, it is mainly because he is bound by general, absolute and unlimited professional secrecy[8].

The NIR specifies, in relation to the Law of 31 December 1971, hat all forms of exchange, correspondence and advice between the lawyer and his client or between the lawyer and his colleagues are concerned (paper, fax, electronic)[9].

It also adds that all information and confidential information received by the lawyer in the exercise of the profession[10], but also the names of his clients and his agenda[11], as well as “pecuniary settlements and all handling of funds carried out in application of Article 27 paragraph 2 of the Law of 31 December 1971 [12]” and “information requested by the auditors or any third party (information that can only be communicated by the attorney to his client[13]” are covered by this professional secrecy.

Any breach of the attorney’s professional secrecy is punishable by one year’s imprisonment and a 15,000 euros fine[14].

However, there are some exceptions provided for in Article 226-14 of the French Penal Code allowing for the lifting of professional secrecy[15]. For example, an attorney has the right to inform the judicial, medical or administrative authorities of deprivation or abuse (including sexual assault or mutilation), of which he has knowledge, inflicted on a minor or on a person who is unable to protect himself by reason of age or physical or mental incapacity[16].

However, although the scope and limits of attorney-client privilege in France seem precise and established, a recent decision by the Criminal Division of the Court of Cassation may extend it further.

 

II.  The Court of Cassation assesses in concreto documents and exhibits in order to allow them to benefit the attorney-client privilege

 The judgment in question was issued by the Criminal Division of the Court of Cassation on 26 January 2022[17].

In this case, several companies were investigated for a system of prohibited cartels between manufacturers, wholesalers and major retailers in the distribution of household appliances[18].

On 21 May 2014, for the purposes of the investigation, a liberty and detention judge of the Paris Court of First Instance authorised by order, in accordance with Article L450-1 of the French Commercial Code[19], visits and seizures at the premises of one of these companies[20].

During these investigations, the investigators seized e-mails exchanged between the company’s attorneys, the content of which detailed a defence strategy drawn up by the company’s attorneys.

On 5 June 2014, the company subject of these visits and seizures filed an appeal with the First President of the Paris Court of Appeal to have them annulled[21]. By order dated 8 November 2017, the First President dismissed this appeal while also deciding to cancel the seizures of certain documents and correspondence, with regard to respect for professional secrecy and confidentiality of exchanges between an attorney and his client, with a prohibition for the Competition Authority to keep a copy and make any use of it[22].

In the judgment of 26 January 2022, the Criminal Division of the Court of Cassation had to ensure the legality of such decision, even though the e-mails were sent by the company’s in-house counsel.

The applicant argued these e-mails were not from or addressed to an attorney and therefore should not benefit from the confidentiality of exchanges attached to attorney-client privilege[23]. It recalled that secrecy applies only to “strict exchanges between an attorney and his client, and that the defence rights do not preclude the seizure of documents falling within the scope of judicial authorization even if they refer to statements made or written by an attorney[24]”. In his view, the First President of the Paris Court of Appeal had therefore “wrongly extended the confidentiality of documents that were not covered by it[25]”.

The Court of Cassation dismissed the appeal, confirming the reasoning adopted by the First President of the Court of Appeal. In the end, it did not matter that the documents did not originate from or were not intended for an attorney, since the mere fact that they contained a defence strategy established by attorneys was sufficient for them to be protected by professional secrecy[26].

Finally, it recalled that Article L450-4 of the French Commercial Code, which authorizes agents to seize documents and computer media on a company’s business premises, does so, under the guide of respecting the defence rights[27].

Consequently, the Court of Cassation validated the reasoning of the First President, who considered that “the confidential data covered by the secrecy of correspondence exchanged with an attorney and contained in the seized documents constituted the essential object[28]”.

According to the doctrine, the Criminal Chamber, through this decision, affirmed that “the content could prevail over the quality of the persons between whom the information was exchanged, validating an analysis in concreto of the exchanges rather than an exclusively in personam approach[29]”.

 

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