The professional secrecy threatened by recent case law on seizure
Bastille Day Newsletter 2021 - Enforcement & Court Decisions
Professional secrecy, provided for in Article 66-5 of French Law dated 31 December 1971[i] and included in Article 2 of the National Rules of Procedure for the Legal Profession (“RIN”)[ii], guarantees the confidentiality of communications between the lawyer and his client, and thus constitutes an essential condition for establishing a trusting relationship with the client and to ensure the best execution of a lawyer’s mission, e., the exercise of the rights of defense, a democratic guarantee[iii].
Nevertheless, professional secrecy has recently been threatened by case law regarding seizures by supervisory authorities and in particular with two specific decisions of the French Supreme Court (“Cour de cassation”) dated 4 November 2020[iv] ,and 25 November 2020[v].
In the first decision, the appeal concerned a decision of the Delegate of the first president of a Court of Appeal to annul the seizure of attorney-client correspondences by the French financial markets’ authority (hereinafter “AMF”), on the basis of article L.621-12 of the Monetary and Financial Code[vi], in the offices of a company and in directors’ homes, suspected of offences of insider trading[vii].
To cancel the seizure of these correspondences, the Delegate examined the list transmitted by the Defendants which listed several correspondences seized and excluded the exchanges between them and their counsel[viii].
Nevertheless, the Cour de cassation censured the contested order, stating that the Delegate should have precisely identified the correspondences involved and precisely identify the content of such correspondence in order to accurately know whether these letters were protected by the professional secrecy[ix].
This first decision raises the question of the extent of the analysis expected analysis expected by the Cour de cassation. Indeed, the judge involved must obviously ensure that the documents seized correspond to attorney-client correspondences, yet once this verification has been carried out, it seems difficult to proceed with a more precise analysis of the content of the correspondences, without hindering the confidentiality guaranteed by the above-mentioned law[x].
Yet, the second decision seems to clarify the scope of the expected verification. In this case, the appeal also concerned the annulment of seizures of attorney-client correspondences, seized in the offices of a company by the French regional directorate for companies, competition, consumption, labor and employment (“DIRECCTE”)[xi], on the basis of article L.450-4 I of the Commercial Code[xii].
A table had been produced by the Company which contested the seizure, identifying the correspondences that it considered to be covered by legal privilege. The judge, in granting their request, based its decision on this table, which specified the file reference for each message, the identity of the lawyer and the recipient[xiii].
However, this was also insufficient for the Cour de cassation. After recalling that correspondence between lawyers and clients are covered by professional secrecy, it specified that this only concerns the correspondences relating to the exercise of the rights of the defense[xiv]. Thus, the Cour de cassation, states that the judge was required to verify that the correspondences which has been identified by the Company were indeed related to defense activity[xv].
While this decision clarifies the scope of the verification, which must therefore be related to the exercise of the rights of the defense, it should be noted that that these cases are contrary to the letters of the Law, which expressly states that exchanges between a lawyer and his client are protected inn all matters, whether in the field of advice or of defense[xvi].
The extent of what is qualified as related to the rights of defense in an attorney-client correspondence is questionable. Consequently, it is up to French lawyers to firmly defend their professional secrecy
Related content
Press review
1 December 2023
Press review – Week of 27 November 2023
This week’s press review looks back at the criminal proceedings against Olivier Dussopt, Minister of Labor, Eric Dupond-Moretti, Minister of...
Press review
24 November 2023
Press review – Week of 20 November 2023
This week, the press review looks back at the criminal proceedings opened against Senator Joël Guerriau, former Socialist Party First...
Press review
17 November 2023
Press review – Week of 13 November 2023
This week, the press review looks back at the criminal proceedings against Bashar Al-Assad, leader of Syria, Gotabaya Rajapaksa, former...
Press review
10 November 2023
Press review – Week of 6 November 2023
This week, the press review looks back at the trials of the former deputy director of the Bordeaux Criminal Investigation...
Publication
8 November 2023
The Guide to Sanctions (2023) – GIR
Navacelle co-author of the fourth edition of the Global Investigation Review's Guide to Sanctions.
Press review
3 November 2023
Press review – Week of 30 October 2023
This week, the Navacelle press review looks back at Altice's filing of a civil action in the criminal proceedings in...
Press review
27 October 2023
Press review – Week of 23 October 2023
This week, the press review looks back at the seizure of almost 60 million euros by French judicial authorities in...
Press review
20 October 2023
Press review – Week of 16 October 2023
This week, the press review looks back at the ECHR's decision on the conviction of Total and Vitol on charges...
Press review
13 October 2023
Press review – Week of 9 October 2023
This week, the Navacelle press review looks back at the appeal conviction of the mayor of Sète, as well as...
Press review
6 October 2023
Press review – Week of 2 October 2023
This week, the Navacelle press review looks back at the search of the home of the former mayor of Saint-Jory...
News
5 October 2023
Fillon saga: Procedural victory before the French Constitutional Council for the former prime minister in...
In response to an application for a priority preliminary ruling on the issue of constitutionality (“question prioritaire de constitutionnalité”), the...
Analysis
3 October 2023
Procedural framework for automatic denunciations by French tax authorities
On September 13, 2023, the judges on the Quai de l'Horloge strictly applied article L.228 I of the French Tax...
We use cookies to optimize our website and our services.
Functional
Always active
The technical storage or access is strictly necessary for the legitimate purpose of enabling the use of a specific service explicitly requested by the subscriber or user, or for the sole purpose of carrying out the transmission of a communication over an electronic communications network.
Préférences
The technical storage or access is necessary for the legitimate purpose of storing preferences that are not requested by the subscriber or user.
Statistics
The technical storage or access that is used exclusively for statistical purposes.The technical storage or access that is used exclusively for anonymous statistical purposes. Without a subpoena, voluntary compliance on the part of your Internet Service Provider, or additional records from a third party, information stored or retrieved for this purpose alone cannot usually be used to identify you.
Marketing
The technical storage or access is required to create user profiles to send advertising, or to track the user on a website or across several websites for similar marketing purposes.