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
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