The definition of legal professional privilege as such does not exist in France because the standards for disclosure in French litigation are extremely limited. As a result, the laws of legal professional privilege shielding records from disclosure have not established in France as they have in England and Wales, the United States and other jurisdictions under common law. Legal advice provided to a client by a lawyer is, instead, covered by professional confidentiality.
Professional confidentiality is a general duty not to reveal secrets put on all individuals who, in the light of their professional status, have access to those secrets. The duty is sanctioned both by criminal law (Article 226-13 of the Criminal Code) and by disciplinary action.
The question of whether a document is covered by professional confidentiality in France is determined not by the substance of the correspondence, but by the position of the author and/or the recipient. In essence, it is prohibited for a lawyer to share information gained during the assistance of a client. This duty is a matter of public order. It’s common, absolute and limitless.
French law on litigation proceedings provides:
‘In all matters, including consulting work or litigation, legal advice addressed to the client by the lawyer or intended for the good of the client, correspondence exchanged between the lawyer and the client, between the lawyer and his colleagues, the meeting notes and, more generally, all records in the file shall be shielded by professional confidentiality.’
Pursuant to that provision, records covered by professional confidentiality may not serve as proof in the sense of civil proceedings, and their creation cannot be coerced.
Legal professional privilege in the field of criminal investigations The same law applies in the context of criminal trials. In addition, Article 432 of the Code of Criminal Procedure specifically prohibits the use of correspondence exchanged between the defendants and their lawyers as evidence. However, if a lawyer is accused of committing a crime or of being an accomplice to a crime, the exchanges of clients can be used as evidence before the French criminal courts.
Notice that, in addition, when operating in fiduciary capacity, intervening on behalf of their client in any financial or real estate transaction or assisting their clients in the planning or execution of particular transactions, French lawyers are obliged, where appropriate, to report their suspicions of tax evasion or financial offenses to the authorities (Tracfin) through their Bar President.
The above criteria often apply in the case of inquiries by the antitrust/competition regulator. The authority does not seize documents that fall beyond the boundaries of professional privacy, at least to the degree that they impair the fundamental right of defence.
Pursuant to Article 2 of the Réglement Intérieur National (RIN) of the French Bar Council, French professional confidentiality extends to all matters, whether advisory or contentious. Secrecy shall extend no matter when a record has been made, and regardless of the medium, whether it is physical or electronic (paper, fax, email, etc).
Professional confidentiality shall extend to:
Legal opinions addressed by lawyers to their clients correspondence between lawyers and their clients and between lawyers – except for correspondence classified as ‘official’ meeting notes and, in general, all elements of the lawyers’ files, including all information given to lawyers in the exercise of the names of their clients and lawyers’ fees payment schedules, and the information needed in order to ensure that professional confidentiality is applied, it should be made clear that the paper has either been drawn up by or intended for a lawyer and has been prepared in accordance with the request for or the provision of legal advice.
Notice that, in compliance with recent case law, the presence of a lawyer in electronic correspondence between non-lawyers (for example, when a lawyer is copied via e-mail) is not, in itself, sufficient to make such an interaction subject to professional confidentiality.
Under French law, in-house counsel are subject to professional confidentiality obligations with regard to information which can be defined as ‘business secrets’ obtained within the scope of their role within the organization. In-house attorneys are also forbidden from knowingly sharing with non-authorized third parties the legal advice they give to the organization for which they operate. Infringement of this duty is considered to be a criminal offence (Article 226-13 of the French Criminal Code).
However, the French courts do not extend the complete coverage of professional confidentiality to correspondence between in-house lawyers and staff, officers or directors of a corporation in the sense of receiving legal advice. This principle was supported by the European Court of Justice in the Akzo Nobel judgment in the field of EU competition.
In addition, in-house attorneys (as opposed to external lawyers) are obliged to testify when they have been called or give evidence concerning their employers.
Finally, the French Court of Cassation has recently ruled that French law will extend in order to determine if the legal professional right extends to correspondence with in-house lawyers from other jurisdictions, not to the local law of the country in which the contact was made.
Communications between French lawyers and foreign lawyers shall be subject to professional confidentiality only if certain measures are taken (Article 3 RIN).
In the case of EU lawyers, such safeguards may consist of specifically indicating communications as ‘confidential’ and/or entering into a confidential agreement covering all or specified forms of communication.
The French Court of Cassation has held that whether professional confidentiality extends to correspondence between lawyers registered in two separate countries would depend on an interpretation of the provisions of the international legislation in effect.
The client may want to use a document that is subject to professional secrecy, but the client cannot free the lawyer from his professional confidentiality obligations. However, professional confidentiality can be waived in the interests of the client’s defence, or in the interests of the lawyer’s defence, if they are directly facing legal proceedings. In the above cases, the creation of confidential records must be important to the protection of the lawyer.
Legal professional privilege in the context of merger control The legal professional privilege in the context of merger control was not clearly established. There is no case law on this issue so far, although it has been listed in the form of antitrust inquiries by the French competition authority (Decision n°07-D-49 of 19 December 2007) and by a number of courts (see, for example, Cour de cassation of 24 April 2013, Société Medtronic France, n°12-80331 and the Court of Appeal of Paris, 8 November 2017, Whirlpool France, RG n°14/133844).
However, in the sense of merger regulation, legal professional privilege cannot be ignored. In the absence of jurisprudence, the general concept of legal privilege as set out in Article 66.5 of Law 71-130 (see also above) shall apply.