By Charles Merveilleux du Vignaux, Lawyer at Temime
What is the status of lawyer-client exchanges under French law?
Despite the wording of article 66-5 of the law of December 31, 1971 – “ in all matters, whether in the field of consulting or in that of defense […], correspondence exchanged between the client and his lawyer […] are covered by professional secrecy » – the Criminal Chamber of the Court of Cassation has always considered that the existence of this secrecy does not prevent the authorities from seizing these correspondences, as long as they do not relate to the exercise of defense rights.
This reading, which was clumsily included in the code of criminal procedure by the law for confidence in the judicial institution of 2021, results in a situation where only correspondence linked to the defense of the client in the context of a criminal or administrative investigation, or with a view to such an investigation when reasonably certain. In all other areas – advice in the broad sense: consultations, transactional activities, internal investigations, whether they relate to tax, social, stock market law, etc. – the lawyer’s productions can be freely entered. The Criminal Chamber also sharply recalled this in a judgment of September 24, 2024, rendered regarding search and seizure operations under competition law.
This solution is worrying because, as one commentator (here) points out, it places France behind in terms of protecting the rule of law, and therefore undermines its attractiveness as a legal forum.
Why is the CJEU decision important?
In this case, a Luxembourg law firm was fined by the Luxembourg tax authorities because it had refused to comply with an injunction to communicate information on a company law file which it had received. the charge for one of its clients, considering that they were covered by professional secrecy.
Seized on a preliminary ruling, the CJEU ruled that the lawyer’s legal advice activities, whatever the field in which they relate, benefit from the same confidentiality as his defense activities, and consequently as an injunction to communicate information on these activities constitutes an interference with the right to respect for communications between a lawyer and his client, guaranteed by the Charter of Fundamental Rights of the EU. In other words, contrary to French case law, the CJEU considers that all the lawyer’s activities must be protected.
Above all, it ruled that the text of Luxembourg law applicable in the case, which requires lawyers to communicate information about their clients when they intervene in tax matters, is contrary to the Charter because, “ by subtracting almost entirely from the reinforced protection from which the professional secrecy of the lawyer must benefit […] the content of lawyers’ consultations provided in tax matters, namely the entirety of a branch of law in which lawyers are likely to advise their clients, [il] leads to emptying this protection of its very substance in this branch of law ».
Consequently, a provision of national law which excludes the confidentiality of lawyer-client exchanges or makes it unenforceable in large areas of the lawyer’s activity – as is the case of the jurisprudence of the Court of Cassation with the consultancy activities – is contrary to EU law.
Can this solution be transposed into domestic law?
The CJEU’s judgment is based on the EU Charter of Fundamental Rights. However, since this is imposed on Member States only when they implement European legislation, some might be tempted to assert that the decision will have limited influence. But several considerations argue for a broad application:
- The relevant provision of the Charter is identical to that of the European Convention on Human Rights, which is directly applicable in domestic law. The Criminal Chamber has already evolved central aspects of criminal procedure under its influence, for example by recognizing the right to the presence of a lawyer in police custody after decades of opposition ( Crim. October 19, 2010, 10-82.902).
- In practice, if the Court of Cassation maintains its current position, this will inevitably pose a problem of equality before the law. For example, how can we accept that a litigant can object to the seizure of correspondence with his lawyer if he is the subject of a search carried out by the European Public Prosecutor’s Office, and that he cannot do so if the investigation is carried out by the French authorities, even though the search would be governed by the same provisions of the code of criminal procedure? Likewise, it seems difficult to accept that exchanges with a lawyer can be protected within the framework of a competition investigation conducted by the European Commission, and not if it is conducted by the Competition Authority, whereas it is a question of applying the same body of rules in both cases.
We must therefore hope that the next appeals against seizures of lawyer-client correspondence, which will undoubtedly be referred to the French courts, will finally be an opportunity for the Criminal Chamber to adopt a concept more respectful of the rights of litigants, and at the same time eliminate one of the most salient points of friction between lawyers and magistrates.
