Lawyer's Professional Secret: Legal Framework and Challenges

Extract

[...] recalled that the secret covers both defense and advisory activities. This jurisprudence opposes the French distinction between counsel and defense, still present in certain decisions. A field of application defined by the jurisprudence The jurisprudence specifies the cases of application of the professional secrecy, it thus consecrates the confidentiality of lawyer-client correspondence, including when they involve company directors or employees (doc. 7). The Paris Court of Appeal considersthat these exchanges remain covered by the secret when they evoke a legal strategy, even in the absence of a direct link with the defense. [...]

[...] The decree of January (doc. 11) and the evolution of disciplinary law, however, reinforce this trend. The lawyer can be heard in a deontological or disciplinary inquiry, but nevertheless benefits from the right to remain silent (doc. showing that in this context the secrecy is not necessarily absolute. A Critique of Reconsideration The case known as "Bismuth » shows the tensions around secrecy. Two lawyers denounce the fact that conversations between Nicolas Sarkozy and his council were retained as incriminating elements, despite their characterisis confidential (doc. [...]

[...] This file thus invites to analyze the legal construction of the lawyer's professional secret but also the attacks that weaken its scope (II). I-A Legal Construction of the Lawyer's Professional Secret of theavocat The lawyer's professional secret is based on clear normative and deontological foundations don't the concrete applicationisthe extent to which it is specified by jurisprudence A legal framework structured by deontological requirements The professional secrecy of the lawyer is consecrated by the law of 31 December 1971 (doc. [...]

[...] The Court of Cassation, in a ruling of 29 September 2022 (doc. has, on the other hand, reminded that only the lawyer can produce a piprotected by the secret and only for the needs of its own defense. The scope of this protection also includes the material elements of the activity, such as the agenda, the relements or the pthese attachments to the correspondence (doc. 6). However, certain limits are provided: article L.56-1-2 of the Code of Criminal Procedure (doc. [...]

[...] The doctrine alerts on the risk of fragmentation of the secret, particularlyisremains in the fields of consulting, tax law or compliance (doc. 9). The Court of Justice of the European Union, has condemned this distinction, highlighting that all lawyer activities must benefit from the same confidentiality. The Council of State itself has recently denied theindivisibilityis of the secret (doc. acting a rupture with the unitary conception admitted until now. On the other hand, a prosecutor general recognizes the importance of the secret, but recalls that it cannot serve as a 'shield of impunity' in penal investigations (doc. [...]