Legal Privilege
The French Ministry of Justice starts work on the confidentiality of in-house lawyers’ advice
Original interview conducted in French by Ondine Delaunay
The confidentiality of legal advice given by in-house counsel as part of their employment has long been a highly contested discussion in EU jurisprudence and within several EU Member States. France, who has seen considerable legislative discussions on this topic over the past few years has recently seen a draft text submitted by the Ministry of Justice. Jean-Philippe Gille, President of the French Association of Company Lawyers (AFJE), gave an overview of the ongoing developments in French, which has been translated here below.
Who is behind the initiative concerning the draft text that aims to introduce confidentiality rules for in-house counsel into French law?
The initiative is the responsibility of the Ministry of Justice, which has become aware of the economic significance that this reform brings. It should be remembered that the report of the Working Group on Economic and Social Justice, headed by Jean-Denis Combrexelle, following the work of the Estates General on Justice, considered that the subject of the confidentiality of the opinions of internal lawyers is of “general interest” and should be dealt with “as a matter of urgency“.
France’s delay in this area now makes the situation untenable, to the detriment of the utility of French law in a global context and the competitiveness of our companies thereof. It is of upmost importance to restore competitiveness between French groups and their international counterparts.
The draft European Union regulation known as “e-evidence” is also about to be adopted. It provides for the unseizability by another Member State of documents protected by confidentiality, including those of lawyers, where this is recognised. Why continue to place French lawyers on the sidelines of the OECD and Europe?
The Ministry of Justice therefore considered that it was urgent to act on 25 January by bringing together the AFJE and the Cercle Montesquieu, the CNB, the Conférence des Bâtonniers and the Paris Bar to set the framework for a consensual solution.
What is the current solution?
The solution proposed by the Ministry of Justice provides for confidentiality to be granted to opinions issued by in-house lawyers. This is confidentiality in rem, i.e. attached only to the legal document issued. This approach excludes the creation of an organisation for in-house lawyers or a special status for lawyers. It does not therefore lead to the creation of a new regulated profession, which differs from Belgium, where it is not possible to practise as a company lawyer without being registered with the Institute of Company Lawyers (IBJ/IJE).
This proposed approach is innovative in that it attaches confidentiality to the legal opinion that the lawyer issues and not to the person. Only qualified in-house lawyers performing an in-house legal function for the company will be entitled to issue them, in accordance with the current Article 58 of the 1971 Act. Confidentiality will not apply to writings exchanged between lawyers of different companies. It will only apply to opinions that the lawyer drafts for the company employing him. It will not, of course, cover opinions and advice that are intended to endorse, assist or intentionally participate in the commission of a criminally reprehensible act.
Does this mean that the approach does not address in-house counsel specifically?
The proposal aims to provide a solution to an increasingly dire scenario: many legal departments have contacted the Ministry of Economy and the Ministry of Justice to express their concern about the consequences of not finding a fitting solution when France is surrounded by countries that offer a competitive protection regime. Currently the goal is to protect our companies. The Ministry of Justice has been very clear on this point.
How can the confidentiality of in-house counsel’s opinions be reconciled with the professional secrecy of lawyers?
The two systems of protection can coexist without difficulty since, for in-house counsels, confidentiality is attached to the opinion and, for the lawyer, professional secrecy is in personam. In this respect, I would like to remind you that the AFJE and the Cercle Montesquieu have always shown their support for the legal profession by taking an official position with the Ministry of Justice on each occasion, in particular concerning professional secrecy. It is also important to stress that this development would not have the effect of calling into question the case law of the Court of Cassation (Crim. 26 January 2022), which protects, under lawyer-client confidentiality, the note issued by a company lawyer incorporating as determinants the elements of the consultation produced by an external lawyer. The confidentiality of in-house lawyers’ opinions will not apply to correspondence between them and their lawyers.
In any case, we will be vigilant on this point because we want a positive solution for companies, for in-house lawyers and their external advisers. We all co-exist in an ecosystem and we must move forward together. Let us not forget that the legal market is a market of induced demand and that the development of law in companies is beneficial to all the players.
Original interview conducted in French by Ondine Delaunay
Jean-Philippe Gille
Directeur Juridique Affaires Corporate Groupe, Groupe Lactalis
President, Association Française des Juristes d’Entreprise (AFJE)
