Concerns over possible extension of attorney-client privilege

A lawyer clenches his fist during a demonstration against the pension reform, on January 6, 2020, in Lyon.

The blow is gone, it will be difficult to catch up. This is the story of an amendment voted unanimously by the deputies in the bill “for confidence in the judicial institution”. Bercy sees a disarmament in the face of exotic tax arrangements and anti-competitive practices. The subject is all the more thorny as the Minister of Justice, Eric Dupond-Moretti, did not express, during the vote, his disagreement with this amendment pushed by the National Council of Bars nor expressed, since, any will to revisit this point when it is discussed in the Senate in September.

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The government text provided for the guarantee of professional secrecy of the defense to be included at the top of the code of criminal procedure. The deputies, from La France insoumise to the Les Républicains party, passing through the socialists and the elected representatives of La République en Marche, have extended this guarantee to the activities of advising lawyers, including in tax or financial matters. This, in the name of a simple and protective principle according to which the professional secrecy of a relationship between the lawyer and his client cannot be divided. A second amendment, voted this time with the full support of the Minister of Justice, pushed this logic so far as to allow a person subject to a search to oppose the seizure of documents coated with the secrecy of correspondence lawyer-client.

“It would thus be enough for the lawyer to be in copy of all the exchanges within a company to prevent the seizure of documents necessary for the demonstration of the realization of an infringement”, is alarmed the director general of competition, consumption and the repression of fraud (DGCCRF), Virginie Beaumeunier, in a note to the Minister of Economy and Finance. According to this letter of July 18, that The world was able to read, “Such protection would favor circumvention strategies” by companies.

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Ambiguities

The “tax home visits” and the “visits and seizures”these searches ordered subject to the authorization of a judge of freedoms and detention by the tax authorities, the DGCCRF, the Competition Authority or the Financial Markets Authority, risk being much less productive and sources of significant litigation, we are worried at Bercy.

The Director General of Public Finances, Jérôme Fournel, in turn sounded the alarm in a note dated July 27 that The world was able to consult. The author even attaches three proposed amendments to be submitted to the Ministry of Justice to remove all ambiguities. Because, for its part, Place Vendôme wants to be reassuring about the scope of the text as it was voted by the National Assembly. In an analysis of June 17, the Directorate of Criminal Affairs and Pardons (DACG) ensures that it only concerns criminal proceedings and will not affect the scope of tax or financial investigations.

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