“This text marks the death of professional secrecy.” Nicolas De Sa-Pallix, president of the Union of Lawyers of France (Paris section), does not hide his anger against a possible questioning of the protection of the professional secrecy of lawyers, about to be voted by Parliament.
In question, an amendment to the bill for “confidence in the judicial institution”, adopted Thursday, October 21 in a joint committee, this body composed of seven deputies and seven senators responsible for finding a compromise on a text in the event of disagreement between the two chambers. The text must soon be voted on by the two assemblies, which no longer have the possibility of modifying it, which alarms lawyers and unions.
Until now, the secrecy of exchanges between a lawyer and his client was inalienable. Guaranteed by the law of December 31, 1971, professional secrecy applies both in the activities of defending litigants and in the field of advice. “Of course, this procedural guarantee is not intended to immunize the lawyer, nor his client for that matter”, recalls Charles Ohlgusser, lawyer and president of the Union of Young Lawyers of Paris.“If the lawyer participates in the infringement of his client, then there must be a sanction.”
In the version of the bill currently being adopted by Parliament, two exceptions to the protection of professional secrecy are included in article 56-1 of the Code of Criminal Procedure, in the context of consulting activities. If the text is adopted, professional secrecy could thus be lifted if offenses of a financial nature are suspected. The following are targeted: tax evasion, terrorist financing, corruption, influence peddling as well as the laundering of these offences.
We wake up disappointed by what happened yesterday. #secretPro
A breach has been opened in professional secrecy. A breach resulting from a transaction between deputies and senators.
They played with a fundamental guarantee and turned it into a “compromise”. 1/ pic.twitter.com/o8wSricSGi
— Charles Ohlgusser (@c_ohlgusser) October 22, 2021
For lawyer Charles Ohlgusser, this amendment, “vague” and “imprecise”makes its scope “impossible” to understand. The text aims in particular “consultations, correspondence or documents held or transmitted by the lawyer or his client” who would establish “proof of their use” to commit an offence. “How can a part prove that it is used?”chokes the lawyer.
But what worries the profession even more is the second paragraph of the text, “simpler but much more dangerous”, according to lawyer Nicolas De Sa-Pallix. Professional secrecy is lifted as soon as the lawyer “is the subject of maneuvers or actions for the purpose of allowing, in an unintentional manner, the commission or the continuation or the concealment of an offence”, states the bill. In this paragraph, the type of offense is no longer specified. “So potentially anything can fit into that definition,” anticipates the lawyer.
“With this sentence, we create a quasi-offense of passive complicity of the lawyer.”Nicolas De Sa-Pallix, lawyer
As soon as a lawyer gives advice, “it will be presumed that he would have participated, without his knowledge, in the commission of an offense and his files will be seized”interprets the lawyer.
A priori, the litigation activities of lawyers are not affected by this change in the law. But “the border between the two is porous, because advice can turn into litigation”remember Charles Ohlgusser. “That’s why we have always insisted that professional secrecy be complete, which will no longer be the case.”
Business lawyers, a large part of whose activity is based on advice, are particularly worried. “When a client wants to know if the activity of the company he intends to buy or set up in France complies with French standards, his lawyer will fall under the scope of this amendment.anticipates Charles Ohlgusser. “Clients will no longer have an interest in seeking advice from their lawyer at the risk of self-incrimination and companies will be dissuaded from settling with us”he believes.
The lawyers also fear that the wording, according to them, of the imprecise text allows for an interpretation “limitless” from the authorities, who risk of“to enter the breach as much as possible”, according to Nicolas De Sa-Pallix, who thinks that“at the slightest pretext, we can come and search a lawyer’s office”.
“We know that in criminal proceedings, as soon as you have an exception, it is then heard, and the derogatory measures arrive step by step.”Nicolas De Sa-Pallix, lawyer
This text opens the door to a “legal uncertainty”underlines Julien Brochot, lawyer at the Paris bar and member of the Council of the order. “Not only for the lawyers, but above all for our clients who will no longer trust us because we will no longer be able to assure them of the professional secrecy which is the guarantee of the interests of the rights of the defense and of a fair trial.”
The day before the arbitration in a joint committee, the representatives of the main lawyers’ unions, and some 150 big names in the profession, expressed their fears in a column published in The world (article subscribers)written under the aegis Charles Ohlgusser. Mobilized “to the max” for the government to reconsider this text, the profession stands ready, if necessary, “to seize the Constitutional Council as soon as the law is promulgated”ensures Nicolas De Sa-Pallix.