Professional secrecy: irreconcilable lawyers and government?

“On solicitor-client privilege, the senators stuck a knife in our backs. So said in September the president of the National Bar Council, Jérôme Gavaudan. The voice of the body representing some 70,000 lawyers in France, illustrates the malaise of a profession on one of the provisions of the bill for confidence in the judicial institution. The powerful Paris bar called for demonstrations on November 16 against the text, almost at the end of the parliamentary process. A rare event, a government amendment could change the decried text again, despite the compromise found between deputies and senators.

A little backtracking is in order. Initially, the reform of the Keeper of the Seals Éric Dupond-Moretti provided, in article 3, to enshrine the professional secrecy of lawyers in the defense of a client, including before the opening of criminal proceedings. The deputies have extended this guarantee of the secrecy of exchanges between a lawyer and a client to consulting activities, a secrecy which has been tarnished over time by case law. On this last point, the Senate did not completely follow the National Assembly. The senators considered that professional secrecy in matters of advice could not be invoked in cases of tax evasion and corruption (as well as the money laundering of these offences). “We considered it normal for the company to retain means of action on certain subjects, such as tax evasion or corruption, which directly affect the very essence of society, democracy, the principle of consent to tax”, explained the rapporteur to the Senate Philippe Bonnecarrère (Centrist Union).

Éric Dupond-Moretti regrets a “misunderstanding” and says he is ready to remove a paragraph

These exceptions (to which is added the financing of terrorism) were maintained in the compromise text found on October 21 between the deputies and the senators, to the chagrin of the lawyers. The exchanges continued behind the scenes, between the ministry and the presidents. Éric Dupond-Moretti, in a letter addressed to them on November 12, sought to “dispel” a “misunderstanding”. “Under the protection of current law, the protection of this secret has never been absolute”.

In his letter, the Keeper of the Seals recalls, however, that he is ready to propose the deletion of a paragraph. When the Parliament is called upon to decide on a text resulting from a conclusive joint committee, only the government is still in a position to table amendments, to make the bill evolve marginally. Overall, this practice is quite exceptional. The passage, which should be removed, indicates that professional secrecy in matters of advice was not opposable “when the lawyer has been the subject of maneuvers or actions for the purpose of allowing, in an unintentional way, the commission, the prosecution or concealment of an offence”.

A particularly problematic passage, according to the president of the National Bar Council, joined by Public Senate. “There are real procedural advances in this article, but they are offset by the rest of the text. First on the exceptions, and on the fact that in any matter, the judge could consider that a lawyer, who is neither author nor accomplice, could have been manipulated”, worries Maître Jérôme Gavaudan. The provision would have the harmful consequence, according to the lawyers, of damaging the bond of trust between a lawyer and a client. The article, even amended, poses too many “uncertainties”, according to them.

“Professional secrecy is a whole”, insists the president of the National Bar Council

The conclusions of the joint committee, as well as the deletion amendment tabled by the Chancellery, will be examined on November 16 in the National Assembly, then on Thursday November 18 in the Senate. The amendment was prepared in consultation with the two law commissions of the two assemblies.

On Monday, the National Bar Council meeting in general assembly responded to the ministerial missive and came out in favor of the total withdrawal of the article. The Ministry’s compromise solution only partially relieves the CNB. “Exceptions are embarrassing,” insists Jérôme Gavaudan. “Professional secrecy is a whole. He is absolute. It concerns the defence, like the council, with this idea that one cannot divide. There is a continuity between the notion of advice and defence. »

Like the Minister of Justice, Philippe Bonnecarrère (himself a lawyer by profession) disputes this assertion. “The profession convinced itself that it had general professional secrecy. She lives on a myth: the problem is that it does not exist. The senator recalls that the article does not organize any retreat from existing law, and that it constitutes on the contrary a “progress”.

Currently, the Code of Criminal Procedure does not specify which documents can be seized in a law firm during a search. Jurisprudence allows the seizure of documents, produced in the context of an advisory activity, in the event that a person who has committed an offense has not yet appointed a lawyer as his defender. After the vote of the law confidence in justice, this type of seizure could be impossible, except if the procedure relates to facts of tax evasion, financing of terrorism or corruption.

A senator notes that these discussions are taking place in a context that is not the most favorable, since the council of the bar association is currently renewing its members.

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