Global Investigations Review - The law and practice of international investigations

Privilege 2016

Last verified on Thursday 8th June 2017

France

Antoine Kirry and Frederick T Davis
Debevoise & Plimpton (France)

    Scope of the privilege

  1. 1.Are communications between an attorney and client protected? Under what circumstances?
  2. Any communication between an attorney (member of a recognised French Bar) and a client is protected by what in France is known as le secret professionnel (professional secrecy). The protection applies as soon a professional relationship between the attorney and the client has been established, even if the relationship has not been formally established. This protection is considered “general and absolute” and is zealously enforced.

    Professional secrecy also applies to any communications between or among attorneys, even an adversary, unless it is clear that such a communication is “official” and can be shared with others.

  3. 2.Does the privilege only protect legal advice? Does it also protect non-legal communications between an attorney and client, such as business advice?
  4. The protection applies to advice and correspondence between attorney and client, and any information that the attorney has obtained, from whatever source, in the course of his or her professional work for the client.

  5. 3.Is a distinction made between legal advice related to litigation and other legal advice?
  6. The protection applies to both litigation and other advice. Communications between a defence counsel and a client may have a particularly high degree of protection against compelled disclosure.

  7. 4.What kinds of documents are protected by the privilege? Does it cover documents that were prepared in anticipation of an attorney-client communication?
  8. The protection is not focused on “kinds of documents”, but rather applies to all information that the attorney maintains that were obtained in the context of a professional relationship. Thus, all kinds of documents in the possession of, or transmitted by, an attorney are covered. This includes preparatory and internal documents, as well as ones communicated to a client.

  9. 5.To what extent must the communication be confidential? Who can be privy to the communication without breaking privilege?
  10. Once a professional relationship has been established, the protection cannot be “broken” by either the attorney or the client in the sense of giving third parties free access to information held by the attorney (see below on “waiver”); however, the protection can under certain circumstances be lifted or inapplicable, eg, the unauthorised recording of an attorney–client conversation by a third party has been admitted as evidence in court.   

  11. 6.Is the underlying information privileged if it can be obtained from a non-privileged source?
  12. Yes, but only in the sense that an attorney cannot disclose to any third party any information he or she has obtained in the course of a professional relationship. A client cannot resist disclosure of publicly available information on the ground that it was shared with, or obtained from, an attorney.

  13. 7.Are there any notable exceptions or caveats to the privilege?
  14. Search and seizure of a lawyer’s office may be authorised, as are investigations by competition authorities. As set forth further below, a representative of the Bar must be present.

  15. 8.Are there laws unrelated to privilege that may protect certain communications between attorney and client?
  16. These are:

    • information related to intellectual property and copyright infringement;
    • medical secrecy;
    • banking secrecy; and
    • general laws relating to personal privacy and access to databases.

    Protected parties

  17. 9.To what extent does the privilege extend to in-house counsel? 
  18. In-house counsel are not considered members of a “bar” (in large part because they are deemed incapable of being “independent” of their employer), and professional secrecy does not protect their communications with employees of their employer or information obtained from them. This issue is the subject of current debate and discussion.

  19. 10.Does the privilege protect communications between an attorney and a corporate client’s employees? Under what circumstances?
  20. Communications of an in-house counsel with employees of a corporation are not covered by professional secrecy. Communications by a member of a Bar to a corporate client are protected. Since corporations only act through individuals, communications between an attorney and a corporate employee are protected if the employee is acting for the corporation in his or her communications with the attorney.

    Special circumstances arise when an attorney engages in an “internal investigation” for a corporate client. An opinion of the Paris Bar issued in March 2016 clarifies that members of the Bar can perform internal investigations, even for regular clients; and that the fruits of such an investigation are covered by professional secrecy. As the opinion acknowledges, a number of questions remain open as to how such investigations should be conducted, on which the Bar may in the future provide further guidance.

  21. 11.Does the privilege protect communications between non-lawyers if they are acting at the direction of counsel or gathering information to provide to counsel?
  22. Staff, non-professionals, and trainees employed by an attorney are covered by professional secrecy. If an attorney in the course of a professional engagement obtains information from a non-lawyer outside of his or her professional organisation, the lawyer’s copy or knowledge of that information is covered by professional secrecy, but a non-lawyer outside of the organisation may have difficulties being able to assert that protection, or at a minimum may be the object of a search and seizure.

  23. 12.Must the attorney be qualified to practise in your country to invoke the privilege?
  24. A communication obtained in France by a person who is neither a member of a French Bar nor an attorney admitted to practise elsewhere in the European Union would not be covered by professional secrecy. A court in France would probably respect an assertion of protection by an attorney from another country who obtained information from his or her client in that country under circumstances where the information would be considered protected under the laws applicable to that relationship.  

  25. 13.Is there an analogous privilege extended to non-lawyer professionals?
  26. Other professionals, including accountants and notaires, have their own rules of professional responsibility.

  27. 14.Does the privilege apply to communications with potential clients?
  28. A communication between a member of a Bar and a potential client in anticipation of a professional relationship is covered by professional secrecy even if a formal engagement is not reached.

    Ownership of the privilege

  29. 15.Does the attorney or the client hold the privilege? Who has rights under the privilege? 
  30. It is conceptually inaccurate to say that either the attorney or the client “holds” or “owns” the “privilege” (see next paragraph on waiver). Professional secrecy is an obligation on the attorney imposed by law, designed to protect the client and more broadly to defend the principles, and particularly the independence, of the legal profession.

  31. 16.Can the privilege be waived? Who may waive it?
  32. An attorney cannot waive the application of professional secrecy. A client cannot “waive” it in the sense of authorising an attorney to divulge material covered by professional secrecy to a third party (absent, under extreme circumstances, the explicit permission of the local Bar). On the other hand, once an attorney provides advice or any work product to a client, the client can share that information with third parties (and does not need the consent of the attorney to do so).

  33. 17.Is waiver all or nothing? Is it possible to waive the privilege for certain communications but not others?
  34. See the previous response. If a client discloses material or information that, for an attorney, would be covered by professional secrecy, the client’s ability to share some but not all such information would depend on the circumstances of the disclosure and the rules applicable to it.

  35. 18.If two defendants are mounting a joint defence, can they share privileged information without waiver? What about two parties with a common interest?
  36. If properly observed, professional secrecy applies to attorneys working together in a joint defence or for clients with a common interest.

  37. 19.Is it common for attorneys and clients to agree to a confidentiality provision in a contract?
  38. There is no need to address professional secrecy if it clearly applies because of the status of the attorney and his client. Attorneys often include in professional engagement letters mutual understandings concerning confidentiality. Mutual understandings are particularly important when attorneys are members of the Bars of multiple countries to assure clarity on which laws apply.

    Enforcement considerations

  39. 20.Describe the legal basis of the rules governing the privilege. Are these rules found in a constitution or statute, or in case law?
  40. The various Bars in France have clearly expressed rules of professional conduct (déontologie), and provide mechanisms for their enforcement. These rules are also set forth in national bar groups and are reflected to some degree in the European Convention on Human Rights. Legislation recognises the legal force of these rules, and under certain circumstances criminalises their violation.

  41. 21.Is the privilege primarily characterised as a procedural or evidentiary rule, or is it characterised as a substantive right? 
  42. Professional secrecy is a statutory obligation imposed on an attorney to protect the client, which can give rise to criminal penalty in case of breach.

  43. 22.Describe any differences in how the privilege is applied in the criminal, civil, regulatory or investigatory context. 
  44. See question 7. There are special rules relating to criminal investigations where information held by a member of the Bar is sought: The police or investigating magistrate must inform the local Bâtonnier (head of the local Bar) of any such effort, and the Bâtonnier or a delegate must be present at a search of a lawyer’s premises or at an interview to limit the search and to assure that protected information is not obtained.  

  45. 23.Are the rules regarding the privilege uniform nationwide or are there regional variations within your country?
  46. While local Bars supervise the exercise of professional secrecy within their geographic region, the rules are essentially the same nationwide.

  47. 24.Does a professional organisation enforce the maintenance of the privilege among attorneys? What discipline do attorneys face if they violate privilege rules?
  48. The local Bar supervises the observance by its members of professional secrecy; this is taken very seriously by the Bars, which set up a special committee or group for this purpose. An attorney violating professional secrecy can face sanctions from the Bar, including public announcement and possible disbarment.

  49. 25.What sanctions do courts impose for violating the attorney–client privilege? 
  50. In extreme circumstances, an attorney who has violated professional secrecy can be prosecuted criminally, facing up to one year in prison and a fine of €15,000. A client who has been harmed by a violation by an attorney may seek compensation.

  51. 26.How can parties invoke the privilege during investigations or court proceedings? Can the privilege be invoked on the witness stand?
  52. A client can at any time refuse to provide information that was obtained from an attorney in the course of that attorney’s professional relationship.

  53. 27.In disputes relating to privilege, who typically bears the burden of proof? 
  54. In the absence of formal evidentiary rules relating to burden of proof, as a practical matter a client asserting a right not to disclose information or advice obtained from attorney must demonstrate that right.

  55. 28.Does the privilege protect against compulsory disclosures such as search warrants or discovery requests? Is there a distinction between documents held by the client and documents held by the attorney? 
  56. There are few formal rules concerning, or frequent practice of, “discovery” in the US sense of the term. A party to a civil litigation would not be expected, or ordered by a court, to disclose information or advice received from an attorney, nor could such information be obtained directly from an attorney. As noted in questions 7 and 22, a search warrant may be obtained with respect to the premises of a client or the professional offices of an attorney. In both cases, to the extent that authorities obtain information covered by professional secrecy the return of such information can be demanded, other than if access to professional advice has been specifically authorised as noted above. As also noted, a representative of the Bar should be present at any search of a lawyer’s office.

  57. 29.Describe the choice-of-law rules applied by your courts to determine which country’s privilege laws apply. To what extent does your country recognise the validity of choice-of-law provisions in contracts, particularly as they apply to privilege?
  58. In their relationships with other attorneys in the European Union, French attorneys often consult but are not bound by the Code of Ethics of Lawyers of the European Union, which applies to every EU lawyer. When a French attorney communicates with any foreign attorney outside the EU, there is no rule. As a consequence, it is recommended for the parties to contractually agree upon a confidentiality provision. With respect to information exchanged between an attorney and a client entirely outside of France, French courts (and, generally, arbitrators acting under French law) will respect the rules applied by the place where the relationship took place.

    Termination of the privilege

  59. 30.Does the privilege terminate on the death of either the attorney or the client?
  60. The protection does not terminate on the death of either the attorney or the client. The heirs cannot terminate it, and the attorney cannot disclose any privileged communication.

  61. 31.Does the privilege terminate on the conclusion of the attorney-client relationship?
  62. No.

  63. 32.Is the privilege destroyed if the client communicates information to the attorney to further a crime or perpetuate a fraud?
  64. Neither an attorney nor a client can protect from disclosure communications between them designed to further a crime or perpetuate a fraud. Under certain circumstances where the risk of an imminent infraction is serious, an attorney may be excused from professional secrecyin order to report it. In addition, attorneys have an obligation to report suspicious transactions to the Bâtonnier, notably in relation, among others, to offences of money laundering, terrorist financing or tax fraud. The Bâtonnier will in turn assess whether or notsuch a suspicious transaction report can be conveyed to the Financial Intelligence Unit (Tracfin) without violating professional secrecy

  65. 33.Is the privilege terminated if the attorney makes an inadvertent disclosure? If such a disclosure is made, can the attorney retrieve the privileged information or otherwise correct the error?
  66. No disclosure by an attorney – whether inadvertent or intentional – will terminate the protection afforded by professional secrecy.

  67. 34.Is the privilege terminated if a third party is included in the communication or is subsequently forwarded the communication?
  68. Information shared with a non-client may not be protected from disclosure by that non-client, but would not provide a basis to obtain protected information from an attorney.

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Questions

    Scope of the privilege

  1. 1.Are communications between an attorney and client protected? Under what circumstances?
  2. 2.Does the privilege only protect legal advice? Does it also protect non-legal communications between an attorney and client, such as business advice?
  3. 3.Is a distinction made between legal advice related to litigation and other legal advice?
  4. 4.What kinds of documents are protected by the privilege? Does it cover documents that were prepared in anticipation of an attorney-client communication?
  5. 5.To what extent must the communication be confidential? Who can be privy to the communication without breaking privilege?
  6. 6.Is the underlying information privileged if it can be obtained from a non-privileged source?
  7. 7.Are there any notable exceptions or caveats to the privilege?
  8. 8.Are there laws unrelated to privilege that may protect certain communications between attorney and client?
  9. Protected parties

  10. 9.To what extent does the privilege extend to in-house counsel? 
  11. 10.Does the privilege protect communications between an attorney and a corporate client’s employees? Under what circumstances?
  12. 11.Does the privilege protect communications between non-lawyers if they are acting at the direction of counsel or gathering information to provide to counsel?
  13. 12.Must the attorney be qualified to practise in your country to invoke the privilege?
  14. 13.Is there an analogous privilege extended to non-lawyer professionals?
  15. 14.Does the privilege apply to communications with potential clients?
  16. Ownership of the privilege

  17. 15.Does the attorney or the client hold the privilege? Who has rights under the privilege? 
  18. 16.Can the privilege be waived? Who may waive it?
  19. 17.Is waiver all or nothing? Is it possible to waive the privilege for certain communications but not others?
  20. 18.If two defendants are mounting a joint defence, can they share privileged information without waiver? What about two parties with a common interest?
  21. 19.Is it common for attorneys and clients to agree to a confidentiality provision in a contract?
  22. Enforcement considerations

  23. 20.Describe the legal basis of the rules governing the privilege. Are these rules found in a constitution or statute, or in case law?
  24. 21.Is the privilege primarily characterised as a procedural or evidentiary rule, or is it characterised as a substantive right? 
  25. 22.Describe any differences in how the privilege is applied in the criminal, civil, regulatory or investigatory context. 
  26. 23.Are the rules regarding the privilege uniform nationwide or are there regional variations within your country?
  27. 24.Does a professional organisation enforce the maintenance of the privilege among attorneys? What discipline do attorneys face if they violate privilege rules?
  28. 25.What sanctions do courts impose for violating the attorney–client privilege? 
  29. 26.How can parties invoke the privilege during investigations or court proceedings? Can the privilege be invoked on the witness stand?
  30. 27.In disputes relating to privilege, who typically bears the burden of proof? 
  31. 28.Does the privilege protect against compulsory disclosures such as search warrants or discovery requests? Is there a distinction between documents held by the client and documents held by the attorney? 
  32. 29.Describe the choice-of-law rules applied by your courts to determine which country’s privilege laws apply. To what extent does your country recognise the validity of choice-of-law provisions in contracts, particularly as they apply to privilege?
  33. Termination of the privilege

  34. 30.Does the privilege terminate on the death of either the attorney or the client?
  35. 31.Does the privilege terminate on the conclusion of the attorney-client relationship?
  36. 32.Is the privilege destroyed if the client communicates information to the attorney to further a crime or perpetuate a fraud?
  37. 33.Is the privilege terminated if the attorney makes an inadvertent disclosure? If such a disclosure is made, can the attorney retrieve the privileged information or otherwise correct the error?
  38. 34.Is the privilege terminated if a third party is included in the communication or is subsequently forwarded the communication?