In-house counsel query protection

The recently adopted law on guidance and planning of justice included article 49 that aimed to protect the confidentiality of consultations of in-house lawyers in the context of various proceedings, including competition investigations. However, the Constitutional Council considered that this article was contrary to the Constitution.

Cons. const., DC, November 16, 2023, n.oh 2023-855

While the lawyer and the in-house lawyer are subject to professional secrecy, the former benefits from the protection of documents exchanged with their clients, while the in-house lawyer is deprived of it. The issue of extending confidentiality protection to in-house counsel has been debated for some time. Supporters of enlargement invoked a competitive argument, arguing that France’s attractiveness for the location of the legal departments of international groups was at stake.

They were satisfied with the vote in Parliament of the bill on the orientation and programming of justice, whose article IV of article 19 (currently article 49), presented in first reading in the Senate, granted corporate lawyers the protection of your queries. However, the Constitutional Council considered that Article IV of Article 49 was contrary to the Constitution.

I – Granting protection to in-house lawyers

Article 49 of the new law introduced in article 58-1, I of law no. 71-1130, of December 31, 1971, the principle of protection: “Legal consultations prepared by a company lawyer or, at his request and under your control, by a member of your team placed under your authority, for the benefit of your employer, are confidential.

Article 58-1 specifies that the documents thus protected “may not be subject, within the framework of a procedure or litigation in civil, commercial or administrative matters, to embargo or obligation to deliver to a third party, including a French or a stranger”. administrative authority. In this same context, they cannot oppose the company that employs the in-house lawyer or the companies of the group to which it belongs. By focusing on procedures “in (…) administrative matters”, the text clearly specified that procedures in various matters were related to protection, in competition investigations, for example.

This was implicitly confirmed by article 58-1 when it specified that “confidentiality is not required in the context of a criminal or fiscal process.” It is clear that the competition proceedings were not covered by this exclusion.

The protection thus granted to in-house lawyers was in line with the line drawn by jurisprudence. Let us remember, for example, that the protection of attorney-client correspondence had already been extended in a competition matter to documents coming from the lawyers of the visited company and repeating a defense strategy implemented by the company of the visited company.1. Previously, the benefit of protection was essentially limited to communications between the attorney and his client.2.

It should be noted, however, that many observers question the application of the consultation protection to in-house counsel.3.

II – Protection conditions

To be protected by confidentiality, legal consultations had to meet certain conditions. For example, the in-house lawyer or the member of his team reporting to him had to have a master’s degree in law or an equivalent French or foreign degree; the in-house lawyer also had to prove that he had completed initial and continuing training in ethics; In addition, the consultations had to be directed to the management, administrative or supervisory bodies; consultations must also be marked “confidential – legal consultation – corporate lawyer” and, as such, be subject to specific identification and traceability in the company’s files and, where applicable, in the files of the group member company recipient. of the consultations.

III – Procedure

The procedural rules were also specified. Thus, “the judge of liberties and detention who has authorized a visit operation within the framework of an administrative procedure may be contacted by reasoned request from the administrative authority that has carried out said operation, within a period of fifteen days from this, for the purposes of (…) challenging the alleged confidentiality of certain documents (…) or ordering the lifting of the confidentiality of certain documents.” In competition investigations, the administrative authority referred to here was the Competition Authority or the General Directorate of Competition, Consumer Affairs and Fraud Control (DGCCRF).

After hearing the plaintiff and the company that employs the in-house lawyer, the judge ruled on the litigation and, where appropriate, on the request to lift the secret.

Furthermore, the company that employed the in-house lawyer or, where applicable, the member company of the group that received the legal consultation had to be assisted or represented by a lawyer.

A means of appeal was prepared: “The order of the judge of liberties and detention may be appealed to the first president of the court of appeal or his delegate. The appeal may be filed by the administrative authority, the company that hires the in-house lawyer or, where appropriate, the member company of the group that receives the legal consultation.

IV – Sanctions

Finally, with regard to sanctions, article 58-1 punishes “with the penalties provided for in article 441-1 of the Penal Code, the fact of fraudulently placing the words: “confidential – legal consultation – company lawyer” in a document that does not fall within the scope of this article.” Therefore, the perpetrator of such a crime would face a sentence of three years in prison and a fine of 45,000 euros. The fine imposed in this case seems little dissuasive. By way of comparison, the author of an opposition to the functions of competition control agent incurs the sanctions provided for in article L. 450-8 of the Commercial Code, that is, two years in prison and a fine of 300,000 euros.

V – Censorship of the Constitutional Council

The Constitutional Council considers that section IV of article 49 does not present any link, not even indirect, with the provisions of article 19 of the initial bill, regarding the title required to access the legal profession. Nor does it have any link, even indirect, with any other of the provisions that appeared in the bill submitted to the Senate table. Therefore, it considers that article IV of article 49 is contrary to the Constitution.4.

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