Legal professional privilege

Under French law, professional secrecy is a general obligation, imposed on persons because of their state or profession, not to disclose any secret information they may have access to due to their function or mission (e.g. lawyers, judges, doctors, journalists etc.). This obligation is sanctioned both under criminal law (art. 226-13 of the French Criminal Code) and by disciplinary measures that may apply to these different professionals.

Definition of legal privilege under French law

The concept of legal professional privilege has no exact equivalent under French law. However, legal advice provided by lawyers to their clients as well as their communications are protected by the lawyer’s professional secrecy (secret profesionnel de l’avocat), as provided by Article 66-5 of Law No 71-1130 of 31 December 1971:

“in all matters, whether it is advisory work or litigation, the legal opinions addressed by a lawyer to their client, or intended to be for their client’s benefit, the communications exchanged between a lawyer and their client, between lawyers (with the exception of communications identified as ‘official’), the meeting notes and more generally all the documents of the case are protected by lawyer’s professional secrecy”.

Furthermore, Article 2 of the National Rules of Procedure (Règlement Intérieur National, RIN) of the French Bar Council provides:

“The lawyer is the necessary trusted advisor of the client.

The lawyer professional secrecy is of public order. It is general, absolute and unlimited in time.

Subject to the strict requirements of his own defence before any court and to the cases of declaration or disclosure provided for or authorized by law, the lawyer shall not, in any matter, make any disclosure contrary to lawyer’s professional secrecy.

French lawyer’s professional secrecy covers all matters, whether advisory or contentious and regardless of the medium, material or immaterial (paper, fax, electronic means etc.):

·  legal opinions addressed by lawyers to their clients or intended for their clients;

·  correspondence between lawyers and their clients, and between lawyers – except correspondence marked as ‘official’;

·  meeting notes and, in general, all the elements of lawyers’ files, including all information provided to lawyers in the exercise of their profession;

·  clients’ names and lawyers’ agendas;

·  payment of fees and all operations involving funds carried out in application of Article 27 §2 of Law No 71-1130 of 31 December 1971; and

·  information required by statutory auditors or any third party (information that can only be communicated by the lawyer to his client).”

Legal professional privilege in the context of civil litigation

Pursuant to the lawyer’s professional secrecy, all documents and communications exchanged between a lawyer and his/her client are, as a principle, protected by secrecy and cannot be communicated to a third party, may not serve as evidence and their production cannot be compelled by a court.

In application of this principle, a lawyer cannot disclose the content of communications sent to a client or addressed to him/her by a client. The French Court of cassation (Cour de cassation) has for example ruled that a lawyer cannot in any case disclose the content of a letter addressed to him/her by the client even with the client’s authorization (Court of Cassation, 6 April 2004, n° 00-19.245).

However, the client not being bound by professional secrecy, he/she can use exchanges or documents covered by professional secrecy. The French Court of Cassation has for example ruled that a lawyer’s client can communicate a copy of a letter he/she has sent to his/her lawyer in the interest of his/her defence (Court of Cassation, 26 March 2008, n° 06-88.674).

Legal professional privilege in the context of criminal investigations

In the context of criminal litigation, the same rule applies. Moreover, Article 432 of the French Code of Criminal Procedure expressly forbids the use of correspondence exchanged between the defendants and their lawyers as evidence. However, if a lawyer is suspected of committing a crime or being an accomplice to a crime, client exchanges may be used as evidence before the French criminal courts for the strict requirements of the lawyer’s own defence.

Note that, in addition, when (i) acting in a fiduciary capacity, participating on behalf of their client in any financial or real estate transaction or (ii) assisting their clients in the preparation or execution of specific transactions or (iii) providing, directly or through any intermediary, advice on tax matters, French lawyers are required to disclose their suspicions of tax fraud or financial offences to the authorities (Tracfin) via their Bar President (Articles 561-2 and following of the French Monetary and Financial Code, CMF).

Legal professional privilege in the context of investigations by the antitrust / competition authority

The above-mentioned principles also apply in the context of investigations by the antitrust / competition authority.

The French Cour de Cassation has held that a seizure of documents en masse is valid despite the fact that it includes legally privileged documents (27/11/2013; 12-80336). However, the Court has also held that documents covered by professional secrecy must be returned (24/04/2013; 12-80336).

The concept of legal professional privilege as such does not exist in France because disclosure requirements in French litigation are extremely narrow. As a result, rules of legal professional privilege protecting documents from disclosure have not developed in France like they have in England and Wales, the US and other common law jurisdictions. Legal advice provided by a lawyer to their client is, instead, protected by professional secrecy.

Professional secrecy is a general obligation not to disclose secrets, imposed on all persons who, in light of their professional status, have access to such secrets. The obligation is sanctioned both by criminal law (art. 226-13 Criminal Code) and by disciplinary measures.

The question of whether a document is protected by professional secrecy in France is determined not by the content of the communication, but by the role of the author and/or of the recipient. In essence, a lawyer is prohibited from communicating information acquired in the course of assisting a client. This obligation is of public order. It is general, absolute and unlimited.

1) Privilege in Investigations

a) Is there a specific legal privilege arising in the context of internal investigations, criminal investigations and/ or data protection matters? If yes, what are the elements required for these categories of investigation?

Professional secrecy applies to any information disclosed by client to their lawyer during an internal investigation. Even though the client may subsequently freely disclose the lawyer conclusions to third parties, such conclusions are covered when they relate to information communicated by the client to their attorney.

However, professional secrecy will not apply to information communicated by third parties to an attorney during an internal investigation. In this context, an attorney has to inform said third parties before any communication that their exchanges will not be covered by professional secrecy of the attorney and thus may be disclosed in all or part.

French professional secrecy applies in the context of criminal investigations. Moreover, Article 432 of the French Code of Criminal Procedure expressly forbids the use of correspondence exchanged between the defendants and their attorney(s) as evidence. However, if an attorney is suspected of committing a crime or being an accomplice to a crime, client exchanges may be used as evidence before the French criminal courts for the strict requirements of the attorney’s own defense.

Please note that the French law No. 2021-1729 of December 22, 2021 “for confidence in the judicial institution” has created exceptions to the French attorneys professional secrecy. Article 3 of that law provides that legal privilege is not opposable to the police and judicial investigations measures relating to offences of tax fraud, corruption and the financing of terrorism as well as the laundering of these offences. However, in such cases, the competent Bar Head (Bâtonnier), its representative or the person at whose premises the search of investigation measures take place may object to the seizure of a document and require that this objection be examined by the Judge of Liberty and Custody (Juge de la détention et des libertés). According to Articles 18 and 19 of Law No 78-17 on information technology, data files and freedom, professional secrecy can be opposed to a request from the French Supervisory Authority (Commission Nationale de l’Informatique et des Libertés (CNIL)) to provide information or documents that are covered by such professional secrecy.

b) Are there specific time periods which apply to legal privilege? Do they vary depending on whether the privilege relates to legal advice or litigation?

Professional secrecy applies from the beginning of the exchange between an attorney and the client.

Pursuant to Article 2 of the Réglement Intérieur National (RIN) of the French Bar Council, French professional secrecy applies in all matters, whether it be legal advice or litigation. Secrecy applies no matter when a document was created and regardless of the support, whether physical or electronic (eg paper, fax, email).

Professional secrecy covers, notably:

• legal opinions addressed or meant to be addressed by lawyers to their clients
• correspondence between lawyers and their clients, and between lawyers – except correspondence identified as “official”
• meeting notes and, in general, all the elements of lawyers’ files, including all information provided to lawyers in the exercise of their profession
• clients’ names and lawyers’ agendas
• payment of fees
• information required by statutory auditors

c) Are communications to / by companies and in-house counsel protected by privilege?

As a matter of French law, in-house counsel (juristes d’entreprise) are considered to be a separate profession and do not enjoy the same status as attorneys who are members of the Bar (avocats). Under French law, in-house counsel are subject to professional secrecy obligations regarding information that can be characterized as “business secrets” received within the framework of their position in the company. In-house counsel are also prohibited from voluntarily sharing with non-authorized third parties legal advice they provide to the company they work for. A breach of this obligation is deemed a criminal offence (Article 226-13 of the French Criminal Code).

Nonetheless, French courts do not extend the full professional secrecy coverage to communications between in-house counsel and employees, officers or directors of a company in the context of obtaining legal advice. The European Court of Justice confirmed this principle in the Akzo Nobel judgment in an EU competition context. As a result of the French courts' position and the Akzo Nobel judgment, French authorities investigating antitrust and competition law issues can make use of internal company legal advice.

Furthermore, in-house counsel (unlike external lawyers) are obliged to testify if called or to provide evidence regarding their employers.

Lastly, the French Cour de Cassation recently decided that French law will be applicable to determine whether legal professional privilege applies to communications with in-house counsel from other jurisdictions, not the local law of the country in which the communication was made.

d) Are there any specific requirements of a privileged incident response engagement letter?

In practice, to ensure professional secrecy applies, it should be made clear that the document has either been drafted by or is intended for a lawyer, and has been prepared in connection with the request for or provision of legal advice.

2) Documents and Reports

a) Does privilege protect notes or transcripts of employee interviews, third party expert reports or expert reports prepared or obtained for the purpose of giving legal advice?

Yes, according to Article 2.2 of the National Rules of Procedure (Règlement Intérieur National (RIN) of the French Bar Council, professional secrecy applies to interview notes and more generally to each element of the file, information and confidence received by the attorney who is a member of the Bar (avocat) in the performance of their position.

Regarding experts, unlike attorneys who are members of the Bar (avocats), such third parties are not subject to professional secrecy. They may, however, be subject to professional secrecy obligations regarding information that can be characterized as “business secrets” received in the framework of their position. 

Furthermore, the client, not being bound by professional secrecy, can use exchanges or documents covered by professional secrecy. Therefore, any document, such as the final report, employee interviews or expert reports may be communicated by the client and will thus no longer be protected by professional secrecy.

b) Does it matter whether the documents are located at the premises of the client or the lawyer?

No, the location of the documents does not affect the application of professional secrecy.

c) How are seized documents put into evidence in a criminal / civil procedure?

Documents covered by professional secrecy cannot be seized during a criminal procedure, unless such seizure is expressly authorized by a judge (for instance, when the documents concerned reveal the participation from an attorney to a criminal activity).

3) Waiver of Privilege

a) Are there exceptions to the legal privilege rules in your jurisdiction, such as waiver? If yes, what are the elements required to establish these and are there practical steps that can be taken to ensure that privilege is not lost?

Response to the first question regarding the waiver:

A client can opt to use a document covered by professional secrecy, but the client cannot release the attorney from their professional secrecy obligations. Professional secrecy may, however, be waived in the interest of the defense of the client or in the interest of the defense of the attorney where they are personally facing judicial proceedings.

In the latter circumstance, the production of protected documents must be essential to the attorney’s defense.

Response to the second question:

The client should make sure to inform its employees (if any) of the confidential nature of the document. The concerned file(s) on the client’s computer (if any) should indicate that the information contained in it is covered by professional secrecy.

b) In data breach litigation does a company ever need to rely on the findings of internal investigations and if so does that mean privilege has been waived?

A company cannot be required to disclose the content of an internal investigation in civil litigation if this investigation is protected by professional secrecy.

A company may, however, choose to disclose the content of an internal investigation that is protected by professional secrecy. In this case, the disclosed content of the internal investigation will no longer be protected by professional secrecy.

In addition, it must be noted that where information covered by professional secrecy (in the specific case, medical secrecy) might be disclosed during a public hearing, the CNIL has already granted a request for a closed hearing (Deliberation of the CNIL No SAN-2020-015 of 7 December 2020).

c) If reliance means a waiver, does notification to affected individuals of the findings of internal investigations or a sharing of the findings with third parties mean a waiver, too?

The sharing of the content of an internal investigation that is protected by professional secrecy to third parties or affected individuals means the company waives professional secrecy in regards to the disclosed content of the investigation. Thus, the disclosed content of the internal investigation will no longer be protected by professional secrecy but the remaining information that was not disclosed remains covered by professional secrecy.

4) Privacy Litigation

a) Were there any data breach privilege cases in your jurisdiction in the last five years? If so, please provide details.

To the best of our knowledge, there has not been any published case of civil litigation in regards to GDPR in France as of the date of this report.

b) Are there any rules and or cases in the jurisdiction that deal specifically with privilege in a multi-state/ cross-border scenario?

Communications between French lawyers and foreign lawyers will be subject to professional secrecy only if certain precautions are taken (Article 3 RIN).

For EU lawyers, such precautions may consist of clearly marking communications as “confidential” and/or entering into a confidential agreement covering any, or specified types of, communication (Article 5.3.1 of the Code of Conduct for Lawyers in the EU).

The French Cour de Cassation has ruled that whether professional secrecy covers communications between lawyers registered in two different countries will depend on an analysis of the provisions of the applicable foreign laws.

From a data protection standpoint, to the best of our knowledge, there has not been any rules and/or cases in France that deal specifically with privilege in a multi-state/cross-border scenario.

c) Would privileged data outside your jurisdiction be treated as privileged data in your jurisdiction?

Communications between French lawyers and foreign lawyers will be subject to lawyer’s professional secrecy only if certain precautions are taken (Article 3 of the RIN), as applicable provisions in other jurisdictions regarding lawyer’s professional secrecy may not be enforced before French courts.

As already mentioned, for communication between EU lawyers, the precautions must include the sender clearly expressing their wish for the communication to remain confidential or without prejudice before communicating the first documents. If the prospective recipient of the communications is unable to ensure their status as confidential or without prejudice they should inform the sender accordingly without delay (Articles 3.3 of the RIN and 5.3 of the Code of Conduct for Lawyers in the EU). Then, the lawyers’ communications should be marked as “confidential” or “without prejudice.”

For communication with non-EU lawyers, the precaution must include the sender making sure that, before exchanging confidential information, the country where the foreign fellow lawyer practices has rules that ensure the confidentiality of the correspondence. If not, the lawyer must enter into a confidential agreement covering any, or specified types of, communication with the non-EU lawyer or ask their client if they accept the risk of exchanging non-confidential information (Article 3.4 of the RIN).

d) How is privileged data in your jurisdiction treated in the event of a civil/ criminal investigation outside the jurisdiction to ensure privilege is maintained?

The French notion of lawyer’s professional secrecy might not be enforced before courts of another country. It is then crucial for a lawyer to make sure of the rules applicable in every jurisdiction to control the scope of each national lawyer’s professional secrecy.