A significant difference between the French and U.S. and UK legal systems is in the understanding of legal privilege: it does not exist for in-house counsel in France.
The French approach is in line with the 2010 Akzo decision, in which the Grand Chamber of the European Court of Justice (ECJ) ruled that the requirement of independence means the absence of any employment relationship between the lawyer and his client, so that legal professional privilege does not cover exchanges within a company or group with in-house lawyers.
The principle of professional confidentiality (‘secret professionnel’) in France only covers communications between lawyers and between lawyers and their clients. Such ‘secret professionnel’ is permanent and cannot be waived afterwards. Only co-called ‘official’ letters between French lawyers can be produced in court, as well as strictly procedural letters. In other words, communication between opposing counsels cannot be disclosed in principle.
Recognising that such a divergent position might affect the competiveness of the French legal system, there have been several attempts to find a way to recognise a form of legal privilege for in-house counsel. Initiatives were conducted in 1997, 2006, 2009 and 2011, that sought to establish a special status for in-house lawyers.
The recently proposed bill on growth and economic activities (‘Projet de loi Macron’) presented by the French Minister for Economic Affairs, Emmanuel Macron, has tackled this issue again. In its article 21-1, the bill proposed the innovative idea of creating a real statute for the ‘Avocat d’entreprise’, the company lawyer, and recognising legal privilege for in-house lawyers.
Although supported by the Paris Bar, this new initiative was rejected by the Special Commission of the French National Assembly, before being adopted in an expedited procedure by the lower chamber. The bill is now being discussed in the French Senate.
Interestingly, despite this new setback, the possibility of recognising the confidentiality of in-house lawyers’ communications was left open to further discussions, and several amendments to the proposed bill were put forward.
Notably, one of them proposes to modify Act n° 71-1130 of 31 December 1971 reforming the legal profession, in order to extend legal privilege to the communications of chief in-house counsel. Another proposes to recognise, on a more general basis, the confidentiality of in-house lawyers’ communications.
However, the key issue underlying forthcoming discussions on this matter will remain the close ties between in-house lawyers and their employers, which is seen as potentially impairing their independence.
Even if these proposed amendments are accepted, of course, there would remain the critical question of whether they are compatible with the ECJ ruling in Akzo.
In that respect, things have not yet changed in France.