Attorney-client communications doctrine
Identify and describe your jurisdiction’s laws, regulations, professional rules and doctrines that protect communications between an attorney and a client from disclosure.
In France, the protection of communications between attorney and client derives both from the obligation incumbent upon lawyers to maintain the secrecy of the information and documents exchanged with a client in their professional capacity as set forth in the laws, decrees and normative decisions regulating their legal profession, as well as from the criminal sanction attached to the violation of professional secrecy.
Specifically, attorney-client privilege is provided by article 66-5 of Act No. 71-1130 of 31 December 1971 reforming certain legal and judicial professions, which provides that:
In all areas, whether in the area of counsel or defence, written advice sent by lawyers to their clients or intended for them, correspondence between clients and their lawyers, . . . notes from meetings, and generally all the documents in the case file, are covered by professional secrecy.
It is further stated in Decree 2005-790 of 12 July 2005 relating to the rules of ethics of the legal profession (article 4), and in the National Rules of Procedure (RIN) of the legal profession (article 2), that professional secrecy is a matter of public policy. It is general, absolute and unlimited in time and forbids lawyers from making, in any matter, any disclosure in violation of that attorney-client privilege.
Violation of the lawyers’ professional secrecy may lead to disciplinary actions, and constitutes a criminal offence as per article 226-13 of the Criminal Code (‘The disclosure of secret information by a person entrusted with such a secret . . . is punished by one year’s imprisonment and a fine of €15,000’).
The lawyer is therefore prevented from testifying before any jurisdiction or government authorities, regarding the information entrusted to him or her in a professional capacity (Court of Cassation, Case No. 82-14.469 of 17 June 1983). This attorney-client privilege can likewise be opposed by the lawyer or client, objecting to the disclosure of protected correspondence, documents or information, seized or requested by the administrative or judicial authorities, in all matters, whether civil, administrative, commercial or criminal.
The interception of attorney-client communications in violation of this privilege could also constitute a criminal offence sanctioned by article 226-15 of the Criminal Code, which guarantees the secrecy of correspondence, and by article 432-9 of the Criminal Code when such violation is intentionally committed by an agent acting in its public capacity (Court of Cassation, Case No. 17-81.850, 27 February 2018).
Additionally, the protection of attorney-client communications is guaranteed through articles 6 and 8 of the European Convention on Human Rights (ECHR), as noted on numerous occasions by the ECHR whose case law often refers to attorney-client privilege as a fundamental requirement of a democratic society and as a corollary to the rights of the defence and the right against self-incrimination (Michaud v France, CEDH, Case No. 12323/11, section 118, 6 December 2012; Versini Campinchi v France, Case No. 49176/11, 16 June 2016).
In-house and outside counsel
Describe any relevant differences in your jurisdiction between the status of private practitioners and in-house counsel, in terms of protections for attorney-client communications.
Under French law, attorney-client privilege only applies to private practitioners who are registered to the Bar Association.
Identify and describe your jurisdiction’s laws, regulations, professional rules and doctrines that provide protection from disclosure of tangible material created in anticipation of litigation.
There is no equivalent of the ‘work product’ doctrine under French law. Attorney-client privilege theoretically covers communications as well as all other materials issued by an attorney in his or her professional capacity for the defence or advice of the client, and includes, to some extent, the work issued by the client or by third parties at the request of the attorney and addressed to him or her in that same capacity.
This is outlined in particular in the scope of attorney-client privilege defined by article 2.1 of the RIN of the legal profession, which expressly states that attorney-client privilege applies, in all areas and formats, whether material or intangible (eg, paper, fax or electronic media), to:
- the advice addressed by a lawyer to his or her client or intended for his or her client;
- the correspondence exchanged between the client and his or her lawyer;
- interview notes and more generally all documents in the case file; or
- all information and confidences received by the lawyer in his or her professional capacity.
In practice, however, the scope of attorney-client privilege has been increasingly narrowed by French courts, particularly in criminal cases, where only documents pertaining to a very strict exercise of the rights of the defence are shielded from seizure.
Recent case law
Identify and summarise recent landmark decisions involving attorney-client communications and work product.
French jurisprudence has substantially modified the protection of attorney-client privilege over the years. Essentially, the exception pertaining to the existence of evidence of the attorney’s involvement in the commission of an offence, allowing the privilege to be set aside, has been interpreted more and more broadly; while conversely, the scope of the ‘exercise of the rights of the defence’, which is supposed to neutralise this exception, has narrowed.
Although the exception has long existed in French case law (Court of Cassation, Case No. 74-92.792, 5 June 1975) and is common in most countries, the Criminal Chamber of the Court of Cassation has progressively increased its scope to legitimise search and seizures at attorneys’ offices, and wiretapping of telephone communications with clients.
While early cases initially specified that such measures had to be authorised by a magistrate, subject to the existence of evidence of the attorney’s involvements at the time of the authorisation (Court of Cassation, Case No. 96-83.753 of 15 January 1997), the courts gradually permitted incidental recordings of the attorneys’ conversations with clients without prior authorisation (ie, conversations incidentally recorded on the client’s phone for which no specific authorisation had to be requested (Court of Cassation, Case No. 00-83.570 of 8 November 2000); recordings of information outside the scope of the intended authorisation (Court of Cassation, Case No. 03-82.909 of 1 October 2003); or unauthorised recordings by private individuals of attorney-client conversations (Court of Cassation, Case No. 11-85.464 of 31 January 2012).
With two notorious decisions of 12 March 2016, the court allowed the recording and transcript of the phone conversations between a former French President and his attorney, while no prior evidence of the attorney’s criminal involvement existed at the time of the authorisation for such recordings but was in fact brought from the conversations themselves (Cases Nos. 15-83.205 and 15-83.206). It conversely narrowed the scope of the exercise of the rights of the defence, which would normally have allowed the protection to apply. To set aside privilege, the court decided that the conversations held between the former President and his lawyer about the criminal investigations in which he was a subject did not pertain to the strict exercise of the rights of the defence, on the grounds that the client had not yet been formally indicted, and that his lawyer had thus not been formally appointed.
These decisions have thus been identified by authors as landmark cases illustrating the trend of French jurisprudence towards a drastic narrowing of attorney-client privilege.
Nonetheless, a recent case issued by the Court of Appeal of Paris on 8 November 2017, has been viewed as a possible opening towards the recognition of an extended form of attorney-client privilege, protecting in-house counsels’ communications. In this case, the Administrative Authority for Competition Policy, Consumers Affairs and Fraud Control had seized several emails between employees and in-house counsels of a company. The seizure was challenged on the basis that the communications were privileged. Although the emails were not issued to or by the attorney, the Court noted that they were substantially based on the information he provided and recalled his verbatim recommendations. The Court therefore considered that these communications were part of the company’s defence preparation in the context of an ongoing investigation and related to the defence strategy elaborated by the attorney, so that as such, seizure of these communications by an administrative authority constituted a violation of the rights of the defence (CA Paris, Case No. 14/13384, 8 November 2017). This recent decision, issued in the context of the growing case law generated by objections to ‘administrative’ seizures in competition and fraud cases, could mark a movement of restoration towards a scope of attorney-client privilege more aligned with the legislator’s original intent.
Describe the elements necessary to confer protection over attorney-client communications.
According to the principles set out in the above-referenced laws and regulations, the protection of attorney-client communications, which stems from the lawyer’s obligation to maintain the secrecy of the information entrusted by the client, requires mainly that two conditions be satisfied: the information communicated must be deemed confidential, and it must have been entrusted in the strict professional capacity of the attorney.
As regards the first criterion, lawyers can disclose information that is public knowledge, unless the disclosure reveals additional details only known and acquired by the attorney in his or her professional capacity (Court of Cassation, Case No. 87-90.500, 7 March 1989; Court of Cassation, Case No. 03-17.972, 5 July 2006). Similarly, French law does not recognise as privileged the communications made in the presence of third parties not bound by attorney-client privilege (such as meetings with the adverse parties and their lawyers), as this would prevent the information to be regarded as confidential.
Regarding the second criterion, to be protected, the communications must be made to or by the attorney in his or her professional capacity. Hence, courts refuse to grant privilege to information shared on a personal (rather than professional) basis (Court of Cassation, Case No. 09-88.453, 2 March 2010), or where the correspondence does not appear to have truly been intended for the attorney.
On this basis, courts do not consider communications in which the lawyer is merely carbon copied and does not appear to be the intended recipient (CA Paris, Case No. 15/22520 of 8 March 2017). In such cases, courts will require the defendant who objects to the interception or seizure of such communications to demonstrate that it was covered by attorney-client privilege (CA Versailles, Case No. 16/01061, 25 January 2018).
When those conditions are satisfied, however, attorney-client privilege applies to all communications, in any format, regardless of whether the communication originates from the attorney or the client, and includes elements attached to the mail or email exchanged between the attorney and the client (Court of Cassation, Case No. 15-14.554, 6 December 2016).
Describe any settings in which the protections for attorney-client communications are not recognised.
In principle, communication shared with attorneys in their professional capacity will be regarded as privileged in all matters, whether as advice or defence, and in all proceedings, whether civil, administrative, commercial or criminal.
The privilege will not apply, however, when the communications are addressed to the attorney in a different professional capacity. The attorney may perform a number of other tasks for a client, such as acting on behalf of trust funds or as arbitrator, expert, mediator, conciliator, custodian, voluntary liquidator or executor of an estate (article 6.2 RIN). But these professional capacities do not pertain to the attorney’s typical professional capacity, and thus cannot claim attorney-client privilege and secrecy.
This has been particularly relevant in the context of internal investigations. The Report of the Paris Bar Association of 8 March 2016 states that attorney-client privilege should apply to communications between the company and the attorney, when the latter is entrusted to conduct the investigation as part of his or her general mission of advising and assisting clients. When, however, the attorney performs a mission of expertise, attorney-client privilege does not apply to the internal investigation, and he or she will thus have to ‘ensure that documents, correspondence and other exchanges relating to this investigation are separated from the files for which he or she is otherwise responsible as a lawyer, in order to preserve the professional secrecy’ (article 3.2, Appendix XXIV of the Internal Regulations of the Paris Bar, adopted by the Council of the Paris Bar Association on 13 September 2016).
The Prevention of Money Laundering and Terrorism Act No. 2004-130 of 11 February 2004, adopted after Directive No. 2001/97/CE, has also excluded attorney-client privilege when the attorney performs certain tasks outside his or her typical professional capacity. Attorneys must report to the President of the Bar Association, unusual transactions where they suspect the funds of originating from fraud, terrorism or other criminal offences (articles L561-15 and L561-17 of the Monetary and Financial Code). This obligation applies when the attorney participates in the name, and on behalf, of the client in any financial or real estate transaction or when acting as a trustee. The obligation also applies:
- when attorneys assist clients in the preparation or execution of transactions concerning the purchase and sale of real estate;
- in the management of funds, securities or other assets;
- when opening bank accounts; or
- in the creation, incorporation, management or direction of companies, trusts or endowment funds.
Attorney-client privilege will, however, remain when the attorney’s intervention relates to the anticipation of a judicial proceeding or when giving a legal opinion (article L561-3 of the Monetary and Financial Code).
The Military Programming Law (No. 2013-1168 of 18 December 2013) and the Law on Intelligence (No. 2015-912 of 24 July 2015) have broadly authorised interceptions of electronic correspondence and administrative surveillance, without providing specific guarantee of preserving attorney-client privilege, but with the proviso in the latter that such measures of interception cannot be enforced against an attorney ‘by reason of his or her mandate or profession’.
Finally, as explained in question 4, the attorney-client privilege can be set aside when there is evidence of the lawyer’s involvement in the commission of an offence. Article 100-5 and 100-7 of the Code of Criminal Procedure authorises, in such case, the investigating judge or investigating police officers to apprehend, record and transcribe written and oral communications between the attorney and the client, where such communication is deemed relevant to the ascertainment of the truth, unless it pertains to the attorney’s strict exercise of the rights of the defence. Article 100-7 of the Code of Criminal Procedure, allowing wiretapping of the attorney’s phone lines, and article 56-1 of the Code of Criminal Procedure, regarding searches and seizures at the professional or personal address of the attorney, require that the president of the Bar Association be informed prior to these steps taking place.
Who holds the protection?
In your jurisdiction, do the protections for attorney-client communications belong to the client, or is secrecy a duty incumbent on the attorney?
Both, to some extent. It is a duty incumbent on the attorney to maintain the secrecy over information and documents entrusted by the client, from which the attorney cannot be released, even by the client (Court of Cassation, Case No. 00-19.245, 6 April 2004). This is owing to the specific nature of the privilege, regarded in France both as a matter of public policy and as a protection benefitting the client. Only the latter can thus decide to waive the privilege by disclosing the protected documents (Court of Cassation, Case No. 14-20.521, 8 December 2015).
Underlying facts in the communication
To what extent are the facts communicated between an attorney and a client protected, as opposed to the attorney-client communication itself?
Everything the client and attorney communicate with each other, with regard to the attorney’s professional capacity, is theoretically protected, whether factual or analytical, including all the documents entrusted to the attorney or attached to their emails or letters (Court of Cassation, Case No. 15-14.554, 6 December 2016). This cannot be used, however, to conceal facts and documents otherwise discoverable, as such concealment would expose the attorney to a risk of criminal prosecution for obstruction of justice and discovery of the truth under article 434-4 of the Criminal Code.
In what circumstances do communications with agents of the attorney or agents of the client fall within the scope of the protections for attorney-client communications?
Attorney-client privilege does not extend to communications with third parties, even if pertaining to the defence of the client, as such correspondence is not included in the strict scope of an attorney-client communication.
Through consistent case law, the Court of Cassation has hence ruled that correspondence between a lawyer and his or her client’s chartered accountant is not covered by professional secrecy (Court of Cassation, Cases Nos. 09-66.688 of 15 June 2010 and 15-25.649 of 15 March 2017).
However, correspondence sent by a lawyer to his or her client with the purpose of transferring the work of another professional, pertaining to the case entrusted to the attorney (legal opinion of a law professor, audit, expert report) falls within the scope of attorney-client communications and can therefore be protected, along with the documents attached to this correspondence.
Corporations claiming protection
Can a corporation avail itself of the protections for attorney-client communications? Who controls the protections on behalf of the corporation?
A corporation can retain the services of an attorney and the correspondence exchanged between the corporation’s attorney and the directors and employees who represent it will be privileged (CA Paris, Case No. 15/22520, 8 March 2017).
Communications between employees and outside counsel
Do the protections for attorney-client communications extend to communications between employees and outside counsel?
Attorney-client privilege can apply equally whether the communications take place between the directors or their employees as long as the employees are addressed as agents of the corporation and not in their personal capacity (Court of Cassation, Case No. 15-15.359, 21 June 2017), and provided the information is shared by or to outside attorneys in the context of the attorney’s professional capacity with regard to the corporation’s defence.
Communications between employees and in-house counsel
Do the protections for attorney-client communications extend to communications between employees and in-house counsel?
Unfortunately not, as there is no equivalent in French law to the legal privilege recognised in other jurisdictions.
As discussed in question 4, a recent case has nonetheless been viewed as a possible inflection of this principle. In decision No. 14/13384 of 8 November 2017, the court decided that internal emails exchanged between employees and in-house counsels of the company were privileged because they reflected the defence strategy issued and shared by the attorney (CA Paris, Case No. 14/13384, 8 November 2017).
This solution is consistent with the settled case law of the European Court of Justice (ECJ) and its first instance courts; in particular, the landmark Hilti case of 4 April 1990 in which the Court stated that internal notes of the company reporting the content of advice received from outside counsels could not be deprived of the protection covering attorney-client communications on the sole ground that the content of those communications and of that legal advice was reported in documents internal to the company. It further expressed that the privilege should thus be regarded as extending also to the internal notes confined to reporting the text or the content of those communications (Order of the Court of First Instance of 4 April 1990, Case T30/89 - Hilti, section 18 et seq).
Communications between company counsel and ex-employees
To what degree do the protections for attorney-client communications extend to communications between counsel for the company and former employees?
As discussed in questions 11 and 12, communications between the outside counsel and employees acting as agents of the corporation relating to the specific matter entrusted to the attorney, are protected. Former employees are not necessarily prevented from acting as agent of the corporation in the interest of its defence if specific arrangements are made in that regard, but the corporation and the attorney will have to make sure that the former employee is identified as such. As regards past communications with a former employee, the secrecy the attorney maintains over communications does not cease.
Who may waive protection
Who may waive the protections for attorney-client communications?
Attorney-client privilege is not a duty incumbent on the client; it only aims to benefit the client, who is therefore free to disclose any communication, document and information exchanged with the attorney.
Actions constituting waiver
What actions constitute waiver of the protections for attorney-client communications?
Under French law, the privilege is attached to the attorney-client relationship, and thus to them personally. Any disclosure towards third parties to that relationship will therefore be regarded as a waiver unless the third party acquired it fraudulently (Court of Cassation, Cases Nos. 98-18.577 of 6 June 2001, 04-20.735 of 4 April 2006 and 08-13.596 of 30 April 2009).
Does accidental disclosure of attorney-client privileged materials waive the privilege?
Even if accidental, the disclosure to third parties, outside the strict attorney-client relationship, will break the protection. Hence, the internal distribution by using the ‘reply to all’ option of an email initially sent by a corporation’s attorney to various employees who were not originally recipients, has the effect of rendering the email public and causing it to lose its confidential nature (CA Poitiers, Case No. 16/00073, 27 February 2018).
Sharing communications among employees
Can attorney-client communications be shared among employees of an entity, without waiving the protections? How?
Correspondence initially sent by a lawyer to employees, then transferred internally to employees who were not recipients of the original message, is not a priori covered by professional secrecy (CA Poitiers, Case No. 16/00073, 27 February 2018).
However, as discussed in question 12, following a recent decision by the Paris Court of Appeal, it could now be argued that when an email is transferred to new recipients, but with a visible link to the defence and specific matters entrusted to the attorney, the protection of attorney-client communications should be extended to the internal communication of this information.
Describe your jurisdiction’s main exceptions to the protections for attorney-client communications.
As provided in particular by article 4 of Decree 2005-790 of 12 July 2005 relating to the rules of ethics of the legal profession, the interdiction for attorneys to make any disclosure in violation of attorney-client privilege is subject to the strict requirements of their own defence before any court, and to the cases of declaration or disclosure prescribed or authorised by law.
Attorneys are indeed permitted to disclose privileged information received from their clients, including attorney-client communications, to such an extent required to defend themselves before the courts (Court of Cassation, Case No. 87-82.073, 29 May 1989).
As for the ‘cases of declaration or disclosure prescribed by law’, recent laws on prevention of money laundering and terrorism provide an obligation upon attorneys to declare to the president of the Bar Association any suspicions of transactions where funds may have originated from fraud or other criminal offences, but only where the attorney is performing financial or fiduciary tasks for and on behalf of the client (ie, not when acting in anticipation of a litigation or trial, or when consulted for a legal opinion (see question 6)).
As discussed in questions 4 and 6, the main exception to protections for attorney-client communications is when there is evidence of the lawyer’s involvement in the commission of an offence, as the Code of Criminal Procedure and case law authorise, in such case, the seizure of attorney-client privileged documents where such documents are deemed relevant to the ascertainment of the truth, unless it pertains to the attorney’s strict exercise of the rights of the defence.
Litigation proceedings overriding the protection
Can the protections for attorney-client communications be overcome by any criminal or civil proceedings where waiver has not otherwise occurred?
See questions 4, 6 and 18. The Code of Criminal Procedure provides exceptions to attorney-client privilege when there is evidence of the attorney’s participation in a criminal offence.
Recognition of foreign protections
In what circumstances are foreign protections for attorney-client communications recognised in your jurisdiction?
There is no recognition of foreign protections under French law. Legal privilege of foreign in-house counsels will henceforth not be recognised by French courts (Court of Cassation, 3 November 2016).
Foreign lawyers, however, whether practising in France or not, should be guaranteed the same attorney-client privilege as French lawyers (Da Silveira v France, No. 43757/05, ECHR, 21 January 2010; Court of Cassation, No. 11-14.008, 3 May 2012).
Best practice to maintain protection
Describe the best practices in your jurisdiction that aim to ensure that protections for attorney-client communications are maintained.
In light of the recent case law that tends to narrow the scope of protection, best practices are as follows:
- Attorneys and clients must identify the documents exchanged between them as privileged and confidential, protected by attorney-client privilege or related to the legal advice sought from the attorney and pertaining to the exercise of the client’s right of defence.
- Attorneys and clients should exercise caution in any communications, whether written or oral, regardless of whether they might be, in principle, privileged. No substantial information regarding the case or defence strategy should be exchanged over the phone or in correspondence, and meeting in person at the attorney’s office is advised, whenever possible. Likewise, it is advisable to exercise caution in the terms used in the internal documents and memos, given the risk that the documents, although protected, be seized.
- In the case of corporations, these guidelines should be extended to directors and employees so as to maintain caution in internal emails, and to avoid accidental disclosure of privileged information. Corporations should also envisage setting up training sessions with the concerned staff to provide them with guidelines on how to react in a search and seizure situation.
- Attorneys and clients should make sure that they have secured ways of communications, and update electronic and connected devices to the best level of security possible so as to avoid unintended disclosure.
- Clients should not agree to surrender the privilege over protected documents or disclose protected information to the authorities.
- Clients should insist on the presence of the attorney in the event of a search to help them maintain privilege over protected information. Likewise, attorneys must request the effective presence of the President of the Bar Association, in the event of a search at their firm.
- Attorneys and clients should systematically object to the seizure of any protected document, and refuse to surrender their privilege, either through a claim regarding the irregularity of the measures, or by challenging the overall legality of the authorised seizure on grounds of nullity when applicable.
Describe the elements necessary to confer protection over work product.
Under French law, there is no specific protection conferred over work product as opposed to attorney-client communication. As explained above, all documents exchanged between the client and the attorney, in his or her professional capacity and in the interest of the client’s defence should thus be protected by attorney-client privilege.
The privilege extends to the work product (legal opinion, experts’ opinion, affidavits) requested from third parties by the lawyer in the interest of the client’s defence and added to the case file, protected as such under article 2.2 of the RIN.
The question of materials prepared and issued internally by the client is not directly addressed, however, under French law, which does not recognise legal privilege for in-house counsels.
As discussed in question 12, however, the case law of the ECJ has long recognised that such privilege extends to internal documents directly relating to the legal advice requested from outside counsel. The landmark Akzo Nobel case of 17 September 2007 further established that, to ensure the effective exercise of the rights of the defence, preparatory documents issued by the client should be covered by attorney-client privilege, provided they were drawn up exclusively for the purpose of seeking legal advice from a lawyer in the exercise of the rights of the defence, which should be ‘unambiguously clear from the content of the documents themselves or the context in which those documents were prepared and found’ (Court of First Instance, 17 September 2007, Case T-253/03, Akzo Nobel Chemicals, sections 120 to 124).
Describe any settings in which the protections for work product are not recognised.
Subject to the conditions described in question 22, work product can be protected as a corollary to attorney-client communications, and would therefore be subjected to the same exceptions (see question 6). This is only true, however, of work product issued by the attorney. Internal memos and other documents prepared internally by the client (unless it can be demonstrated that it was intended for the attorney and drawn up exclusively for the legal advice sought from him or her), will, in principle, not be considered privileged.
Who holds the protection
Who holds the protections for work product?
See question 7.
Types of work product
Is greater protection given to certain types of work product?
Theoretically, no. As long as it has been issued by the attorney in the context of the specific matter entrusted to him or her, it supposedly falls within the scope listed under article 2.2 of the RIN. In practice, however, the more factual the document is (as opposed to documents with legal analysis and thoughts of the attorney), the harder it becomes to demonstrate that it pertains to the attorney’s strict professional capacity and exercise of the right of the defence to shield it from potential seizures by judicial authorities.
In-house counsel work product
Is work product created by, or at the direction of, in-house counsel protected?
Not as such, and this applies, in particular, in the context of internal investigations where internal memos and preparatory work undertaken by in-house counsels are not confidential.
It could nonetheless be argued, following the case law of the ECJ (see questions 12 and 22), that some documents issued by the client (in-house counsels or any director or employee acting as a representative of the corporation) addressed to the attorney, exclusively for the purpose of the specific matter entrusted to the attorney, can be regarded as part of the exercise of the rights of the defence, and therefore covered by attorney-client privilege.
Work product of agents
In what circumstances do materials created by others, at the direction of an attorney or at the direction of a client, fall within the scope of the protections for work product?
The protection can extend to the work created by others (such as experts) at the direction of the attorney, or the client when it pertains exclusively to the specific matter entrusted to the attorney and the exercise of the right of the defence.
Third parties overcoming the protection
Can a third party overcome the protections for work product? How?
As explained in question 1, attorney-client privilege in French law stems from the necessary secrecy that must protect all information entrusted by the client, and this is regarded as a matter of public policy, which cannot be overcome by anyone.
Who may waive work-product protection
Who may waive the protections for work product?
As explained in questions 7, 14 and 15, the beneficiary of attorney-client privilege is the client, who may decide to waive the protection by disclosing the documents to third parties.
Actions constituting waiver
What actions constitute waiver of the protections for work product?
For attorney-client communications, the protection will be waived upon disclosure, whether intentional or accidental, to third parties that are not held by attorney-client privilege (see question 15 and 16).
Client access to attorney files
May clients demand their attorney’s files relating to their representation? Does that waive the protections for work product?
Clients may demand their case files, including all the procedural documents, exhibits and documents handed over by the clients, as well as documents issued by the attorney to the client (opinion, memos, notes). The attorney is not obliged to disclose his or her personal notes and drafts. Theoretically, this does not affect the protection for such documents, which applies wherever the documents are located. In practice, however, according to article 2.2 of the RIN, the attorney’s case file in itself is protected by attorney-client privilege, which makes the protected documents easier to identify and protect from seizure when the file is kept at the lawyer’s premises.
Accidental disclosure of work product
Does accidental disclosure of work-product protected materials waive the protection?
If the work product materials protected by the attorney’s professional secrecy is disclosed to third parties outside the strict attorney-client relationship, even accidentally, the privilege will be lost, unless it was acquired fraudulently.
Describe your jurisdiction’s main exceptions to the protections for work product.
See question 18.
Litigation proceedings overriding the protections
Can the protections for work product be overcome by any criminal or civil proceedings where waiver has not otherwise occurred?
See question 19.
Recognition of foreign protection
In what circumstances are foreign protections for work product recognised in your jurisdiction?
There is no recognition of foreign protections for work product under French law.
Who determines what is protected
Who determines whether attorney-client communications or work product are protected from disclosure?
In principle, as long as the documents or information fall under the conditions of article 66-5 of Act No. 71-1130, it should be regarded as privileged. In practice, however, protected documents are often seized in the course of searches and seizures.
As regards searches at the client’s premises, police investigators have to ensure that no protected document is seized (article 56 of the Code of Criminal Procedure). The lawyer should nonetheless be present to object to unlawful seizures of protected documents. Such seizures can be challenged before the Investigating Chamber (the appelate court for decisions of the investigating judge) or the trial courts. Searches and seizures of a lawyer’s office must be mentioned to the President of the Bar Association, who can be present or represented during the search and should object to the seizure of protected documents. The documents in question should be placed under provisional seal and transferred to a specific judge before which the legitimacy of their seizure is discussed (verifying that prior evidence of the lawyer’s criminal involvement justified the search and seizure, and that such evidence can be found in each of the documents seized to waive privilege). If the protection is recognised, the judge has to return them.
Can attorney-client communications or work product be shared among clients with a common interest who are represented by separate attorneys, without waiving the protections? How may the protections be preserved or waived?
If the materials are disclosed outside the restricted circle of the attorney-client relationship, they will no longer be protected. Although the privilege could theoretically be kept if the communications were shared between attorneys, according to the strict confidentiality covering communications between attorneys provided by article 2 of the RIN, the secrecy imposed on attorney-client communications prevents in fact attorneys from disclosing these elements to other attorneys.
Can attorney-client communications or work product be disclosed to government authorities without waiving the protections? How?
If the client agrees to defer to the request for documents or information at the request of the authorities, the privilege will be lost (Court of Cassation, Case No. 13-85.717, 17 December 2013).
Other privileges or protections
Are there other recognised privileges or protections in your jurisdiction that permit attorneys and clients to maintain the confidentiality of communications or work product?
There are no other specifically recognised privileges or protections to ensure attorney-client confidentiality that we know of.
Update and trends
Are there any other current developments or emerging trends that should be noted?
Law stated date
Correct as of
Other privileges or protections
Updates and trends
In the wake of the notorious cases of 12 March 2016, where the Supreme Court allowed a former French President and his lawyer’s conversations to be recorded and transcribed, attorney-client privilege has been the subject of many concerns and articles within the legal profession. The Court adopted a questionable interpretation of the exceptions pertaining to the attorney’s involvement in a criminal offence, and of the scope covered by attorney-client privilege, which was viewed as confirmation of a jurisprudential trend depriving the privilege of its effectiveness. This trend has been accompanied by an important number of search and seizures in attorney’s office over the past years, often in white-collar crime cases or implicating political figures. Simultaneously, the adoption of the Sapin II Bill and the growing number of transnational anti-corruption cases involving French companies triggered renewed concerns over the privilege of outside and in-house counsels in the context of internal investigations. The adoption of a legal privilege protecting in-house counsels’ communications was attempted upon adoption of the Sapin II Bill but the amendments were rejected. A Paris Court of Appeal case in November 2017, which extended attorney-client privilege to communication between employees and a company’s in-house counsels, has thus been seen as a first step towards recognition of a legal privilege, which has yet to be confirmed in future jurisprudence.