“This text marks the death of professional secrecy.” Nicolas De Sa-Pallix, president of the French Lawyers ‘Union (Paris section), does not hide his anger at a possible questioning of the protection of lawyers’ professional secrecy, about to be voted on by Parliament.
In question, an amendment to the bill for “confidence in the judicial institution”, adopted Thursday, October 21 in a joint committee, this body composed of seven deputies and seven senators responsible for finding a compromise on a text in the event of disagreement between the two chambers. The text must soon be voted on by the two assemblies, which no longer have the possibility of modifying it, which alarms lawyers and unions.
Until now, the secrecy of exchanges between a lawyer and his client was inalienable. Guaranteed by the law of December 31, 1971, professional secrecy applies both in the defense of litigants and in the field of advice. “Of course, this procedural guarantee is not intended to immunize the lawyer, nor his client for that matter”, recalls Charles Ohlgusser, lawyer and president of the Union of young lawyers of Paris.“If the lawyer is involved in his client’s offense, then there must be a sanction.”
In the version of the bill currently being adopted by Parliament, two exceptions to the protection of professional secrecy are included in article 56-1 of the Code of Criminal Procedure, within the framework of advisory activities. If the text is adopted, professional secrecy could thus be lifted if financial offenses are suspected. The following are targeted: tax fraud, terrorist financing, corruption, influence peddling and money laundering of these crimes.
We wake up annoyed by what happened yesterday. #secretPro
A breach has been opened in professional secrecy. A breach resulting from a transaction between deputies and senators.
They played with a fundamental guarantee and turned it into a “compromise”. 1 / pic.twitter.com/o8wSricSGi
– Charles Ohlgusser (@c_ohlgusser) October 22, 2021
For lawyer Charles Ohlgusser, this amendment, “vague” and “imprecise”, makes its scope “impossible” to understand. The text aims in particular “consultations, correspondence or documents held or transmitted by the lawyer or his client” who would establish “proof of their use” to commit an offense. “How can a coin prove that it is used?”, chokes the lawyer.
But what worries the profession even more is the second paragraph of the text, “simpler but much more dangerous”, according to lawyer Nicolas De Sa-Pallix. Professional secrecy is lifted as soon as the lawyer “is the subject of maneuvers or actions for the purpose of unintentionally allowing the commission or prosecution or concealment of an offense”, states the bill. In this paragraph, the type of offense is no longer specified. “So, potentially, anything can fit into this definition”, anticipates the lawyer.
“With this sentence, we create a quasi-offense of passive complicity of the lawyer.”
Nicolas De Sa-Pallix, lawyerto franceinfo
As soon as a lawyer gives advice, “it will be presumed that he would have participated, without his knowledge, in the commission of an offense and his files will be seized”, interprets the lawyer.
A priori, the litigation activities of lawyers are not affected by this evolution of the law. Corn “the border between the two is porous, because advice can turn into litigation”, remember Charles Ohlgusser. “This is why we have always insisted that professional secrecy be complete, which will no longer be the case.”
Business lawyers, much of their business relying on advice, are particularly concerned. “When a client wants to know if the activity of the company that he intends to buy or set up in France complies with French standards, his lawyer will fall within the scope of this amendment, anticipate Charles Ohlgusser. “Customers will no longer have an interest in seeking advice from their lawyer at the risk of self-incrimination and companies will be dissuaded from settling with us”, he believes.
The lawyers are also concerned that the wording of the text, which they believe is imprecise, will allow an interpretation “limitless” from the authorities, who risk of“enter the breach as much as possible”, according to Nicolas De Sa-Pallix, who thinks that“at the slightest pretext, we can come and search a lawyer’s office”.
“We know that in criminal proceedings, as soon as you have an exception, it is then heard, and the derogatory measures come step by step.”
Nicolas De Sa-Pallix, lawyerto franceinfo
This text opens the door to a “legal uncertainty”, underlines Julien Brochot, lawyer at the Paris bar and member of the Council of the Order. “Not only for lawyers, but above all for our clients who will no longer trust us because we will no longer be able to assure them of professional secrecy which is the guarantee of the interests of the rights of the defense and a fair trial.”
The day before the arbitration in a joint committee, representatives of the main lawyers’ unions, and some 150 big names in the profession, expressed their fears in a column published in The world (subscribers article), written under the aegis Charles Ohlgusser. Mobilized “to the maximum” so that the government reconsiders this text, the profession is ready, if necessary, “to seize the Constitutional Council as soon as the law is promulgated”, assure Nicolas De Sa-Pallix.