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
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
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
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.
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