Laurent Cohen-Tanugi on the French legal privilege

Laurent Cohen-Tanugi Avocats is a Paris-based boutique law firm specialising in cross-border strategic assignments, including anti-corruption monitorships, transatlantic white-collar litigation, and other international regulatory compliance matters. The firm’s practice areas also include cross-border M&A transactions and international arbitration.

Laurent Cohen-Tanugi, its founder and managing partner, handled major international M&A transactions as a partner of Cleary Gottlieb Steen & Hamilton and Skadden Arps, as well as general counsel of global pharmaceutical company Sanofi. A member of the Paris and New York Bars, he subsequently served as FCPA independent corporate monitor appointed by the US DOJ and SEC, as well as World Bank integrity monitor.

He discusses in the interview below the evolving landscape of French legal privilege rules.

Has there been progress in the protective scope of the French legal privilege?

The French legal privilege is traditionally a hot topic, regularly debated between the French Bar and the Judiciary. Revealing of a climate of tension between judges and lawyers, and more broadly of a distrust of lawyers in a system centered around the ascertainment of the truth, the French legal privilege is continuously subject to encroachment.

Narrower than the US and UK legal privileges, the French legal regime traditionally makes a distinction between ‘advisory’ and ‘defence’ professional secrecy, with the latter applying in the context of criminal proceedings. According to the longstanding interpretation given by the Criminal Chamber of the French Supreme Court (Court of Cassation), only the latter could be invoked when facing requisitions from prosecution authorities.

Additionally, the French legal privilege does not apply to in-house counsels, who are a distinct profession from the French avocats, and cannot be members of the bar, in spite of recurring requests from the corporate sector. This rule applies regardless of whether the in-house counsel might be qualified to practice as a lawyer in France, or in another country which legislation protects in-house legal privilege.

That being said, recent developments have redefined the boundaries of the French legal privilege.

In what way?

First, following tense debates between French trial attorneys, the Parliament, and the government, France eventually adopted in December 2021 a ‘Law on Trust in the Judiciary,’ followed by an interpretative circular in February 2022. The law enshrined in the Code of Criminal Procedure respect for both defence and advisory professional secrecy during criminal proceedings, thus seemingly overcoming the traditional distinction between the two concepts, except in cases of tax fraud and integrity violations. In those instances, the law provides that advisory professional secrecy may not be invoked against investigative measures when the communications held or transmitted by a lawyer or his/her client establish proof of their use to commit or facilitate these offences. In a criminal defence context, the law added further protections in connection with dawn raids at a law firm’s premises.

However, the implementing circular obscured the interpretation of the law, appearing to backtrack on the protection of the advisory professional secrecy. Pursuant to the circular, advisory communications between a lawyer and his/her client would only be protected when they relate to the exercise of the rights of the defence, ‘when a person has committed or believes he or she has committed an offence, but not when advice is sought from a lawyer before the commission of an offence’. This chronological distinction may be hard to draw and, therefore, casts a doubt as to the extent of the protection.

Subject to future rulings of the French Court of Cassation, it appears that the legal privilege protection would apply when a person expects to be prosecuted soon or when it is aware that it has committed a criminal offence, even though no criminal proceedings have yet been initiated. Indeed, the circular considers that such a person is already preparing its defence. However, advice sought prior to any commission of an offence would not be covered by such protection. For instance, a client seeking a criminal risk analysis
on some corporate conduct could benefit from the French legal privilege, unless prosecutors demonstrate that the advice was not used to prepare the client’s defence, but rather to help commit the offence. Although the French legal privilege finds itself slightly better protected than previously, this ambiguous progress did not convince the Paris Bar, who has challenged the new framework before the Constitutional Council. The Council rejected the Paris Bar’s claim in January 2023.

Further, in an unprecedented decision, the Criminal Chamber of the French Court of Cassation opened room for protection of in-house counsel, by ruling in January 2022 that conversations between in-house counsel may benefit from the protection conferred by the attorney-client privilege, specifically when they refer to confidential data communicated by the lawyer to his/her client for the purpose of his/her defence. Therefore, the Court of Cassation confirmed that the content of such communications should prevail over the status of the persons between whom the information was exchanged.

While promising, the new regime remains ambiguous and will have to be tested in courts.

What would you recommend to a global company facing criminal proceedings in France?

Companies should take a close look at the state of play on the French legal privilege, which remains in flux in light of the developments I just described. However, it is worth noting that the French authorities may concede on a case-by-case basis claims of foreign (in particular, US) legal privilege. The joint guidelines from the National Financial Prosecutor and the French Anticorruption Agency provide that prosecutors should take into account the risk of waiver by a foreign company of its foreign legal privilege. Companies should, therefore, firmly assert foreign legal privileges wherever applicable and justifiable, especially if they are subject to criminal proceedings in other jurisdictions.