Debate on the extension of the solicitor-client privilege in France

The principle of solicitor-client privilege guarantees to every citizen that there is no interference from public authorities in their defence, whatever they may have done.
This principle is established in article 66-5 of the Law n°71-1130 of 31 December 1971 and applies in all matters, whether it is in the field of counsel or defence. This principle protects the consultations addressed by a lawyer to their client, the correspondences between the lawyer and the client or between two lawyers, interview notes and all the documents in the file. Articles 6 and 8 of the European Convention on Human Rights also protect the solicitor-client privilege.
It is a fundamental principle since it guarantees the right of the person to speak openly to their lawyer and obtain a legal advice without worrying that it would one day be used against them.
A bill for confidence in the legal institution , adopted by the French Parliament on first reading, extends the solicitor-client privilege with a new preliminary article in the Procedural Criminal Code that would state that respect for the professional secrecy of the defence is guaranteed during the proceedings.
This article extends the protection of the professional secrecy of lawyer to the counsel activity, which means that searches in a law firm, wiretap on a lawyer’s professional or private line and access to his detailed telephone bills would only be possible if the lawyer is suspected to have committed or to have tried to commit a criminal offence.
The magistrates and investigating authorities were worried that this extension of the protection to the counsel activity would harm the investigations in the economic field. For example, a client could have fictive exchanges with their lawyer to protect documents that would incriminate them for tax fraud or corruption.
Faced with these difficulties, the Law Commission of the French Senate voted an amendment to the bill for confidence in the legal institution stating that the professional secrecy of the counsel activity would not apply for investigative and fact-finding measures relating to tax fraud, corruption, or the laundering of these crimes.
This amendment means that the professional secrecy of the counsel activity cannot be an obstacle to investigations in a law firm with regard those offences. This limit would be justified by the constitutional objective of preventing breaches of public order and offences and France’s international commitments, in particular with regard to the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions.
The National Bar Council voted a motion against this amendment. Indeed, it stated that the professional secrecy in the counsel’s field would not apply even though the lawyer has not participated to the commission of the offences prosecuted. This would ruin the confidence a citizen can have in their lawyer and in the justice system. Furthermore, the National Bar Council denounced the confusion between the litigant’s documents, which are not covered by the solicitor-client privilege and which can be taken in the context of a criminal investigation, and the consultations with a lawyer, the correspondences between the lawyer and the client and the bills the lawyer sends to his client, which are covered by the professional secrecy and which should not be seized, except if they contain evidence of the lawyer’s implication in a criminal offence.
Although an amendment to this effect, asking to delete the additional phrase, has been presented Article 3 of the bill is keeping the limitation to the solicitor-client privilege and not the counsel’s activity.