Le text, which will be discussed in public session on April 30 by the National Assembly, relating to the confidentiality of consultations by corporate lawyers, also called legal privilegeconstitutes a double trap: for the companies themselves and for economic democracy.
There proposed law by Jean TerlierRenaissance deputy from Tarn, which was only adopted by a very small majority of four votes in the law committee on April 10, provides that the consultations that company lawyers send to their management benefit from confidentiality, that they cannot be seized by the administrative authorities and that they remain secret from those who would call them to account before the civil or commercial judge.
Contrary to popular belief, this confidentiality is not an issue of economic attractiveness. French companies are no less attractive than their European counterparts who benefit from it. In 2023, France was first in Europe in terms of welcoming foreign investments, for the fourth year in a row, according to Business France.
French companies will believe they are protected
Nor will it create a barrier between French companies and foreign administrations.
First of all, the amended text provides that it cannot be opposed to the European administration. This is ultimately fortunate, since the case law of the Court of Justice of the European Union would not have accepted it, the in-house lawyer not having in his view sufficient independence given his relationship of subordination, like any employee, with regard to his management (aAkzo Nobel Chemicals ruling of September 14, 2010 – CJEU Grand Chamber – C-550/07 P).
The protection will not work for other foreign countries either, particularly the United States. The decision in Upjohn Co v. United States, rendered in 1981 by the Supreme Court of the United States (source: Justia), which establishes the principle of recognition of legal privilege between the lawyer and his management, can only apply if its author is a lawyer. However, Mr. Terlier’s bill as well as the parliamentary work establish as a principle the refusal of the lawyer in business (in-house counsel in American law).
Consequently, in the event of a vote on this text on April 30, French companies will believe themselves to be protected, whereas, upon first inspection by the American administration, this confidentiality will be refused to them.
THE legal privilege would also be a step backwards for business ethics. French companies are subject to numerous standards and they are now increasingly asked to control not only their organization so that it is more virtuous, but also that of their subcontractors and suppliers. It is the reign of “compliance” (compliance control), which allows the State to make them support the generalization of respect for these rules.
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