Lobbying battle over lawyer secrecy

When he’s not happy, the boss of the lawyers’ lobby pulls out the sulphur. “The senatorial majority was more concerned with the arguments of senior officials adept at suspicion than with those intended to protect the French: Technocracy 1 / citizens 0… The senators had accustomed us to more courage in recent months!”, tweeted Jérôme Gavaudan, the president of the National Bar Council (CNB), on September 29, the day after the vote on the bill of confidence in the judicial institution. The reason for his anger: the senators challenged the version of the deputies, very favorable to lawyers and the protection of their professional secrecy. A device that has been the subject of an intense lobbying battle for months.

Originally, the Keeper of the Seals, Éric Dupond-Moretti, wanted to strengthen the protection of correspondence between lawyers and their clients. A reform that he had already defended many times when he practiced as a criminal lawyer, and in particular after having seen his detailed telephone bills (“fadettes”) peeled in the case of wiretapping of Nicolas Sarkozy. His bill therefore plans to include in the code of criminal procedure, the fact that “respect for professional secrecy of the defense is guaranteed during the procedure.” The text also more strictly frames searches in cabinets and wiretaps. Obviously, the CNB is in heaven and decides to push its advantage to pass an old claim: the extension of the protection of professional secrecy to advice.

Amendments guided by lawyers

The 1971 law on the profession of lawyer already guarantees that exchanges between lawyers and their clients are covered by professional secrecy “whether in the field of advice or in that of defence”. In practice, this secrecy is not necessarily opposable to the investigators. “There has been a jurisprudential drift in recent years, with judges interpreting the law in such a way that secrecy does not cover tax or competition law advice”, plague Jérôme Gavaudan, who denounces the “drifting nets” of investigators during searches. The CNB therefore besieged the parliamentarians, mobilizing the local presidents of the bar, to obtain more protection.

The success is there: the political groups in the Assembly have all tabled identical amendments, taking up almost unchanged the wording proposed by the CNB, adding the secrecy of the activity of advice to that of pure criminal defense and hard. Consequently, any document bearing the seal of the lawyer could not be seized. “At a time when freedoms are restricted, by voting for a state of emergency or a health pass, the deputies were sensitive to this text which restores freedoms and protects the rights of litigants”, assures Jérôme Gavaudan, in a curious shortcut.

Even La France insoumise, yet at the forefront in the fight against financial crime, joined the discourse. “We cannot make a simple break between the council and the defense, justifies the deputy Ugo Bernalicis, author of a report on financial justice. But the amendment will not prevent the search and seizure of documents if there is attorney’s suspicion of offence.” As for the government, it has adopted a very ambivalent position. The Keeper of the Seals gave “an opinion of wisdom”, neither favorable nor unfavorable. And, “at the same time”, he passed another amendment specifying that, in order not to be seized, the documents must at the same time be linked to the secrecy of the council and to the rights of the defense. What limit, in theory, the scope of the text of the deputies.

Magistrates wind up

But this was insufficient to prevent an outcry from NGOs, such as Transparency International, and magistrates. Heard by the Senate, the French Association of Instructing Magistrates believes that “any investigation in the economic environment could be hampered”. For the head of the National Financial Prosecutor’s Office (PNF), Jean-François Bohnert, this reform “would have the effect of weakening the public policy repeatedly reaffirmed and in-depth in the fight against tax evasion and against international corruption.” It must be said that tax lawyers are increasingly in the sights of the PNF, for their role in the development of sometimes abusive arrangements. One of them was sentenced in the Arlette Ricci case, a fraudster on the HSBC list, and another is sent to corrections in the Wendel case. “It would have been very complicated to get these cases out with such a text,” sighs an investigator.

These arguments seem to have convinced the majority of senators. “Absolute and unlimited secrecy, defended by the CNB, is not in accordance with the spirit of the law and would offer French lawyers a completely privileged situation in Europe, by cutting the link with the traditional exercise of the rights of the defence”, estimates Agnès Canayer, co-rapporteur of the bill. Without opposing the extension of secrecy to the board, Senator LR passed an amendment stipulating that it would be unenforceable in cases of tax evasion, corruption and influence peddling, in France and abroad. .

A text described as a “stab in the back”, by Jérôme Gavaudan, who promises “ten years of jurisprudence” to come, with appeals of all kinds against its application. But the CNB is far from having lost the battle, quite the contrary. A joint committee, bringing together parliamentarians from both chambers, must try to find a compromise by the end of the month. Otherwise, the National Assembly will have the last word.

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