Why Lawyers Care So Much - THECHOWANIECS.COM

Why Lawyers Care So Much

This Thursday, October 21, Parliament is working on the bill
Wera Rodsawang/Getty Images This Thursday, October 21, Parliament is working on the bill “for confidence in the judicial institution”. A text that worries lawyers, anxious to preserve the secrecy that binds them to their clients (photo illustration).

Wera Rodsawang/Getty Images

JUSTICE – A desperate profession. This Thursday, October 21, the bill carried by the lawyer and Keeper of the Seals Éric Dupond-Moretti on “confidence in the judicial institution” arrives in a joint committee in Parliament, which means that the National Assembly and the Senate failed to agree on a common version of the text. And one point among others is a bone of contention: the professional secrecy that binds lawyers to their clients.

The main organizations representing the profession have even published a column in The world Wednesday, October 20 to warn of the risks presented by the text, and in particular its article 3.

Simon Warynski, President of the National Federation of Unions of Young Lawyers, and Charles Ohlgusser, President of the Union of Young Lawyers Paris, the main representatives of lawyers under 40 in the provinces and in the capital, explain to the HuffPost which worries them so much.

Where does your concern about the bill discussed this Thursday come from?

Charles Ohlgusser: Initially, there is in the bill carried by Éric Dupond-Moretti the idea of ​​​​strengthening the confidence of citizens in justice, in particular by protecting the secrecy of their exchanges with their lawyer. On the logic of the principle of secrecy of defense activities (it is accepted that one cannot capture – or in any case transcribe – the discussions, nor enter the correspondence between someone who is preparing his defense and his lawyer), he idea was to extend this secrecy to consulting activities. The representative institutions of lawyers insisted that the activities of advice be explicitly mentioned, because the border is very porous between advice and defence: if someone consults his lawyer to be advised out of litigation, then it is advice, but if there is a dispute two days later on this subject, then the conversation will relate to the defense of the client. In the National Assembly, the parliamentary groups have amended the text to include these advisory activities.

Simon Warynsky: But the Senate managed to pass a kind of villainous amendment, which specifies that there can be no professional secrecy for a whole series of offenses concerning financial or tax matters. In these cases, investigators and magistrates would have the possibility of looking into the exchanges between a lawyer and his client, even if the lawyer is not concerned by the offence, simply to find possible “intentions ” infringements that would have been discussed with the customer. Consequently, there is for us the fear of a rupture of the link of trust lawyer-client because the secrecy is not guaranteed any more.

CO: The idea of ​​the Senate is to exclude from professional secrecy protecting the activity of advice certain offenses related to what is called white-collar delinquency (laundering activities, tax evasion, etc.). However, lawyers are very opposed to it for two reasons. First of all, it must be kept in mind that professional secrecy is not an immunity: if the lawyer facilitates or takes part in an offense, then he can be sanctioned at the disciplinary level, searched, etc. And then, financially, this leads to a new difficulty for lawyers, namely that all their compliance, as we say in English, that is to say all compliance checks (when a client wants to know if the activity of his company complies with French standards in particular) would fall under the scope of this amendment. Clients, especially companies, would no longer have an interest in seeking advice from their lawyer at the risk of incriminating themselves by asking whether they are in compliance at such and such a level.

You talk about breaches that have already been opened in recent years regarding professional secrecy…

SW: There is obviously the example of the Nicolas Sarkozy wiretapping affair, which showed that one could easily capture and use the conversations between a lawyer and his client. This does not detract from the fact that the lawyer remains entirely criminally responsible for the offenses he may commit. The problem is that magistrates and judges have already placed counsel and defense secrecy on different planes, regularly attempting to interfere in the secrecy that protects counsel’s activities. This is why we wanted both activities to be united in a single, inviolable and indivisible secret. But in the Senate, a breach was therefore opened by explaining that it would be used to track down companies and people who do tax evasion, that it would make it possible to find information where we did not have access before. Except that until now, the legislative power and the executive power had always refused this interference of the judiciary in professional secrecy.

What do you expect from the discussions in the joint committee and do you think that professional secrecy will be protected?

CO: We can hope that the deputies who have all voted to protect consultancy activities (in the Assembly therefore, editor’s note) will maintain their position. On the other hand, the discussions relate to a much broader bill, and therefore it is difficult to know what will be the trade-offs between the demands of the Senate, the government, and the Assembly. Afterwards, we know that the case law is very clear about the argument that we are constantly opposed to on the subject: we are told that if secrecy is guaranteed, then it will suffice to put a lawyer in copy of a e-mail evoking an offense so that it is necessarily kept secret. But this is false, because case law specifically states that the lawyer must actively participate in order for there to be an advisory activity.

SW: We hope that the National Assembly will be able to defend us. And moreover, it would seem that Éric Dupond-Moretti is opposed to the Senate amendment. Except that the government is not really followed by the deputies for the moment: on the side of the LREM deputies, we have not seen a clear speech to say that they were against the amendment and that they would defend professional secrecy . This is why we try to show them very clear, precise arguments, to show them that this is not a corporate issue, but that this secrecy protects the client at least as much as the lawyer. In particular, we are going to send a letter signed by our two organizations to explain all this to parliamentarians.

In your opinion, does this amendment therefore threaten all citizens and not just businesses that are questioning their practices?

SW: It can indeed affect everyone. Admittedly, not all areas are currently affected by the text, but a breach is being opened up which, if dug one day, could be used to gain access to information which must at all costs remain confidential. Seeing what is happening, the litigant should say to himself that in the same way, we could one day come and threaten the secrecy that protects him when he comes to talk about divorce with his lawyer, or the head of the company who asks for recommendations regarding future dismissal. It is a fundamental guarantee of the litigant that must be defended at all costs.

CO: So yes, for the moment, it is mainly companies and people who can be implicated in cases of clever delinquency who are targeted, and therefore it can be difficult for the general public to understand. But in reality, the amendment is already threatening mere auditing, compliance as I said earlier. Companies could very quickly want to leave France or refuse to set up there. Imagine that tomorrow you take over a company and you want to know if its activities are compliant. Well with this text we can enter your exchanges. And if in addition this idea of ​​the end of secrecy extends to other matters… Any citizen who seeks the advice of a lawyer could be concerned. Because it’s not just about our clients: it’s about procedural fairness, which is a fundamental guarantee of the rule of law offered to every citizen, as it is in any democracy.

See also on the HuffPost: Dupond-Moretti “more determined than ever” to be Minister of Justice after his indictment

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