FIGAROVOX/MAINTENANCE – The Senate adopted Thursday, November 18 the bill for confidence in the judicial institution. This text aroused the anger of the black robes who fear a decline in professional secrecy, when they thought they were supported by a former lawyer, Minister of Justice, explains the lawyer and former judge.
Hervé Lehman is a former investigating judge and lawyer at the Paris bar. He notably published The air of slander. A history of defamation (ed. by Cerf, 2020), The Fillon Trial (ed. by Cerf, 2018) and Justice, a culpable slowness (PUF, 2002).
FIGAROVOX. – While the lawyers demonstrated their opposition once again on November 17 in front of the Senate to protest against the measures relating to professional secrecy, the bill for confidence in the judicial institution was definitively adopted. What is it about ?
Hervé LEHMAN. – The issue of solicitor-client privilege has been a point of contention between lawyers and judges for decades: lawyers consider that all verbal and written exchanges with their clients must be confidential and cannot be researched and used by judges. The latter believe that they can go to the lawyers to seek evidence of any offenses committed by them. The legislator tries, without ever succeeding, to find a balance between these two positions.
The bar believed that the Keeper of the Seals, a former lawyer, would be particularly sensitive to their wish to see professional secrecy sanctified, and it is rather annoyed that the new text does not really improve the protection of this secrecy.
Finally, the question was again exacerbated by the affair of the fadettes (detailed telephone bills) of the National Financial Prosecutor’s Office. On the sidelines of the investigation conducted on the so-called Bismuth affair, the PNF carried out a secret investigation, for several years, on the telephone bills of the lawyers around Nicolas Sarkozy to find out if there had been a leak allowing him to learn that he was on telephone tapping. It should be remembered that Éric Dupond-Moretti had lodged a complaint and that he is being investigated for influence peddling, on complaints from the Syndicat de la magistrature and the Union Syndicale des Magistrates, for having taken care of this case after having was appointed minister. This shows how sensitive this issue of lawyers’ professional secrecy is.
The bar believed that the Keeper of the Seals, a former lawyer, would be particularly sensitive to their wish to see professional secrecy sanctified, and it is rather annoyed that the new text does not really improve the protection of this secrecy. The text adopted on Thursday 18 November excludes the professional secrecy of the lawyer in his role of advice, as opposed to that of defense in a procedure, for the offenses of tax evasion, corruption and money laundering of these offenses if the consultations, correspondence or documents held or transmitted by the lawyer establish their use to commit these offences.
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Do you understand the disagreement of the black dresses or is it “corporatism” as declared by Stéphane Mazars, LREM rapporteur of the bill in the Assembly?
The paradox is that Éric Dupond-Moretti and Stéphane Mazars are or were both lawyers. No doubt lawyers are campaigning for the broadest possible protection of professional secrecy. But it must be said that this question is important for democracy, like the secrecy of journalists’ sources. Undermining the secrecy of sources is undermining the freedom of the press, which is a pillar of democracy. Similarly, the way in which the rights of defense are respected in a country is a strong marker of democracy. Let us remember the lawyer of Louis XVI, who was arrested just after his pleading and narrowly escaped the punishment suffered by his illustrious client. We must therefore be vigilant about the rights of the defence, and what remains of them when the police and judges search law firms, or listen to conversations between the lawyer and his client as has been the case for Nicolas Sarkozy and his lawyer for eight months?
The accusation of corporatism seems misplaced when talking about an important issue for democracy.
Therefore, the accusation of corporatism seems misplaced when talking about an important issue for democracy. This does not mean that there should not be a debate on the limits of professional secrecy in the cases, fortunately very rare, where a lawyer is complicit in a criminal act. This is the whole difficulty of the exercise.
Significant guarantees during searches are however promised to them. Are you happy about it?
I’m afraid that’s a lot of ado about not much. Admittedly, the text provides that the connection data of lawyers, the so-called fadettes, can no longer be searched except with the authorization of the judge of freedoms. This means that the prosecution will no longer be able to do what it did in the case of the PNF fadettes. For the rest, we will remain in the appreciation by the judges of what can lead to believe that a lawyer could participate in an offense.
The law of December 31, 1990 affirmed, therefore, more than thirty years ago, that the written consultations by a lawyer to his client and the correspondence exchanged between the client and his lawyer were covered by professional secrecy. The law of April 7, 1997 extended this secrecy to interview notes and all documents in the lawyer’s file and specified above all that it applied to all matters, whether in the field of advice or in that of defense. This last law, prompted by the Conseil National des Barreaux because the previous one had brought little result, was celebrated by the profession as finally sanctifying the professional secrecy of the lawyer. Similarly, the laws of 2000 and 2005 amended the code of criminal procedure to make the conditions for searches in law firms more stringent. Despite these laws, the number of these searches has continued to increase, and the point of balance has still not been found.