Professional secrecy of lawyers: all losers

It’s a formidable spin, coupled with a masterful game of dupes, of which the judicial world has the secret. Thus ends the soap opera of recent weeks on the Bill Confidence in the judicial institution. In the end, everyone left feathers there. Review details of these losses online.

Initially, everything seems calm even if, to everyone’s surprise, the deputies, in May 2021, extended the secrecy of lawyers to their advisory activities while the initial text of the Minister of Justice only spoke of defense. An absolute secrecy whose constitutionality and conformity with European jurisprudence are subject to caution, which is then only mentioned mezzo voce. Spend the summer before the actors in the play wake up. At the end of August, Bercy, the tax authorities, the financial magistrates openly let it be known that this version of the project is “unacceptable”, that it puts the interests of lawyers and their clients before the fight against corruption. They have the ear of the senators who, in mid-September, introduce exceptions to the protection of the secrecy which “falls” in the event of suspicion of tax evasion, corruption, money laundering and the financing of terrorism. In these cases, the cabinets could be searched and the parts seized. The bar, especially in business, sees the danger coming.

The tension rises a notch when, in the Joint Joint Committee (CMP), on October 21, the parliamentarians add, in a poorly drafted paragraph, that secrecy is not protected either if the lawyer has been the subject of “maneuvers” by his client who would make him his accomplice. The following weeks border on hysteria. Suddenly, the lawyers reject en bloc a project initially intended to satisfy several major demands of the profession. Between bars, Chancellery and parliamentarians, everyone now looks askance. The knives are out, the cries of orchard too. To be sheathed in extremis this week before the vote of a text, which, once the passage on the instrumentalized lawyer removed, looks like its senatorial version. With this backdrop laid, it is time to take stock.

Avocados “spoiled children”. Officially, this article 3 of the text does not suit the lawyers who voted for its deletion. They preferred the ante situation, where, however, secrecy was not engraved in the law and jurisprudence was not very protective of these rights of defense. This is not the least of the paradoxes. “At least we knew what to expect. There, we divide the secret in two, on the one hand, the council, on the other, the defense. And there are exceptions, the list of which is likely to grow one day ”, regret the detractors of the text. “Everything is suspect. This is the danger ”, summarizes Jean Castelain, former president of Paris. The most pessimistic see it as a “threat” to the place of Paris whose “legal insecurity” would scare away the clients of large business firms and some are already thinking about moving their archives to Jersey or Luxembourg to put them in place. shelter from searches …

More measured opinions explain that, even if they will never say it loud and clear, their colleagues are not so dissatisfied with their fate but that the reflex today is to “cry before having pain”. At best, it is said, some had not even read the text, or understood its technical details, and followed the pack; at worst, others behaved like “spoiled children screaming because there is has a bicycle, not a racing car, at the foot of the Christmas tree ”. Forgetting a little quickly that what had moved them so much – the Bismuth affair and its nonsense – will no longer be possible tomorrow. “Even under torture, I will never say it publicly, but we are better off than before”, loose an expert who followed the whole procedure.

Olivier Cousi, president of Paris, and Jérôme Gavaudan, president of the CNB, were overwhelmed by their base

For the representatives of the profession, the Order of Paris and the National Council of Bars (CNB), this pataquès will leave traces. To summarize, Olivier Cousi, president of Paris, and Jérôme Gavaudan, president of the CNB, were overwhelmed by their base. Forced to reject a text that they had first validated. Their authority comes out damaged. “The mobilizations in front of the Assembly and the Senate were ridiculous”, deplore several members of the profession. And the demonstrators forced to the big gap between the banners of the Syndicate of lawyers of France (left) and the banners of the Lawyers-Business Councils or of the Hauts-de-Seine bar.

Minister “betrayed”. Eric Dupond-Moretti succeeded in extremis to get out of the trap but obtained no political gain after this sequence. Originally, the Keeper of the Seals designed a tailor-made text for his former colleagues. “It is a fundamental subject for him, the result of thirty years of experience. He felt betrayed by his family, ”notes a relative. In reality, the case crystallizes all the grievances accumulated by the lawyers against the boss of the Place Vendôme, to which is added the annoyance caused by the States General of justice whose profession, tired of these high masses, does not wait. nothing. However, the Chancellery did not produce clear text and instructions throughout the parliamentary procedure either. She is even suspected of having lent a hand to the “rogue amendment” on the manipulated lawyer who set fire to the powders after the CMP.

“The Guard is learning the trade. Lawyers are lobbying, he went to the other side, ”notes François-Noël Buffet, chairman of the Senate Law Commission. In the medium term, the lawyers will undoubtedly recognize the progress of the text but, in the immediate future, the minister hardly benefits from it and can just congratulate himself on having avoided at the end an uncontrolled slippage. In this presidential pre-campaign, his interest is above all to keep in touch with the provincial chairmen, true opinion leaders and who are themselves less vehement than their Parisian colleagues.

Deputies “chafouins”. In the National Assembly, the file leaves a bitter taste. The majority had to accept to see their project tarnished and the lawyers, which they had nevertheless served well, shoot red balls on the government. “The deputies are chafouins, the Senate, him, knew how to be heard”, notes a parliamentary observer. The High Assembly did not add fuel to the fire and a political agreement was found to pass the government amendment which allowed the text to pass in extremis.

The organic part of the text will now be sent to the Constitutional Council, which could also be requested to deliver its analysis on professional secrecy.

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