“The professional secrecy of lawyers cannot be the adjustment variable to fight effectively against financial delinquency”

Tribune. The confidences that citizens make to their lawyers constitute the basis of the rights of the defense. Without protecting the secrecy of these, no citizen, elected official, company or natural person is guaranteed that he will be free to be able to consult a lawyer to protect his rights. By imposing on lawyers the obligation to respect the secrecy of the confidences entrusted to them, they can reassure worried litigants who seek advice in any area (company creation, inheritance or matrimonial strategy, protection of property intellectual property, conclusion of contracts, hiring or dismissal of an employee, negotiation of a contractual termination, etc.) or the simple defense of their interests in court.

The professional secrecy of the lawyer vis-à-vis his client or future client is therefore an imperative guarantee of the rule of law, because the lawyer does not protect “his” secret, but that of his clients. The lawyer cannot be released from this secrecy by anyone, he must respect it all his life. Any infringement is sanctioned criminally and ethically.

Extremely rare, the law sometimes authorizes the lifting of secrecy, while the most commonly permitted exceptions concern lawyers who participate in an offense or incite one of their clients to commit one, in which case professional secrecy is not not opposable to the investigation services and the courts. Thus, the exchanges or confidences addressed to the lawyer are protected from outside intrusions, which allows him to guide his client usefully towards the most suitable solution, in accordance with the legal provisions and his particular situation.

Artificial distinction

However, the judges have, little by little, tried to limit the scope of the professional secrecy of the lawyer by making an artificial distinction between the activities of counsel and defense, and this in complete contradiction with the law of December 31, 1971, which provides that this secrecy applies “In all matters, whether in the field of advice or that of defense”. By this artifice, the judges wanted to open a breach in order to allow the investigators to seize confidential documents, transmitted to the lawyer or exchanged by the latter with his client, relating to an advisory activity (therefore outside of any litigation) or to capture the exchanges between the lawyer and his client.

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However, the border between advisory and legal defense activities is, in principle, porous. Breaching professional secrecy in matters of advice is likely to considerably limit the means of defense before the courts. It was therefore imperative that through a law wishing to restore citizens’ confidence in their justice, this secrecy be reaffirmed as a general principle inherent in the rule of law, applicable in all matters and offering citizens the possibility of requesting legal advice from a lawyer without fear of self-incrimination, so that the latter can guide him in accordance with the law. This is what the National Assembly did unanimously by adopting an amendment to article 3 of the bill for confidence in the judicial institution.

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