ACTUALITÉS

Legal professional privilege/Client confidentiality for Lawyers in different jurisdictions

Case study: A client of my jurisdiction plans to acquire a company based in Ottawa, Canada, which has a subsidiary in Denmark. For this purpose, I am asked to draw up a draft Letter of Intent.

After a first contact over the phone with Mr. Smith, the target company’s lawyer of the Bar of Ottawa, I ask him to send me several non-public preliminary documents regarding his client and upon receipt, I send him a draft L.O.I.

Letters, emails, telephone calls and sometimes text messages are exchanged between our firms.

In the loop of the emails, each of us copies his associate (lawyer) and secretary with whom he works with on the case.

Several exchanges also involve the General Counsel, the CFO, and/or Auditors of the involved companies, along with the HR Director and the Labour lawyer (Copenhagen Bar) of the Danish subsidiary.

My client asks me to forward him one of Mr. Smith’s emails containing the fourth mark-up version of the draft L.O.I revised by Mr. Smith and explains that he wishes to have it translated from English into his mother tongue by a translator for the sake of a better understanding.

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The main questions involved in terms of confidentiality/legal privilege/professional secrecy in this case study are the following. They are identical for each workshop participant but provides answers specific to his jurisdiction. Here below are the answers specific to France:

1) Is my client’s request (by which he informs me of his plan) covered by legal privilege?

Yes, it is.

Under French law, in principle, all correspondence between a lawyer and his/her client are covered by professional secrecy, regardless of the matter (advisory or contentious) and of the medium (physical, electronic or oral).

See definitions, scope and sanctions = “confidentiality” and “professional secrecy”

Ref.: article 66-5 of Law of December 31st 1971 and article 2 of the “RIN” (National regulation of the profession of lawyer).

2) Are all correspondences exchanged between the client and I confidential?

Yes, in principle.

Once again, in principle under French law, all correspondences between a lawyer and its client are covered by professional secrecy.

However, French case law considers that professional secrecy only covers “necessary confidences” made by the client to his/her lawyer and does not apply to events that have nothing secret.

Example: a lawyer who mentions a fact that is known to third parties and has nothing to do with contentious or advisory activities performed on behalf the client does not breach professional secrecy.

Ref.: article 66-5 of Law of December 31st 1971 and article 2 of the “RIN” (National regulation of the profession of lawyer) – see for example AD n° 18.5182.

3) Is the first correspondence exchanged between Mr. Smith and I confidential?

Yes, from a French standpoint.

Under French law, a correspondence between lawyers is confidential by nature and covered by professional secrecy, regardless of the medium and the matter, without having to analyse the content.

In France, from a French standpoint, a correspondence between lawyers is thus covered by professional secrecy i.e. cannot be disclosed.

However, correspondences between French lawyers and foreign lawyers are, by nature, official unless otherwise agreed. In his dealings with a lawyer who is a member of a bar outside the European Union (here Canada), the French lawyer must, before exchanging confidential information, ensure that there are rules in the country where the foreign lawyer exercises to guarantee confidentiality of the correspondence. If not, enter a confidentiality agreement or ask the client if he/she accepts the risk of an exchange of non-confidential information.

Coming back to the purely French rules, all correspondences between lawyers are confidential by nature and covered by professional secrecy. Besides, any attachment to a confidential correspondence is, by nature, also confidential and covered by professional secrecy.

There are exceptions to this principle:

 May be marked “official” and are not covered by professional secrecy, within the meaning of section 66.5 of the Act of 31 December 1971:

o Correspondence equivalent to a procedural document,
o Correspondence that does not refer to any prior written, oral or confidential material,

Whilst drafting an official correspondence, French lawyers must limit themselves to a brief and objective statement of the facts or the request and must refrain from mentioning the position of the adverse party.

 A correspondence between lawyers (not marked official), by nature confidential and covered by professional secrecy, can “lose” its confidential nature if it breaches the essential principles of the profession (dignity, moral conscience, independence, integrity, humanity, honor, loyalty, selflessness, corporate spirit of the profession, sensitivity, moderation, courtesy, competence, dedication, diligence and caution). For example, a correspondence containing an insult to the adverse lawyer.

Ref.: article 66-5 of Law of December 31st 1971 and articles 2 & 3 of the “RIN” (National regulation of the profession of lawyer).

4) Are correspondences between the Labour lawyer of the Copenhagen Bar and my firm confidential?

Not in principle, but they can be.

A French lawyer who intends to send correspondence to a lawyer in another Member State which he/she wishes to be confidential or without prejudice, must clearly express this intention before sending the first correspondence.

If the future recipient of the communications is unable to ensure that the communications will be confidential or « without prejudice », he/she shall inform the sender without delay.

Ref.: article 21.5.3.2 of the the “RIN” (National regulation of the profession of lawyer) and article 5.3. of the Code of Conduct for European lawyers.

5) Are my correspondences with the General Counsel based in Canada allowed? If so, are they confidential?

No.

The essential principles of sensitivity, moderation and courtesy must lead the French lawyer to restrain from communicating directly with the adverse party.

Communication with the adverse party should always take place through the adverse lawyer.

If, despite this rule, the French lawyer corresponds with the Canadian General Counsel, it would not be a confidential correspondence under French law (outside the scope of “client-lawyer” relationship).

Ref.: article 66-5 of Law of December 31st 1971 and article 2 of the “RIN” (National regulation of the profession of lawyer) – see for example AD n° 18.5182.

6) Are my correspondences with my client’s General Counsel based in my jurisdiction confidential?

They can be.

Correspondences exchanged by a lawyer and his/her client’s in-house counsel will be confidential and covered by professional secrecy as long as the latter can be considered as a representative of the client. In such a case, the General Counsel is “assimilated” to the client company and the correspondences fall within the scope of the “client-lawyer” confidential exchanges.

7) Are correspondences between Mr. Smith and my client’s General Counsel allowed? If so, are they confidential?

The answer to the question of whether such correspondence is allowed falls under Mr. Smith’s jurisdiction and applicable law. Either way, French lawyers would strongly advise their client not to correspond with the adverse lawyer.

In practice, a correspondence exchanged with an in-house legal counsel and the adverse lawyer could be disclosed in a context of litigation since it is not a “lawyer-client” relationship.

8) Are correspondences between the Canadian CFO and I allowed? If so, are they confidential?

No.

The essential principles of gentleness, moderation and courtesy must lead the French lawyer to restrain from communicating directly with the adverse party.

Communication with the adverse party should always take place through the adverse lawyer.

If, despite this rule, the French lawyer corresponds with the Canadian CFO, it would not be a confidential correspondence under French law (outside the scope of “client-lawyer” relationship).

However, the clients and the lawyers could decide to enter a confidentiality agreement stipulating that all correspondence exchanged between all lawyers and all clients’ employees and representatives should by covered by confidentiality. It might be important to stipulate expressly that clients’ executives may not legally bound their employers.

9) Are correspondences between the Danish HR Director and I allowed? If so, are they confidential?

No.

The essential principles of gentleness, moderation and courtesy must lead the French lawyer to restrain from communicating directly with the adverse party.

Communication with the adverse party should always take place through the adverse lawyer.

If, despite this rule, the French lawyer corresponds with the Danish HR, it would not be a confidential correspondence under French law (outside the scope of “client-lawyer” relationship).

10) Are emails involving associate lawyers and/or secretaries confidential?

Emails involving associate lawyers are of course confidential.

As for the secretaries or legal assistants in France, they are bound (by the applicable collective agreement) to a commitment of strict confidentiality regarding the business of the law firm. However, they are not bound by professional secrecy towards their employer or employer’s clients.

But breaching the confidentiality of the work entrusted to them is a gross misconduct.

Ref.: National collective agreement of lawyers (employees) 20.02.1979

11) Are emails involving both lawyers and the target company’s auditor confidential?

In principle, no.

It could be since it is a correspondence between lawyers. But the fact that a third party (non-lawyer) takes part in the correspondence “removes” the confidential nature of the correspondence.

However, it must be noted that auditors are bound with strict professional secrecy under French law, just like lawyers.

12) Am I allowed to forward to my client Mr. Smith’s correspondence along with the fourth version of the draft L.O.I?

Yes but…

Since the correspondence between Mr. Smith and I are not covered by professional secrecy (unless otherwise agreed) I can forward the email to my client.

However, from a purely French standpoint, correspondences between lawyers are confidential including towards clients.

The fact that the client requests the email to forward it to a translator raises the question of confidentiality in such a case.

13) Is a confidentiality agreement needed? If so, who should undertake this agreement?

Clients and lawyers could decide to enter a confidentiality agreement stipulating that all correspondences exchanged between all lawyers and all clients’ employees and representatives should be covered by confidentiality.

It should be expressly stipulated that clients’ executives may not legally bound their employers.

 

Philippe Bédard & Mélisande Felton