Professional secrecy of lawyers: the right of defense in danger

Nicolas Beytout 07:58 am, October 25, 2021

While he was in trouble with the magistrates since his arrival at the Ministry of Justice, Eric Dupond-Moretti will now have to face the anger of the lawyers.

Because of a strange affair, full of twists and turns, which is almost at its conclusion.

A seemingly technical affair, but in reality very political.

It is Eric Dupond-Moretti who, unwittingly, started everything with his law pompously entitled "Confidence in the judicial institution".

In the mass of disparate articles of this law, the Keeper of the Seals slipped a provision on the professional secrecy of lawyers.

As a former colleague, he wanted to reinforce this secret.

And there was no law on solicitor-client privilege until then?

Yes, for 50 years. But this law, which dates from 1971, has been methodically trimmed by judges who have respected the secrecy that attaches to litigation activities (everything that revolves around trials), but less and less that which relates to advisory activities. (an increasingly important part of law firms). It is this disturbing drift for the rights of the defense that Eric Dupond-Moretti wanted to re-sanctuary. And his proposal was first voted unanimously by the National Assembly. Applause from lawyers, bars and everything in the courtrooms of the stars of the pleading. For a bit, they would have chanted a thunderous "He is one of us".

Exactly.

The Senate demolished it all.

If he did confirm that professional secrecy protected the lawyer, he made two huge breaches in this wall.

Secrecy will no longer exist for advice on tax matters and economic delinquency, and it will also jump as soon as the lawyer is the subject of maneuvers which may be linked to an offense, a very vague wording which seems potentially very dangerous.

Because in these cases, the judges will be able to seize all the exchanges between a lawyer and his client.

The confidentiality of exchanges, which is a centerpiece of justice, an essential element of the rights of the defense, this confidentiality is seriously threatened.

All the same, the fight against tax fraud and against economic delinquency, these are national causes.

Of course, but at what cost? What worries lawyers a lot is that this law will allow judges to tumble into their offices, to enter their files, to enter into the intimacy of the relationship of trust between a client and his counsel. The secrecy of conversations between a lawyer and his client had already been abused in the Bismuth-Sarkozy affair (the exchanges between the former head of state and his lawyer Me Thierry Herzog had been listened to and used against them). But this time, it will be possible to do it on an industrial scale. Tax evasion and money laundering are extremely serious crimes, sometimes with international ramifications that are very complex to disentangle. The trend today is zero tolerance for this range of offenses. OK,but their perpetrators are no different from other offenders: as long as they are not definitively convicted, they are presumed innocent, and their rights must be preserved. In any case, the lawyers will surely make their voices heard.

And what can happen now?

Demonstrations, strikes, protests from this very influential profession (after the aborted project to reform their pension system, this will be the second time in the five-year term).

After that, everything will depend on the Head of State.

In this showdown between Finance and the Ministry of Justice, it is clearly Bercy who won.

If this text goes to the end, it will be another notch in the balance sheet of the five-year term, which already had a heavy liability in terms of public freedoms.

It is now up to Emmanuel Macron to choose.