Hervé Lehman is a former investigating judge and lawyer at the Paris bar. In particular, he published
L'air de la calomnie.
Une histoire de la defamation
(ed. Du Cerf, 2020),
Le Procès Fillon
(ed. Du Cerf, 2018) and
Justice, a culpable slowness
(PUF, 2002).
FIGAROVOX. - While the lawyers once again expressed their opposition 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 lawyers' professional secrecy has been a subject 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 sought and used by judges.
The latter believe that they can go to the lawyers to look for evidence of possible offenses committed by them.
The legislator tries, without ever succeeding, to find a balance between these two positions.
The bar thought 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.
Herve Lehman
Lastly, 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 carried out on the so-called Bismuth affair, the PNF conducted a secret investigation, for several years, on the telephone bills of lawyers in the entourage of Nicolas Sarkozy to find out whether there had been a leak allowing him to learn that he was on telephone tapping. Let us recall that Eric Dupond-Moretti had lodged a complaint and that he is indicted for influence peddling, on complaints from the Syndicat de la magistrature and the Union Syndicale des Magistrates, for dealing with this case after having been appointed minister. This shows how sensitive this issue of legal professional secrecy is.
The bar thought 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 Thursday, November 18 excludes the professional secrecy of the lawyer in his role of adviser, as opposed to that of defense in a procedure, for the offenses of tax fraud, corruption and money laundering of these crimes if the consultations, correspondence or documents held or transmitted by the lawyer establish their use to commit these offenses.
Read alsoLawyers demand guarantees on professional secrecy
Do you understand the disagreement of the black dresses or is it a question of “corporatism” as declared by Stéphane Mazars, LREM rapporteur of the bill in the Assembly?
The paradox is that Eric Dupond-Moretti and Stéphane Mazars are or were both lawyers. No doubt lawyers are campaigning for the widest possible protection of professional secrecy. But it must be said that this question is important for democracy, like the secrecy of journalists' sources. To undermine the secrecy of sources is to undermine the freedom of the press, which is a pillar of democracy. Likewise, the way in which the rights of the defense are respected in a country is a strong marker of democracy. Let us remember the lawyer for Louis XVI, who was arrested just after his plea and narrowly escaped the punishment suffered by his illustrious client. We must therefore be vigilant about the rights of the defense,and what remains of them when the police and judges search law firms, or listen to conversations between the lawyer and his client as was the case for Nicolas Sarkozy and his lawyer for eight months ?
The accusation of corporatism seems out of place when it comes to an issue of importance to democracy.
Herve Lehman
Therefore, the accusation of corporatism seems out of place when it comes to an issue of importance to democracy.
This does not mean that there should not be a debate on the limits of professional secrecy in the fortunately very rare cases where a lawyer is complicit in a criminal act.
This is the difficulty of the exercise.
On the other hand, important guarantees during searches are promised to them. Are you looking forward to it?
I'm afraid this will be a lot of ado about not much. Admittedly, the text provides that the connection data of lawyers, 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 may lead to believe that a lawyer may have participated 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 to all documents in the lawyer's file and above all specified that it applied in all matters, whether in the field of advice or that of defense. This last law, prompted by the National Bar Council because the previous one had brought little result, was celebrated by the profession as having finally to sanctify the professional secrecy of the lawyer. Likewise,the laws of 2000 and 2005 amended the code of criminal procedure to tighten the conditions for searches of law firms. Despite these laws, the number of such searches has continued to increase, and the point of equilibrium has still not been found.