Introduction

Matrix organization

Mergers by absorption

Risks related to the expansion of the scope of criminal liability of legal entities

Validity conditions

Proof of delegation

Exemption from individual liability of delegator

Attribution of offense to legal entity

Delegations of authority

Criminal risk management within business organizations

Complicity in crimes against humanity

Breaches of secrecy

Personal data breaches

Theft

Extortion

Blackmail

Fraud

Misappropriation

Receiving/concealment of unlawfully obtained property (recel)

Attacks on automated data processing systems

Money laundering

Misappropriation by public official (concussion)

Corruption and influence peddling

Unlawful acquisition of an interest

Favoritism

Forgery and use of forgeries

Violation of Criminal Code

Offenses under the Monetary and Financial Code

Offenses under the Commercial Code

Environmental Code violations

Offenses arising from other codes

Types of offenses

Offenses under the Criminal Code, the Commercial Code, or the Environmental Code, Criminal procedure

White Collar Crime (en cours)

Pursuant to Article 66-5 of Law No 71-1130 of 31 December 1971, “in all matters, whether in the field of advice or defense, consultations addressed by a lawyer to their client or intended for them, correspondence exchanged between the client and their lawyer, between the lawyer and their colleagues, except for the latter those marked “official”, meeting notes and, more generally, all documents in  …

Lawyers

Pursuant to Article 66-5 of Law No 71-1130 of 31 December 1971, “in all matters, whether in the field of advice or defense, consultations addressed by a lawyer to their client or intended for them, correspondence exchanged between the client and their lawyer, between the lawyer and their colleagues, except for the latter those marked “official”, meeting notes and, more generally, all documents in the file are covered by professional secrecy.”

The obligation of professional secrecy is imposed on lawyers as a duty inherent to the profession, except in cases where the law provides otherwise. Subject to that reservation, it is general and absolute , and the lawyer cannot be released from it by their client . The obligation of professional secrecy established by Article 226-13 of the Criminal Code is therefore imposed on lawyers as a duty of their function. The knowledge by other persons of facts covered by secrecy does not remove the confidential and secret nature of these facts . Professional secrecy covers not only the information received from the client by their lawyer but also that received about them or about third parties, in matters concerning this client. Beyond “secrecy” in the strict sense, the lawyer's duty extends to what the custodian may have personally observed, discovered, or deduced . The Court of Cassation has found guilty of the offense of breach of professional secrecy and complicity in this offense the lawyers of the same firm who, knowingly, allow a third party to the procedures they are handling to consult a commercial file to which copies of documents from a criminal procedure concerning one of their clients had been annexed, or who knowingly facilitate this consultation . Furthermore, while correspondence sent by an inculpé (person charged with an offense), prévenu (person accused of a contravention), or accusé  (persons accused of serious crimes), or to their counsel is covered by secrecy and is exempt from seizure, this is not the case when it involves documents not related to a criminal prosecution and which, moreover, may constitute evidence of an offense as soon as their existence has been revealed by the recipient lawyer to their client, who, not being bound by their confidential nature, has stated them in their complaint .

On the other hand, the provision by a lawyer in conflict with his associate of documents covered by professional secrecy to the head of the bar association, who has the mission to reconcile professional disputes between bar members and to investigate any claims made by third parties, was carried out within the framework of such a dispute to prevent a potential challenge to the professional liability of the law firm, and does not violate professional secrecy . Furthermore, a lawyer may, without breaching professional secrecy, inform the head of the bar association, who then informed the public prosecutor, of the existence of a counterfeit art trafficking operation involving his associate and her family members, as long as he was not the custodian of the information disclosed by his status or profession . Similarly, a lawyer who merely confirms the receipt of a letter, without disclosing its content, does not commit an irregularity under Article 226-13 of the Criminal Code .

Even if it does not contribute to the procedure within the meaning of Article 11 of the Code of Criminal Procedure, it follows from Article 160 of the decree of 27 November 1991 that the lawyer must not commit any disclosure violating professional secrecy and must notably respect the secrecy of the investigation in criminal matters. This obligation consists of refraining from communicating, except for the exercise of defense rights, information extracted from the file or publishing documents, pieces, or letters concerning an ongoing investigation . Thus, the act of a lawyer revealing to a third party, during telephone conversations, the content of a document covered by the secrecy of the investigation, in this case, entire passages of the interrogation report that had just been drawn up by the investigating judge and proposing to send the document by fax , revealing to a third party, even with the client's consent, the content of their conversation before the first appearance before the investigating judge or information from the investigation file  constitutes the offense of breach of professional secrecy.

Finally, if the obligation of professional secrecy established by Article 226-13 of the Criminal Code is imposed on lawyers as a duty of their profession, the mere fact of being a lawyer does not, however, guarantee impunity for a represenatative when he or she is accused personally of wrongdoing, even if this is in relation to alleged offences committed by some of his or her clients. A lawyer under investigation retains the possibility to enforce professional secrecy during substantive interrogations if specific questions on matters covered by professional secrecy are asked .

Cass. 1re civ., 6 April 2004, LawLex202200002233JBJ.

Cass. crim., 18 September 2001, LawLex202200002274JBJ; 27 October 2004, No 04-81.513.

Cass. crim., 27 October 2004, No 04-81.513.

Cass. crim., 9 February 1988, LawLex202200002266JBJ.

Cass. crim., 16 December 2015, LawLex202200002271JBJ.

Cass. crim., 2 March 2010, LawLex202200002295JBJ, D. 2011, 555.

Cass. crim., 21 October 1998, No 98-84.361.

Cass. crim., 28 October 2008, 08-81.432, LawLex202200002821JBJ, on the communication of information contained in an expert report, which was not made necessary by the exercise of the rights of the defense.

White Collar Crime (en cours)

25. Lawyers

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

25. Lawyers

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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au contenu exclusif Livv – juristes d’entreprise