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Tuesday, 27 August 2013

"Don't pass it on ...": have the French got it right or wrong?

"We'd better open them first,
just to make sure ..."
Reading one of his favourite IP weblogs, Mark Anderson's IP Draughts, this Kat was both intrigued and startled by one of the items on Mark's recent post "Ten things I have learned recently ...", here. Item no.2, handsomely and somewhat cryptically illustrated with a picture of half an avocado pear, replete with stone, reads thus:
"The approach of French lawyers in relation to confidentiality of communications between lawyers is very different to that of English lawyers. It seems that, in France, a lawyer may not copy to his client a letter that he has received from the other party’s lawyer. Result: effective communication with one’s clients becomes unnecessarily difficult".
The Kat is fascinated by this.  Knowing that this blog is read by a large number of thoughtful and highly capable French lawyers, he hopes that one or more of them will be tempted to respond to the following questions:
  • Does this rule really exist?
  • If so, is it a general rule of law that applies in respect of all professions (and therefore applicable also to, eg, accountants, architects, surveyors, loss adjusters), a rule imposed for the purpose of regulating the conduct of the legal profession or merely a matter of professional etiquette which has assumed the status of a binding rule?
  • What if any are the sanctions that may be imposed upon a lawyer who copies a letter received by the other client's lawyer to his client? Are they civil or criminal, based in copyright or breach of confidence, data protection or privacy, or what?
  • May any use be made, or cognisance taken, of such a letter if it has indeed been so copied?
  • Does it apply in respect of all letters from the other party's lawyer or only those from a French-qualified practitioner?
  • May this restriction be waived by the sender of the letter or by his client?
  • Is any justification offered for this rule and is there any consideration as to whether it should be modified or scrapped?
Merpel's curious to know whether other jurisdictions impose a similar restriction upon the forwarding of professional correspondence. Do tell!

French letters here and here

10 comments:

Anonymous said...

I have had the same experience. We had some inter-lawyer correspondence from one jurisdiction (which was "open" and thus non-confidential) about a patent issue. We wanted to put this before the French court in parallel French litigation on the same patent issue. The advice we got from the French lawyer was "you can't do this". Would be interested in learning more about the reasons for this.




(Man, do I really love IPKat).

Anonymous said...

Bonjour,

I have got two qualities: I am French and I am not a Lawyer.

As far as I know the French lawyer has the duty to inform his client.

Perhaps you should read: "the French lawyer may not disclose the letter to his client PROVIDED he informs his client about the letter and the content of the letter" ?

(Disclaimer: this is not a legal advice)

Mark said...

For a brief summary of the differences between jurisdictions, see the note on Article 5.3 at page 30 of this CCBE code of conduct for European lawyers:

http://www.ccbe.eu/fileadmin/user_upload/NTCdocument/EN_Code_of_conductp1_1306748215.pdf

Anonymous said...

I can't comment on confidentiality provisions between lawyers, but I've had some terrifically difficult decisions to make when a patent case is transferred between clients. Do you tell them what the inventor said about the embodiment described in claim 3?

Anonymous said...

Thank you Mark for your comment of 14:02:00

Anonymous said...

Links to various European lawyer Codes of Conduct and the current state of European integration can be found within this document :

http://www.ccbe.eu/fileadmin/user_upload/NTCdocument/Table_adoption_of_th1_1358409892.pdf

Anonymous said...

In the French barrister Interior National Regulations, confidentiality of exchanges between EU and French lawyers of different states, or different bar organisations, are give here :


21.5.3 Correspondance entre avocats

21.5.3.1 L’avocat qui entend adresser à un confrère d’un autre Etat membre des communications dont il souhaite qu’elles aient un caractère confidentiel ou « without prejudice » doit clairement exprimer cette volonté avant l’envoi de la première de ces communications.

21.5.3.2 Si le futur destinataire des communications n’est pas en mesure de leur donner un caractère confidentiel ou « without prejudice », il doit en informer l’expéditeur sans délai.

http://cnb.avocat.fr/Reglement-Interieur-National-de-la-profession-d-avocat-RIN_a281.html#CDAE21A5

Anonymous said...

And just to complete the previous references :


Article 3 : confidential correspondence between lawyers (L. art. 66-5)

3.1 Principles

All exchanges between lawyers, be they verbal or written, and independently of the medium (paper, fax, digital …), are, by their very nature, confidential.

Correspondence between lawyers, independently of the medium, can never be produced before the courts, nor be subject to withdrawal of confidential status.

3.2 Exceptions

The following can bear the words "Official" and are not covered by professional secrecy, under the terms of article 66.5 of the law of 31 décembre 1971 :

any correspondence equivalent to a procedural act ;
any correspondence that makes no reference to any other prior confidential written communication, matter or elements.

Such correspondence must adhere to the essential principles of the profession as defined in article 1 of the present regulation.

3.3 Interaction with lawyers from the EU

In any interaction with lawyers registered with a bar association of a member state of the EU, a lawyer is obliged to adhere to the arrangements of article 5-3 of the professional ethics code or European lawyers, hereinafter identified under article 21.

3.4 Interaction with foreign lawyers

In any interaction with a lawyer registered with a bar association outside of the EU, a lawyer must, before exchanging confidential information, verify that the country in question where the foreign colleague practises, has rules which ensure confidentiality of correspondence, and where such is not afforded, conclude a confidentiality agreement with the foreign colleague or ask his/her client whether it will accept the risk of non-confidential exchanges.

Mike Robinson said...

August is perhaps not the best month for expecting speedy answers from France on questions like this. Had to divide this into two to get under 4069 characters (good we’re not limited to 166 or so).
Although not fully qualified to answer, I thought I'd have a crack at the last question which perhaps is the most interesting. The question was: is any justification offered for this rule and is there any consideration as to whether it should be modified or scrapped. Briefly put, there is plenty of justification, and French Avocats (I say Avocats because the rule is primarily intended for them - though see later for something that may surprise - and doesn't cover in-house counsel). The rule finds its origins in tradition and history, universities in France responsible for training doctors and lawyers originally coming under control of the Church, a system left largely untouched by the Reformation. This is why lawyers are still bound by similar rules of professional secrecy as are priests and medical practitioners, and have been grouped together in the same article of the Criminal code since 1806 (the rule existed earlier in another form but was abolished by the revolution) which sets out the penalties for breaking the rule. The criterion is professional secrecy. In its 1806 version, the criminal code lists the following professions: doctors, surgeons, other health officials, pharmacists, midwives, and all other persons who, because of their status or profession or temporary or permanent function are holders of secrets that have been revealed to them. In its modern form, this article, now article 226-13 of the Criminal code sets a penalty of €15,000 together with a one-year prison sentence as the penalty for revealing information of a secret nature by a person who, because of his status or profession or by virtue of a function or temporary task is in possession of such information. The justification for this rule was set out most elegantly by a certain Emile Garcin writing around the turn of the last century and this quote is still included in the annotated version of the Code " for society to work properly, the sick need to find a doctor, those who have a cause to plead someone to defend them, Catholics a confessor, but neither the doctor, nor the barrister nor the priest could accomplish their task is there were not an inviolable guarantee of secrecy of confidences they are in receipt of... since no one would dare to confide in them if there could be some fear of confidential secrets being disclosed" (the original French is more poetic than this). The rule, consequently, ensures society run smoothly, favors the client - the secrets he or she confides remaining secret - boosts confidence in the profession and should in theory favor appearance of the truth. As the above text implies, who would dare confide something to an Avocat if he didn't have the assurance that what was said or written would remain secret. Professional secrecy is the object of specific legislation and is the subject of article 2 of the Code of Conduct Avocats subscribe to. Penalties for infringement of the latter can range from warnings to temporary suspension through to striking off. Unlike in other European countries, the client cannot ask his attorney to waive the secrecy rule. The Avocat can, as said elsewhere, by marking correspondence "Officielle". A loophole allowing the Supreme Court (Cour de Cassation) to say that the activities of defending clients were different from other activities the Avocat performs was closed by new legislation in 1997. The rule can be overridden when there is a “higher cause”. Suspicions of involvement in money laundering trumps all. Continued in comment below

Mike Robinson said...

This is the continuation of my previous comment.
The rule covers correspondence between the client and his attorney, and between attorneys. Information the client entrusts to his attorney enters a house of secrets from which it must not leave. In a transmission network, this would be a secure part of the link. Consider the following situation: a EU-attorney writes to a French Avocat; the correspondence is not covered by professional secrecy rules (unless marked "confidential"). The French Avocat passes this letter on to another French Avocat; the letter is now covered by professional secrecy rules. Remember too that once a client had received correspondence from his Avocat, he can do what every wants with it, and it can't be argued, as was once done, that it is still covered by professional secrecy. One argument in defense of the rule is that clients are completely free to do whatever they want with correspondence that they have received, and are quite capable of doing unusual things, posting it up on the net for instance. The rule prevents persons who have written the correspondence finding themselves in an awkward situation. In a question of deciding whether oral communication by the Avocat of the content of correspondence covered by secrecy rules constituted infringement thereof, the client had jumped the gun and announced a deal had been reached to the press. In this case it was considered that secrecy rules had not been infringed by this manner of communication. To come back to the original question, if the client had managed to get his hands on a copy of the letter from the other party's attorney and then tried to make some use of it then he could have found himself in a situation where he had, in theory, broken secrecy rules. In practical terms though, if a French Avocat wants to pass on the information contained in a letter he had received from the other party's lawyer to his client, it suffices to extract the content. This is nevertheless a delicate matter, involving the attorney's conscience.
To finish on the question as to whether it should be modified or scrapped, few people in France (unlike foreign attorneys) can see any reason for this. It has its advantages and is fiercely defended by Avocats themselves. French Avocats participated in the crafting of Europe-wide rules governing the profession, but kept their own rule at the same time. Far from dying, it has gained force - now for the surprise: it seems that French patent agents/attorneys like the rule so much that they have adopted it themselves and it is now, since 2004, incorporated into the Intellectual Property Code as article L. 422-11. No sign it's on its last knees then.

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