ECLA salutes French plans to extend legal privilege to company lawyers

“If implemented, this is a real revolution in France. We salute the plans to extend legal professional privilege to in-house counsel, and we hope they will soon be implemented,” said Jonathan Marsh, the president of the European Company Lawyers Association (ECLA), in reaction to the publication of proposals made by Deputy Raphaël Gauvain of the governing LREM party.

The Gauvain report was submitted to Prime Minister Edouard Philippe on Wednesday. In it, he proposes to improve protection of French companies by giving company lawyers (juristes d’entreprise) a status similar to that of external legal counsel, in particular with respect to the confidentiality of legal advice they provide. Gauvain notes that currently, French companies do not enjoy the same level of legal protection than their international competitors and are often at a competitive disadvantage when faced with legal proceedings abroad.

The proposals will now have to be evaluated by the government and then presented to the National Assembly and the Senate for approval. They also include a call for the modernisation of a 1968 law on the communication of economic, commercial, business, financial or technical information to foreign persons or entities, and for the adoption of a new law aimed at protecting French companies against the transfer of company data to foreign entities by internet service providers.

This in effect would mean extending GDPR rules already in place for natural persons to legal persons and allow to impose sanctions on ISPs who transfer data of French companies to third countries’ authorities without going through the proper legal process.

Jonathan Marsh pointed out the differences that still exist between different jurisdictions in Europe when it comes to legal privilege for company lawyers. “At a time when European companies are subject to tough competition, it is not a satisfactory situation to have a patchwork of different rules in place from jurisdiction to jurisdiction. We will continue to advocate for the recognition of legal privilege for company lawyers across the EU,” the ECLA president said.

The French Association of Company Lawyers (AFJE) – ECLA’s affiliate in France –welcomed the proposal made by Gauvain, notably the recognition of legal privilege for in-house counsel. “Raphaël Gauvain’s report is a big step forward towards the protection of confidentiality of legal advice given by in-house lawyers, and the creation of the status of Company Lawyer will facilitate the implementation of this plan. It will not only strengthen French economic competitiveness but also make French and European law more attractive,” said AFJE President Marc Mossé. He called on Prime Minister Philippe to implement the proposals contained in the Gauvain Report. “You have our full support,” Mossé declared.


The Gauvain Report can be accessed in full here (French)