Attorney-client communications are also privileged when a copy is held by the client. However, the obligation to preserve the confidentiality of the communications is only imposed on the lawyer, who is subject to the duty of professional secrecy. Consequently, as stated by the French Cour de Cassation, a client can take the initiative to produce correspondence with the lawyer before a court. In such instances, the client is no longer entitled to invoke professional secrecy in respect of communications they voluntarily made public.
Under French law, there is a strict difference between the status of in-house counsel and external lawyers. In-house counsel are not admitted to the bar and therefore are not bound by the specific professional rules of ethics applicable to lawyers. External lawyers cannot act as in-house counsel, since they must remain independent from their clients.
In-house counsel, like other employees of companies, are only bound by professional secrecy regarding information considered as "business secrets" and received as a consequence of their position within the company.
As only external lawyers are subject to a strict code of professional conduct, legal privilege is not extended to communications between in-house counsel and employees, officers or directors of a company where such communications were created for the purpose of obtaining legal opinions on matters relating to the company's activities. Consequently, an in-house counsel can neither resist an investigation by public authorities (whether EU or national authorities) nor refuse an inspection of the business premises they use, nor oppose a seizure of their communications (except for communications with an external lawyer). In addition, like any witness, in-house counsel can be called to testify or to provide evidence against the company they work for.
In practice, in-house counsel refrain from giving written advice, especially on competition law. Legal opinions of major importance are provided by external lawyers so that they are protected by legal privilege.
Legal privilege does not extend to communications issued by in-house lawyers, who are not subject to the National Regulation of the Lawyer's Profession. As such, in-house lawyers do not benefit from any legal privilege concerning their own internal communications, since they are not legally subject to strict professional secrecy. Even if in-house lawyers have internal obligations to keep business information secret, this obligation falls away when the authorities require internal information for a judicial procedure.
The position of foreign lawyers with regard to privilege depends on whether the foreign lawyer is an EU lawyer and whether the issue of confidentiality arises with regard to acts performed in France or abroad.
EU lawyers
If the lawyer is admitted to a bar association within the EU, their communications with clients are privileged.
In relation to documents exchanged between lawyers from different European bar associations, the default rule is that these are not privileged unless stamped "confidential" or "without prejudice."
Within France, documents exchanged between lawyers are privileged unless stamped "official." If a French lawyer forwards a document received from an EU lawyer that is not stamped "confidential" (and is therefore not privileged) to another French lawyer, then French rules apply and the document will be considered confidential.
Non-EU lawyer working in France as in-house counsel
Privilege does not extend to communications (written or oral) between a company and its in-house counsel working in France, even where the in-house counsel is admitted to a foreign bar association in a jurisdiction where privilege is extended to in-house counsel.
Non-EU lawyer practicing as a Foreign Legal Consultant
Since April 2018, non-EU lawyers can register as Foreign Legal Consultants to practice law in France under the professional title they use in their state of origin if they are nationals of a jurisdiction that entered into an international trade agreement with the European Union, and said agreement includes provisions on legal services.
Foreign Legal Consultants are bound by both the professional rules of their state of origin and the professional rules applicable to lawyers admitted in France.
Therefore, written and oral communications between a Foreign Legal Consultant and a client are privileged.
Non-EU lawyer working abroad
French rules do not address the application of privilege to communications (written or oral) between a lawyer admitted to a bar association outside the EU and a client located in France. However, scholars consider that French courts will take any relevant foreign privilege laws into consideration on the basis of comity.
Accountants are subject to a special code of ethics that incorporates the principle of professional secrecy. Privilege thus also extends to communications between accountants and their clients.
Professional secrecy is also applicable to nonlegal professionals such as accountants regarding communications between a lawyer and a client. When an accountant and a lawyer advise the same client on related matters, both are subject to professional secrecy, and therefore the accountant cannot produce in court a confidential document between the lawyer and the client, or a communication between the lawyer and the client in which the accountant took part. This is because the document or communication is deemed to be subject to legal privilege. However, communications passing directly between the lawyer and the accountant in principle fall outside the protection of legal privilege.
Lawyers' secretaries are also subject to professional secrecy, since their collective bargaining agreement imposes this duty, which if breached can lead to their dismissal for professional misconduct. Thus, in the event of an investigation by public authorities, those employees must object to testifying on the basis of their duty of professional secrecy, unless they are personally indicted.