Under French law, when a dawn raid is carried out in a lawyer's office or home, but also on the client’s premises, any seizure of a “document relating to the exercise of the rights of the defense and covered by the legal privilege of the defense or advice”1 is illegal and can be challenged.
These two cumulative criteria, in force since March 1, 2022, have two main exceptions:
- Firstly, legal privilege cannot be enforced against criminal authorities if there are reasonable grounds for suspecting the attorney of having committed or attempted to commit, as perpetrator or accomplice, the offense or an offense related to the one justifying the dawn raid2.
- Secondly, legal privilege cannot be enforced against the authorities if they can establish that the disputed exchanges were used by the client to commit or facilitate the commission of certain tax or financial offenses (tax fraud, terrorist financing, certain cases of corruption and influence peddling), or to launder the proceeds thereto3.
Against this backdrop, the French Supreme Court has recently specified the “documents” or correspondence between an attorney and their client that can be considered as “relating to the exercise of the rights of the defense” and thus protected from seizure.
1. The legal privilege enforceable against authorities is limited to exchanges relating to the rights of the defense occurring after the commission of the facts that are likely to violate French criminal law4.
The court first sets out its interpretation of the scope of exchanges covered by legal privilege under article 56-1 of the Code of Criminal Procedure, based on a dual criterion of both materiality and chronology: henceforth, only those exchanges between the attorney and their client that (i) fall within the scope of the exercise of the rights of the defense and (ii) took place after the reprehensible acts, in other words after the client had committed the alleged offense, would be protected.
In these proceedings, the court had to rule on the case of a driver who had contacted his attorney to find out about the consequences of the administrative suspension of his driving license before causing an accident that resulted in him being charged with manslaughter. Could the legal advice and documents that it was based on be seized and used against the accused driver?
The Criminal Chamber answered positively, ruling that:
- “The advice taken from the attorney, prior to the commission of the offense, was for the purpose of enlightening the individual as to his right to drive a vehicle after a driving license suspension.”
- “The documents that have been seized, in connection with this consultation, do not relate to a legal proceeding or to a proceeding whose purpose is to impose a sanction, so that they do not fall within the exercise of the rights of the defense and could be seized.”
It would therefore appear that, whatever the factual background or content, correspondence and advice from attorneys dealing with the compliance of a transaction or project may be seized and used by the criminal authority, provided (i) they are not directly related to criminal proceedings or, in any event (ii) they were exchanged or produced prior to the execution of the project that is likely to breach criminal law.
An appeal against this highly questionable interpretation of the law has been lodged with the European Court of Human Rights.
2. Legal privilege does not cover exchanges "voluntarily" handed over by a person the day after a search of their premises5.
During a dawn raid, it sometimes happens that an individual commits to handing over a document or storage device (e.g., telephone, computer, etc.) to the representatives of the criminal authorities within 24 or 48 hours of the end of the operation.
However, in the court’s view, this handover, which took place the day after the search, must be regarded as voluntary, so the provisions protecting legal privilege in the event of a dawn raid do not apply to it.
Beyond the serious doubts raised by the qualification of “voluntary disclosure” applied to a person who has just undergone seizure operations, the reasoning of the judgment further confirms the restrictive interpretation now clearly favored by the French Supreme Court with regard to provisions governing legal privilege.
Indeed, in order to rule out the searched client’s legal right to oppose the seizure of a document covered by the legal privilege of the defense and stored on their cell phone, the court specifies “that such an object does not constitute a document within the meaning of paragraph 2 of article 56-1 of the code of criminal procedure.”
In other words, the seizure of the document itself could be challenged by the client under this provision, but not that of the cell phone on which it was stored, which nonetheless provided the authority free access to the said document.
3. Legal privilege attached to a private dispute cannot be enforced against the criminal authorities, regardless of the context6.
As the French Constitutional Council had implicitly stated, the only documents that fall within the scope of the exercise of the rights of the defense, to which legal privilege attaches and can be enforced against the prosecuting authority, are those “documents relating to legal proceedings or proceedings for the purpose of imposing a sanction”7; that is, exchanges taking place in the criminal or enforcement area (financial, tax, competition, etc.).
The French Supreme Court agrees, stating that domestic and European legislation protecting attorney-client privilege “does not in itself prevent the seizure of items covered by this privilege but not linked to the rights of the defense”. It therefore ruled that correspondence exchanged between a client and their attorney in the context of a “private dispute” could be seized, notwithstanding the latter’s connections with parallel criminal proceedings in which the attorney was not defending the client.
The Litigation and Investigations team at A&O Shearman Paris is closely monitoring these developments of French law and case law governing legal privilege, as well as their impact on investigations. We stand ready to provide you with cutting-edge advice to enable you to manage your legal exposure in France and abroad, and assist you in all white-collar, regulatory enforcement, and litigation matters.
Footnotes
1. Articles 56-1, paragraph 2 and 56-1-1 of the Code of Criminal Procedure.
2. Constant and uncodified case law, v. not. Crim., March 5, 2024, n° 23-80.110, Published in the bulletin, § 12.
3. Article 56-1-2 of the Code of Criminal Procedure.
4. Crim., March 11, 2025, no. 24-82.517, published in the bulletin, §§ 27-32, report by A.-G. Thomas, opinion by A. Aubert. Aubert.
5. Crim., March 11, 2025, n° 24-80.296, Published in the bulletin, §§ 8-14.
6. Crim., March 11, 2025, no. 23-86.260, published in the bulletin, §§ 12-17, report by A.-G. Thomas.
7. C. const., January 19, 2023, no. 2022-1030 QPC, § 11.
