In France, any communication between an attorney and a client is protected by professional secrecy ("secret professionnel") which is a general and absolute principle that has no limitation in time. More specifically, the attorney-client privilege is set out in article 66-5 of Act No. 71-1130 of 31 December 1971 which provides that a lawyer who violates the protection of professional secrecy is liable to disciplinary proceedings. Violation of a lawyer's professional secrecy also constitutes a criminal offense pursuant to article 226-13 of the French Criminal Code.

Professional secrecy applies in all matters (advisory or contentious) and serves as a shield against administrative and judicial authorities. This protection applies no matter when a document was created or issued and regardless of the medium used (oral or written, paper, email, fax, etc.). Thus professional secrecy applies to all kinds of documents in the possession of the lawyer and to all documents transmitted by the lawyer (preparatory notes, internal documents, documents already communicated to a client, etc.).

The French approach of attorney-client privilege (or the lawyer's professional secrecy) is based on the fact that a lawyer is involved in the communication and not on the actual content of the document/information (in personam approach as opposed to in rem approach).

Only the attorney is subject to the obligation of professional secrecy. The client is not bound by such confidentiality. French law provides that no one, not even the client, may relieve the lawyer of his obligation of secrecy.

Attorney-client privilege is recognized in France. See answer 1.

French legal professional secrecy applies to both civil and criminal proceedings.

However, in criminal proceedings, under certain circumstances, search and seizures may be ordered against a lawyer's office, place of work, or home. Searches in a lawyer's office (or home) are carried out by a magistrate following a reasoned and written decision by the magistrate.

The decision to search the lawyer's premises must provide prior evidence that he or she may have participated as a perpetrator or accomplice in the commission of the offense for which the search is being conducted.

It is also worth bearing in mind the decision of the Criminal Chamber of the Court of Cassation of 3 April 2013 (No. 12-88021) which stated that "only documents or items relating to the offenses mentioned in the decision of the judicial authority may be seized, subject to the condition that, apart from the case where the lawyer is suspected of having taken part in the offence, the right of free defence is not prejudiced."

Nevertheless, there is still uncertainty in French case law and doctrine as to the application of the criteria necessary to implement such searches and seizures in a lawyer's office (or home) (e.g. the necessary degree of suspicion of the lawyer's involvement in the offence, the notion of the right of defence, etc.).

From a procedural point of view, in case of such proceedings of searches and seizures, the investigating authorities must inform the Bâtonnier, who is the head of the local bar, and the Bâtonnier (or her/his delegate) must be present during the search or seizure in order to ensure that protected information is not seized by the authorities.

The Bâtonnier may then formulate observations to oppose the seizure of an item. The item is then placed under seal and the report of the operations is sent to the liberty and custody judge (juge des libertés et de la détention), who has five days to rule on the objection by a reasoned order that cannot be appealed, deciding either to add the seal and the report to the file of the proceedings, or to return the item and cancel any reference to it in the file.

*Note: the legislative framework for authorized breaches of professional secrecy (in particular through searches or seizures involving lawyers) is currently under parliamentary discussion and may therefore be amended in the near future. A bill, introduced by the French Government in May 2021, notably providing for a reform of the lawyer's professional secrecy, aims at ensuring better protection of professional secrecy by strengthening the guarantees provided for searches of a lawyer's office or home and wiretapping.

In principle, information and correspondence covered by professional secrecy can neither be seized nor consulted by third parties, and the lawyer cannot make any disclosure or statement regarding elements covered by professional secrecy. This information will be regarded as privileged vis-à-vis the administration, independent administrative authorities or judges.

One of the main exceptions to the protection of professional secrecy is when there is evidence of the lawyer's involvement in the commission of an offence or a crime. In such case, under some circumstances, the investigating authorities may seize information or documents (or apprehend written and oral communications) normally covered by professional secrecy.

Another important exception to the protection of professional secrecy is that a lawyer may disclose elements normally covered by this protection for the strict requirements of her/his own defence in order to respond to accusations against her/him (particularly in cases when her/his civil liability is involved or in the event of a dispute over fees).

Finally, a lawyer can disclose information normally covered by professional secrecy in specific cases of declaration or disclosure provided for or authorized by law. The following are examples of cases of declaration or disclosure provided for or authorized by the law (non-exhaustive list):

• The lawyer must disclose the identity of the client, the amount, the date and the form of payment when she/he has been appointed as escrow agent for the price of the transfer of goodwill and when she/he is questioned by the Direction Générale des Finances Publiques on the distribution of this amount.
• In the context of the fight against money laundering, the lawyer acting as a fiduciary, outside his or her typical professional capacity, must correspond directly with TRACFIN (Traitement du Renseignement et Action Contre Les circuits Financiers clandestins) without being able to invoke professional secrecy in the exercise of his fiduciary activity.
• In the context of asset freezing and under particular circumstances provided by law, professional secrecy is not an obstacle to the exchange of information between lawyers and the state services in charge of preparing and implementing a measure freezing or prohibiting the movement or transfer of funds.
• The lawyer could inform the judicial, medical or administrative authorities of abuse (including sexual abuse) of which she or he has the knowledge and which has been inflicted to a minor or a person under protection.
• Finally, other kinds of searches and visits, potentially breaching the lawyer's professional secrecy, are possible and provided by the law: visits by the AMF (Autorité des Marchés Financiers), searches by the tax authorities, searches by the DGCCRF (Direction Générale de la Concurrence, de la Consommation et de la Répression des fraudes), etc. The modalities of these searches (presence of the Bâtonnier, his delegate or any other supervisory authority) vary according to the applicable regime).

Attorney's professional secrecy does not apply to in-house lawyers ("juristes d'entreprises").

However, since corporations act through representatives and individuals, the communications between these individuals, representing the corporate client (in-house lawyers, directors, etc.), and outside counsels are covered by professional secrecy. In order for communication between an outside counsel and an in-house lawyer (or corporate employee) to be protected by professional secrecy, the employee should have acted for the corporation in her/his communications.

Attorney's professional secrecy does not apply to in-house lawyers.

Attorney's professional secrecy does not apply to in-house lawyers. The protection of professional secrecy does not apply to communications between in-house counsel and employees, officers, or directors of their employer.

In practical terms, this also means that it is not sufficient to stamp a document as "confidential" or "attorney privilege" to shield it with professional secrecy. A purely internal document (e.g. exchanged between in-house lawyers) will not be protected by professional secrecy. Only documents exchanged between a person representing the company (e.g. an in-house counsel) and the company's outside counsel will be protected by the attorney's professional secrecy.

However, one should note a recent decision of the Paris Court of Appeal of 8 November 2017 (Case No. 14/13384). In this case, an administrative authority had seized emails between employees and in-house counsels of the same company. Even though the emails were not sent to or issued by an outside counsel, they were essentially comprised of information provided by outside counsel to the company's representatives. This was enough for the Court of Paris to consider that these communications were part of the company's defense preparation and strategy and that their seizure by the administrative authority, therefore, infringed professional secrecy and had to be annulled.

Finally, it is always advisable for a company to identify the documents which are (or could be) covered by professional secrecy in the event of an administrative or judicial search or seizure. This will enable the outside counsel (if present) or the in-house lawyers to check the procedural regularity of the seizures, to oppose the seizure of certain documents covered by professional secrecy, to make reservations, or to react more quickly to contest the seizures later on in accordance with the applicable procedures.

*Note: a few months ago, a bill was discussed to create an experimental status for in-house lawyers. The French Minister of Justice finally decided to abandon the project due to the lack of consensus between the representative bodies of the legal profession and the various parties involved in the public debate. However, the public debate on the need to improve the protection of correspondence and information exchanged with and between in-house counsel remains very active in France.

In-house counsel cannot simultaneously practice as attorneys and cannot be members of the Bar.

There is no "common interest doctrine" recognized under French law. If properly applied, French professional secrecy still applies to attorneys working for clients sharing a common interest.

See above answer to question C.1

See above answer to question C.1

There are no specific rules under French law on litigation funding which is therefore authorized but not regulated (by legislative or regulatory rules). As a matter of example, a 2006 court decision has qualified the third-party funding agreement as a sui generis agreement, that is to say, an agreement subject to basic contract law. The use of litigation funding is not very developed in France and is traditionally limited to international arbitration proceedings.

As far as professional rules are concerned, the Conseil National des Barreaux (Council of National Bars or "CNB") adopted in 2015 a resolution encouraging the creation of rules concerning litigation funding. Nevertheless, the CNB stressed that all ethical rules strictly apply even in the case of third party funding: the French attorney must stay independent from the funder, and abide by the ethical rules towards its client, and only its client.

On February 21, 2017, the Paris Bar issued a resolution to encourage the recourse to litigation funding, noting that it was in the interests of clients, especially in international arbitration. The Paris Bar noted that under French law "nothing prevent[ed] parties from using a third party to fund arbitration proceedings".

That being said, there is no attorney-client privilege with respect to the third-party funder. Indeed, French professional rules for attorneys only apply to the attorney vis-à-vis its client regardless of the existence of an interested third party.

In sum, although litigation funding is not regulated in France, it is considered lawful and possible. French professional institutions have confirmed that the practice was compatible with the attorney's ethical rules but have recalled that these ethical rules only cover the relationship between the attorney and the client and not the relationship with the third party funder.

To the best of our knowledge, no national courts addressed the matter of attorney-client privilege related to third-party funding. Nevertheless and as explained above, the ethical committees of French Bars have expressed the views that ethical rules such as attorney client privilege protection do not apply to the third party but remain exclusively between an attorney and their client.

Under French law, there is no general legal provision that covers the concept of "crime-fraud-exception". However, in certain cases, French law sets aside the application of attorney-client privilege in the case of certain specific offenses or risk of offenses.

Indeed, a lawyer may not participate or assist a client in committing an offense.

Under French law, as explained above, when there is suspicion of a counsel's involvement in the commission of an offense or a crime, the investigating authorities may seize information or documents (or apprehend written and oral communications) normally covered by professional secrecy. However, the implementation of this principle is subject to some uncertainty in both case law and doctrine as to the exact criteria to be applied in order to carry out such visits/searches. Given this uncertainty, draft laws are being discussed and prepared to make the criteria for application more specific and more explicit. In any event, search and seizure of a lawyer's office, even if authorized in exceptional cases, will be subject to specific procedural safeguards (for instance the presence of a representative of the Bar to control what documents are protected by professional secrecy).

In addition, the lawyer's professional secrecy may also be waived in the context of certain reporting obligations to the tax authorities, in the context of a sports mandate or in the context of legislation relating to money laundering or to the freezing of assets or in the context of the fight against terrorism.

Furthermore, professional secrecy is not applicable to a lawyer who informs the judicial, medical, or administrative authorities of deprivation or abuse of which she/he has the knowledge and which has been inflicted on a minor or a protected person.

Under French law, there is no general legal provision that covers the concept of "crime-fraud-exception". Nonetheless, French law provides for different exceptions where the attorney's professional secrecy would not be applicable, notably when the attorney participates or assists a client in committing an offense or when the attorney is aware of certain specific offenses committed by the client (see above answer A.3).

There is no equivalent of the ‘work product’ doctrine in France.

French attorney-client privilege covers all communications as well as all materials issued by an outside counsel in his or her professional capacity for the defense or advice of the client. Article 2.1 of the RIN (Règlement Interieur National) of the legal profession provides that professional secrecy of the lawyer is "general, absolute and unlimited in time".

Article 2.2 of the RIN specifies the scope of this protection and provides that professional secrecy covers all matters whatever the medium used, material or immaterial (paper, fax, electronic…) and gives some examples of protected information such as advice and consultation addressed by an outside counsel to his client or intended for the latter, correspondence exchanged between the client and his outside counsel, between the outside counsel and other outside counsel (with the exception of those bearing the mark "official"), the notes of interviews and more generally all the documents in the file, all information, and confidence received by the outside counsel in the exercise of the profession, etc. Therefore, all materials prepared by an attorney in anticipation of litigation or for trial are inevitably covered by French attorney-client privilege. However, there is no protection under the French law of information that is not covered by attorney-client privilege, and all documents prepared by a party itself, even in anticipation of litigation, might be disclosed in case of successful application from the other party (provided that in these documents, none of them were prepared or sent by the attorney).

See above.

Accountants are subject to professional secrecy (Article 226-13 of the French Criminal Code).

In the event of a breach of professional secrecy (save for exceptions provided for by law), accountants would be exposed to criminal, civil or disciplinary sanctions.

Beyond this obligation of professional secrecy, accountants are bound by a duty of discretion and an obligation of confidentiality.

According to article 131-14 of the French Code of Civil Procedure, the mediator's findings and statements may not be produced or relied upon in subsequent proceedings without the agreement of the parties, or in any event in any other proceedings. Thus, unless the parties agree otherwise, mediation is subject to the principle of confidentiality.

However, article 131-4 of the Code of Civil Procedure is only intended to apply to judicial mediation. Therefore, in the context of ad hoc mediation, where the parties can determine the extent of confidentiality themselves, it is prudent to establish some terms of reference at the beginning of the process which contains precise stipulations covering this issue. Most institutions have incorporated provisions similar to those in article 131-4 into their rules.

In addition, article 226-13 of the French Criminal Code regarding professional secrecy (in a general way and not only the professional secrecy of the lawyer) also applies to the mediator.

There is no specific protection of settlement-oriented communications in France. These communications are covered by the attorney-to-attorney communication privilege.

Thus, even if the exchanges between attorneys led to a settlement agreement between their respective clients, these exchanges cannot be subsequently disclosed to provide evidence of an agreement. The same is true of all documents and information exchanged between counsel in the course of negotiations.

In practice, only exchanges between lawyers that are marked "official" can be used in court. Thus, in the case of an agreement between lawyers, following confidential exchanges, it is advisable to create "official" correspondence between them which would include, without reference to prior confidential exchanges, the terms of the agreement reached between the parties. For example, one lawyer may write to the other lawyer (marked "official") that his client intends to terminate the dispute under X or Y terms (without reference to the previous exchanges) and ask the other lawyer to confirm his own client's agreement by official letter. The agreement will then not be covered by attorney-client privilege and can be used in court.