The strengthening of the French anti-corruption legal framework increases the number of corporate internal investigations and paves a new way for lawyers to provide assistance and advice to their clients. To better apprehend this relatively new practice, the Paris Bar Council issued guidelines in 2016 – the Vademecum on the Investigating Lawyer – annexed to the Internal Rules of the Paris Bar.
In the face of certain practical challenges, the Paris Bar Council also issued a report on December 10, 2019 in order to provide further solutions and guidance to lawyers. This report addresses the challenges and interests at plays in relation to the status and the role of the “investigating” lawyer in an internal investigation (the “Report”1) and calls for the amendment of the Vademecum2. Articles of the Vademecum were thus modified in 2020, namely to reaffirm the application of professional secrecy and independence of the investigating lawyer.
I. A uniform application of professional secrecy to the “investigating” lawyer
When issued in 2016, the Vademecumdistinguished between whether the lawyer was providing expertise or assistance and advice in order to determine the application of professional secrecy. The 2020 updated Vademecumremoves this distinction and calls for a consistent application of professional secrecy.
Indeed, the Paris Bar Council abolished the concept of lawyer expert by considering that internal investigations, insofar as they can serve and feed communications to the prosecuting authorities, are necessarily part of an assistance and advice mission and are thus covered by professional secrecy.
This position goes against the Guidelines on the implementation of the CJIP issued by the French Anticorruption Agency (“AFA”) and the communications of the National Financial Prosecutor Office (“PNF”) in that they indicate that not all documents in an internal investigation report are necessarily covered by the professional secrecy of the lawyer3.
The Vademecumalso specifies that professional secrecy shall apply to external experts and assistants the lawyer will have recourse to and commission during internal investigations.
Article 3 provides that “[a]s in all matters, the lawyer in charge of an internal investigation is bound by professional secrecy solely with respect to his/her client – no other person may request to benefit from it. In accordance with the rules of professional secrecy, when a report or any other document is drawn up by the lawyer during his/her mission, it is handed over to the client exclusively, who remains free to pass it on to a third party”.
II. The assessment of the independence of the “investigating” lawyer
Within the course of an internal investigation, the lawyer of the legal entity becomes an “investigator”, an information and “evidence collector”4.
In a context of a cooperation with the authorities, the AFA and PNF guidelines encourage “regular exchanges” between the lawyer and the authorities.
This incentive raises questions, particularly with respect to the extent of what a lawyer can disclose. The Report reaffirms the independence of the lawyer vis-à-vis authorities in the course of an internal investigation. Article 10 of the Vademecum provides that “[t]he lawyer conducting an internal investigation shall ensure that he/she is independent in the governance of the investigation and possible communications with an authority”.
Considering this principle of independence, the Vademecumalso defines the limits as to the intervention of the “investigating” lawyer. Indeed, “[i]f the internal investigation is called into question, the lawyer may recommend to his/her client to be represented by another lawyer for the separate stages of the internal investigation”. While the Vademecumdoes not prohibit the investigating lawyer to assist her/his client in investigative or judicial proceedings, relating to or arising from the internal investigation, it specifies that she/he “should refrain from doing so, to represent the client in proceedings brought by the client against a person the lawyer has interviewed during the internal investigation”. In any case, she/he “shall refrain from accepting an investigation that would lead to an assessment of work previously carried out by him/her”.
Although internal investigations have been carried out in France for several years, there are no dedicated standards governing them. While international standards are applied, and some rules are drawn from existing laws, the clarification of ethical rules for practitioners by the Paris Bar Council is a helpful way forward.
- Report on the interests at play in relation to the status and the role of the “investigation” lawyers in internal investigations of December 10, 2019, Basile Ader and Stéphane de Navacelle, http://www.avocatparis.org/system/files/publications/rapport_avocat_enqueteur_-_decembre_2019_2.pdf.
- AFA/PNF Guidelines on the implementation of the judicial public interest agreement, June 26, 2019, p. 10, (“[in] the event that the company refuses to transmit certain documents, it is for the public prosecutor’s office to determine whether such refusal appears justified under the rules applicable to such secrecy. In the event of a disagreement, the public prosecutor’s office shall assess whether the failure to hand over the documents concerned adversely affects the level of cooperation of the company. This assessment considers, where appropriate, the legal consequences that waiving professional secrecy could have under foreign laws”).
- “L’avocat et la preuve aujourd’hui et demain”, Dominic Jensen, in Exercer et entreprendre 2017, p.53.