the right of defense in danger

While he was in a butt with the magistrates since his arrival at the Ministry of Justice, Eric Dupond-Moretti will now have to face the wrath of lawyers.

Because of a funny affair, full of twists and turns, which is almost at its denouement. A seemingly technical matter, but which is in reality very political. It was Eric Dupond-Moretti who unwittingly started it all with his pompously titled law “Confidence in the judicial institution”. In the mass of disparate articles of this law, the Keeper of the Seals has slipped a provision on the professional secrecy of lawyers. As a former confrere, he wanted to reinforce this secret.

And there was no law on solicitor-client privilege until then?

Yes, for 50 years. But this law, which dates from 1971, was methodically trimmed by the judges who respected the secrecy that attaches to litigation activities (everything that revolves around trials), but less and less that which relates to advisory activities. (an increasingly important part of law firms). It is this worrying drift for the rights of defense that Eric Dupond-Moretti wanted to re-sanctify. And his proposal was first voted unanimously by the National Assembly. Applause from lawyers, bars and all that the courtrooms count as stars of the pleading. For a bit, they would have intoned a thunderous “He is one of us”.
Was it then that it went wrong?

Exactly. The Senate tore it all down. If he confirmed that professional secrecy protected the lawyer, he made two huge breaches in this wall. Secrecy will no longer exist for advice on tax and economic crime matters, and it will also break as soon as the lawyer is the subject of maneuvers which can be linked to an offence, a very vague formulation which seems potentially very dangerous. Because in these cases, the judges will be able to seize all the exchanges between a lawyer and his client. The confidentiality of exchanges, which is a centerpiece of justice, an essential element of the rights of the defence, this confidentiality is seriously threatened.

All the same, the fight against tax evasion and economic crime are national causes.

Of course, but at what cost? What worries lawyers a lot is that this law will allow judges to tumble into their offices, to seize their files, to enter into the intimacy of the relationship of trust between a client and his counsel. The secrecy of conversations between a lawyer and his client had already been abused in the Bismuth-Sarkozy affair (the exchanges between the former head of state and his lawyer Me Thierry Herzog had been listened to and used against them). But this time, it’s on an industrial scale that it’s going to be possible. Tax evasion and money laundering are extremely serious offences, sometimes with very complex international ramifications to disentangle. The trend today is zero tolerance for this range of offences. Ok, but their perpetrators are no different from other offenders: as long as they are not definitively condemned, they are presumed innocent, and their rights must be preserved. In any case, the lawyers will surely be heard.

And what can happen now?

Demonstrations, strikes, protests from this very influential profession (after the aborted project to reform their pension system, this will be the second time in the five-year term). Afterwards, everything will depend on the Head of State. In this standoff between Finance and the Ministry of Justice, it is clearly Bercy who won. If this text goes to the end, it will be one more notch in the balance sheet of the five-year term, which already had a heavy liability in terms of public freedoms. It is now up to Emmanuel Macron to choose.

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