Jérémie Fierville comments on France passing a new in-house privilege law in CDR News

Law 2026-122, [CDR's translation] "on the confidentiality of consultations with in-house counsel", was promulgated on 23 February, having been passed not only by both chambers of France's legislature, but also by the country's highest constitutional authority, the nine-member Conseil constitutionnel or Constitutional Council which reviews new laws before they enter into force.

Legislation had been under discussion at least since the 1980s, most recently with a failed attempt in November 2023, so Signature Litigation partner Jérémie Fierville, a Paris-based civil and commercial litigator who has previously practised in London, hails the new law as "a major breakthrough, long-awaited and very important for businesses in France."

“The purpose of this new law is to create a legal framework inspired by […] legal privilege which will secure the internal analysis provided by in-house lawyers in France, hence giving them a more strategic role in their companies. Subject to certain conditions, analysis that they draft for their management on legal points will be protected from being disclosed in civil or administrative proceedings,” Fierville sums up, adding: “With the strong development of legal and compliance departments over the past decade, it was really important that the law be passed.”

The Paris Bar Association was supportive of the new law, in contrast with the substantial opposition to it from private practice lawyer organisations based outside the capital, who objected to the increased competition the law would create for their sector. “In my sincere opinion, the fear expressed was groundless since this law will strengthen companies operating in France and their legal departments, and I do not understand how this could be detrimental to external counsel,” says Fierville, who confesses to being at a loss as to what useful ends such opposition would achieve.

Certain public bodies also expressed reservations, including the Autorité des marchés financiers (AMF), the French financial markets regulator which objected to the new law’s potential to hinder investigation into wrongdoing by putting documents beyond the reach of the authorities, but Fierville considers this objection to be somewhat misguided: “The US Securities
and Exchange Commission (SEC) and the UK Financial Conduct Authority (FCA) must both take into account legal privilege in their investigations and are nevertheless efficient regulatory bodies. I am certain that the AMF will adapt in a similar way, and that its investigations will not be weakened by the new law.”

Fierville adds: “If the arbitrator decides a memo is covered by legal privilege, will a party be entitled to go before a civil court judge to challenge that? That is an interesting question, to which I am certain answers will soon be provided.”

In the meantime, Fierville is clear that internal training should be high on the list to ensure corporations avail themselves of the protection offered by the new law: “Companies now need to
create a clear set of internal guidelines on how to protect their legal analyses when they fall within the scope of the law, and [warn] external counsel to be ready to raise this argument before courts and regulators.”