OUT-LAW ANALYSIS 7 min. read
Document management practices should be carefully reviewed to ensure compliance with France’s new confidentiality law. Photo: ALotOfPeople/iStock
22 Apr 2026, 10:16 am
France’s new confidentiality law introduces privilege for in-house counsel for the first time and may have significant implications for arbitration, amongst other practice areas.
The French legal system has historically distinguished between attorneys at law (‘avocats à la Cour’), who benefit from professional secrecy protected by law, and in-house counsel, who, as company employees, are not registered in any of the 164 French Bars and consequently do not enjoy the same protection of privilege for their legal advice.
However, the increasing complexity of regulation and the expansion of compliance obligations have significantly broadened the responsibilities of in-house counsel in France and other countries, making their role even more crucial in identifying and preventing instances of internal non-compliance, implementing procedures to remedy them, and preventing future potential legal risks.
This increasingly prominent role, combined with the growing internationalisation of business law in France more broadly, has materially altered the playing field for legal privilege in the country.
As French companies are increasingly recruiting in-house counsels among foreign lawyers – who benefit from legal privilege in their home jurisdictions – to protect their correspondence, there have been growing concerns that the previous position was weakening the competitiveness of French legal sector and harming France’s legal attractiveness.
In an effort to bridge this emerging gap – and in keeping with similar developments in other jurisdictions, including common law systems, to extend limited legal privilege to in-house counsel – on 23 February 2026 France promulgated Law No. 2026-122, a new confidentiality framework for in-house counsel’s legal consultations, which was published in the French Official Journal on 25 February.
The new law on Confidentiality of Legal Consultations by In-House Counsel, commonly referred to as the ‘Confidentiality Law’, will enable in-house counsel to carry out a wide range of tasks that are central to the company’s operations, while protecting the company against the risk of self-incrimination.
We discuss below the scope, limitations and eligibility requirements of these new protections for domestic in-house counsel, as well as their procedural implementation and implications for the French legal sector.
The confidentiality afforded to in‑house counsel under the Confidentiality Law is a confidentiality ‘in rem’, meaning that the legal privilege is attached not to the person of the in‑house counsel but to the documents identified by the Confidentiality Law as “legal consultation” –defined under the Confidentiality Law as “personalised intellectual service aimed at providing an opinion or advice based on the application of a legal provision”. This type of confidentiality differs from confidentiality ‘in personam’, which is attached to the lawyer rather than to the type of correspondence itself.
In this respect, the main legal effects attached to confidentiality under the Confidentiality Law are the inviolability and the unenforceability of the relevant document. However, these effects only apply in the context of civil, commercial, or administrative proceedings or disputes.
Indeed, the legislation provides for specific legal carveouts in criminal and tax matters, or in the context of European Union authorities (including the European Commission) when exercising their investigative or supervisory powers. Confidentiality cannot be invoked in these types of proceedings under any circumstances.
Additionally, the company benefiting from confidentiality protection under the Confidentiality Law may waive legal privilege voluntarily, in whole or in part, should the company deem it strategically appropriate to produce a legal consultation.
When an investigative measure is carried out in the context of a civil or commercial dispute, or when a search is conducted within administrative proceedings, the Confidentiality Law establishes a specific procedural framework governing the treatment of legal consultations.
First, the judicial officer (‘commissaire de justice’) is the only person who is duly authorised and deemed competent to seize the disputed legal consultation. Such a seizure must be carried out in the presence of a duly authorised and competent representative of the company, and the claimant or the competent authority in the relevant proceedings.
Second, the disputed consultation must be immediately placed under seal by the judicial officer, who is required to prepare official minutes recording the steps taken. The sealed document, together with the minutes, must be retained at the judicial officer’s office.
Lastly, the authority or the claimant in the relevant proceedings has 15 days to challenge the confidentiality of the seized document. If it fails to do so, the company has 15 days, following the expiry of the previous period, to request the restitution of the sealed document, before the judicial officer proceeds to destroy the sealed document.
The confidentiality framework for in-house legal consultations is subject to four mandatory and cumulative conditions, all of which must be satisfied for a document to qualify for privileged protection. These requirements are:
All in-house counsel – or any member of the team acting under their authority – must hold a Master of Laws (‘Master en droit’) or an equivalent French or foreign recognised and similar degree.
Individuals who do not hold a Master of Laws may be deemed to satisfy this requirement provided they hold a certain level of education and recognised degree – such as a ‘maîtrise en droit’ or completion of the first year of a master’s program in law – while having at least eight years’ professional experience within the legal department of one or more companies or public administrations.
The in-house counsel must have completed training relating to specific professional ethics rules. These rules must be included in a list established by the French authorities, namely the Minister of Justice and the Minister of the Economy.
To qualify for confidentiality, the legal consultation must be exclusively intended for one of the following:
The legal consultation must expressly identify its author and be specifically marked as “confidential – legal consultation – in-house legal counsel”.
Fraudulent use of such a label is punishable under the French Penal Code as forgery and use of forged documents.
In the context of civil or commercial dispute, any party – the administrative authority or the claimant in the relevant proceedings – may challenge the alleged privileged status of one or more legal consultations by initiating summary proceedings before the president of the court that ordered the investigative measure, within 15 days of the measure being implemented. In in the case of investigation visit or search conducted by administrative authorities, the relevant authority may refer the matter to the Judge of Freedoms and Detention (‘Juge des Libertés et de la Détention’, or JLD) within 15 days following the search or the visit, either to dispute the existence of legal privilege or to request its lifting.
The JLD subsequently opens the seal in the presence of a representative of the company and the claimant or the competent administrative authority. After all the parties have been heard, the judge rules on the challenge and on the request for waiver of legal privilege.
If the request to challenge or lift confidentiality is upheld, the disputed consultations are disclosed and submitted in the proceedings. If the request is rejected or dismissed, the consultations remain confidential and returned to the company without delay.
The court decisions of the JLD may be appealed before the First President of the Court of Appeal, who is required to rule within three months. By contrast, the Confidentiality Law does not expressly provide for an appeal mechanism against decisions delivered by the judge supervising civil investigative measures in the context of a civil or commercial dispute.
Furthermore, the company employing the in-house counsel must be represented and assisted by external legal counsel in proceedings relating to the challenge, or lifting of, confidentiality.
On the one side, the adoption of this law has divided opinion across the French legal profession.
While the Paris Bar has strongly supported the text and, together with the French Association of In-house Counsel (‘Association Française des Juristes d’Entreprise’), advocated for its adoption, the National Council of Bars (‘Conseil national des barreaux’, or CNB) remains opposed.
The CNB has submitted several proposed amendments to lawmakers in an effort to bring modification to the text before its adoption. It has also published an official resolution (link in French) stating that the scope of the proposed confidentiality regime and the mechanism for lifting such confidentiality may create legal uncertainty that could harm companies and make the exercise of their rights more complex.
Moreover, the CNB argues that the new framework could lead to unequal treatment between businesses, depending on whether they are able to rely on an in-house counsel falling within the new professional category, and may even restrict access to evidence in some cases.
On the other side, the Confidentiality Law has significant implications for document production in international arbitration, particularly where French companies and French law are involved.
Under the IBA Rules on the Taking of Evidence in International Arbitration, or comparable institutional rules, parties frequently request the production of internal legal analysis and consultations. Once the Confidentiality Law has entered into force, French parties may invoke confidentiality in respect of in-house legal consultations in civil and commercial disputes, which encompasses most commercial arbitrations but also investment arbitration. The scope of documents available for production in proceedings involving French companies may be considerably narrowed as a result, which could have a material impact on the outcome of the case.
For claimants bringing proceedings against French parties, it is important to recognise that internal compliance analysis, risk assessments and legal opinions prepared by qualifying in-house counsel will very soon be shielded from disclosure. In such circumstances, consideration should be given to requesting documents falling outside the scope of confidentiality, including factual summaries and communications with external advisers.
For French respondents, document management practices should be carefully reviewed to ensure compliance with the new regime. Qualifying legal consultations should also be properly labelled and archived separately, and in-house counsel must complete the required ethics training to satisfy the statutory conditions attached to confidentiality.
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