France extends legal privilege for the first time to in-house counsel

France has enacted its first statutory confidentiality regime for legal opinions produced by in-house counsel, concluding a multi-year legislative process that began in April 2024. Parliament adopted Law n° 2026-122 introducing a French legal privilege following its final approval by the Senate on 14 January. 

The regime was submitted to the French Constitutional Council on 18 February, which confirmed its validity subject to the ability for several authorities to conduct their investigation and control the “legal privilege objection”. It became enshrined in French law after its promulgation on 23 February and will enter into force after the decree is published no later than 23 February 2027 (one year after promulgation).

Before the reform

Under the regime provided for in a 1971 statute, legal communications produced by in-house lawyers in France were ordinary documents, which could be seized during investigations or disclosed in litigation unlike communications with external lawyers (avocats) covered by legal privilege. 

The position set France apart from common law jurisdictions, where legal advice privilege applies to protect in-house communications. This legal situation has long been questioned, particularly in cross-border matters, where French companies were seen as operating at a disadvantage compared to common law jurisdictions. 

How the new regime works

Protection is available only for qualifying written legal consultations and is subject to strict statutory conditions. These relate to the qualifications of the in-house lawyer, the nature and formal identification of the legal consultation, including mandatory confidentiality wording and internal record-keeping requirements. Advice may only be shared with authorised recipients within the relevant company or group.

Once these conditions are met, qualifying legal consultations are protected from seizure and disclosure in civil, commercial and administrative proceedings, unless the company waives confidentiality. 

However, the protection does not extend to criminal proceedings, tax matters or investigations by EU authorities. 

Rationale behind the reform

The purpose of the reform goes beyond simply aligning France with foreign jurisdictions. By allowing in-house legal teams to advise governing bodies, without fear that those opinions will later be turned against the company, the regime is likely to encourage more robust internal compliance and risk-management practices.

Osborne Clarke comment 

This is a genuine step forward in French regulation. However, an important distinction lies in the scope of protected communications. Under the new French regime, the legal consultation must be addressed to specified authorised recipients, in particular members of the company's governing bodies, and must satisfy demanding formal requirements, including a mandatory confidentiality notation. 

By contrast, in the United States, attorney-client privilege broadly covers confidential communications between in-house counsel and any company employee acting within the scope of their duties, without requiring that the advice be directed to senior management. Similarly, in England and Wales, legal advice privilege protects confidential communications between in-house solicitors and their client drafted for the purpose of giving legal advice, irrespective of the seniority of the recipient within the organisation. 

There is value in companies reviewing how the regime applies across their group structures where advice circulates between entities in different jurisdictions. The period before the implementing decree takes effect offers a useful opportunity to review how legal consultations are drafted, marked and filed internally.