France now (partially) protects the confidentiality of legal advice issued by in-house counsel. The corresponding French law was promulgated on 25 February 2026.
This reform puts an end to a long-standing French exception that disadvantaged domestic companies and repositions France within the landscape of international legal competition.
A long-standing French exception finally addressed
Until now, France was among the few major economic powers that did not protect internal legal advice. This gap placed French companies at a disadvantage compared with their international competitors.
Things have changed with French Law no. 2026-122 of 23 February 2026.
According to professional associations, this reform represents “a decisive step in strengthening legal certainty for companies and preserving French economic and legal sovereignty.”
Some Members of Parliament referred the matter to the French Constitutional Council to challenge the constitutionality of this new mechanism. In its decision of 18 February 2026, the French Constitutional Council upheld the statute, subject only to two interpretative reservations concerning the procedure for lifting confidentiality.
How the Regime Works in Practice
- Conditions
Protection applies to legal advice drafted by in-house counsel, subject to four cumulative conditions:
1. Qualification of the in-house counsel: holder of a Master’s degree in law or an equivalent qualification.
2. Ethical training: specific training in the ethical rules applicable to in-house counsel (details to be set out by decree), distinct from lawyers’ professional ethics.
3. Mandatory marking: “confidentiel – consultation juridique – juriste d’entreprise” [“confidential – legal advice – in-house counsel”], with identification of both the author and the recipient.
4. Purpose of the consultation: relating to the provision of an opinion or advice based on the application of a rule of law.
5. Authorized recipients: a limited group including company executives, management, administrative or supervisory bodies, and entities within the corporate group.
To be noted: successive versions of a legal opinion (“drafts”) are also protected.
- Scope of Confidentiality
| Enforceable in: | Not enforceable in: |
| • Civil proceedings • Commercial proceedings • Administrative proceedings | • Criminal proceedings • Tax proceedings • Investigations conducted by EU authorities |
- Confidentiality waiver or restrictions
Confidentiality may be set aside in three situations:
1. Waiver by the company: confidentiality belongs to the company, not to the in-house counsel.
2. Judicial decision: where the judge finds that the advice was intended “to facilitate or encourage the commission of breaches” or fraud.
3. Administrative oversight: confidentiality may not impede the exercise of the powers granted to an administrative authority under a French organic law.
- Procedure for challenging confidentiality
In the event of a dispute over the confidential nature of a document:
1. Seizure: only a bailiff (commissaire de justice) may seize the disputed document.
2. Sealing: the document is immediately placed under seal.
3. Proceedings: a 15-day timeframe to refer the matter to the competent judge.
4. Decision: the judge reviews the document in the presence of the parties and orders either its disclosure or its restitution.
- Distinction from Attorney–Client Privilege
Care must be taken not to mistake the two regimes: this reform does not extend attorneys’ professional secrecy to in-house counsel but instead creates a distinct and autonomous framework.
| Attorney–client privilege | In-house counsel confidentiality |
| In personam protection (attached to the individual) | In rem protection (attached to the document) |
| Absolute and general | Conditional and limited |
| Enforceable in all proceedings (subject to exceptions) | Not enforceable in criminal, tax, or EU proceedings |
Immediate Practical Guidance
For legal departments:
1. Anticipate training requirements: identify concerned in-house counsel and organize ethical training once the implementing decree is published.
2. Standardize confidentiality markings: create templates including the mandatory wording in both French and English languages (“confidentiel – consultation juridique – juriste d’entreprise” / “confidential – legal advice – in-house counsel”), with systematic identification of author and recipient.
3. Identify authorized recipients: establish a precise list of individuals and bodies entitled to receive confidential legal advice.
4. Archive successive versions: retain drafts, which also benefit from protection.
5. Train teams: raise awareness among in-house counsel and executives regarding the conditions and limits of the regime.
For corporate governance:
1. Secure distribution channels: strictly limit circulation of legal advice to authorized recipients.
2. Document internal procedures: formalize processes for requesting, drafting, and retaining legal advice.
3. Avoid overestimating the protection: emphasize that it does not apply in criminal or tax matters or vis-à-vis European authorities.
Key issues still requiring clarification include:
• Practical arrangements under the implementing decree, and notably the date of application of this new regime.
• Interaction with whistleblower protection obligations.
• The effectiveness of confidentiality against requests from foreign authorities in the context of extraterritorial proceedings.
The legislation is moreover explicitly described as a “first step.” The French government acknowledges that “targeted adjustments” may prove necessary. An assessment report will be submitted to the French Parliament in three years.
For further information, please contact:
Djazia Tiourtite, Partner, Bird & Bird
djazia.tiourtite@twobirds.com
