SPOTLIGHT #20: The confidentiality of in-house legal advice: the end of a ten-year legislative journey
At Lead up, we are committed to providing our clients with the most innovative conflict resolution solutions tailored to their specific industry contexts. To achieve this, we stay abreast of the latest developments in our clients’ sectors and analyse these changes in relation to their needs.
Each month, in the “Lead up Spotlight,” we share with our colleagues, clients, and potential partners our analysis of a recent development related to conflict resolution in a sector that matters to us and our clients.
This month’s spotlight focuses on a decisive turning point for the international business community with the implementation of legal privilege for in-house counsel in France. This reform aims to modernise the French legal framework in line with internationally accepted confidentiality standards, offering companies a strengthened strategic shield in the management of their international disputes and arbitration proceedings.
A decade of debate: aligning France with international standards
The definitive adoption of the law on 14 January 2026 concludes a legislative journey that spanned more than ten years. For over a decade, the French legal community debated the necessity of protecting the work of in-house counsel, a privilege already widely recognised in most major jurisdictions, including the United Kingdom, the United States, and Germany. By resolving this long-standing issue, France finally moves away from its position as an outlier, ensuring that its legal framework meets the expectations of the global business community.
Although the law was definitively adopted on 14 January 2026, the text has been referred to the Conseil constitutionnel for review of certain procedural aspects. This referral does not call into question the significance of the reform, which marks a structural shift in the way international groups will manage their legal risks from France.
The new law, which inserts Article 58‑1 into the Law of 31 December 1971, finally addresses the long‑standing vulnerability of communications produced by French in‑house counsel. It provides that legal opinions drafted by in‑house counsel are confidential and, as such, may neither be seized nor compelled for disclosure in civil, commercial, or administrative proceedings.
At this stage, however, the new regime has not yet entered into force. Its practical application remains subject to promulgation, following the completion of the constitutional review.
The goals of the reform: competition, attractiveness, and compliance
The reform pursues three primary objectives: to eliminate an increasingly unjustified distortion of competition between French companies and those from other jurisdictions, to enhance the attractiveness of Paris as a major legal hub, and to incentivise companies to comply with the law.
This incentive for compliance is fundamentally linked to the protection of internal legal analysis. As noted by Professor Frison-Roche and cited by Jean Terlier in his report: “if non-compliance is not analysed and transmitted while being protected by confidentiality, the company will prefer to know nothing about it, which will deprive the community of its power of action in the future“. This confidentiality is therefore a prerequisite for effective corporate governance and proactive risk management.
This reform can have a significant impact at the document production stage, particularly in the context of France‑seated arbitrations. Parties have long faced practical difficulties arising from the asymmetry of legal privilege between common law and civil law jurisdictions. By granting confidentiality to legal opinions drafted by in‑house counsel, the new law provides companies with a solid legal basis to resist requests for the disclosure of internal legal analyses, strategy memoranda, or compliance assessments in international arbitrations.
Strict conditions for a robust protection
The new law introduces a specific protection regime for legal consultations, which are now protected from production or seizure in civil, commercial, and administrative proceedings. However, this protection is subject to strict conditions:
- Qualification: The drafter must hold a Master’s degree in law (or an equivalent qualification, with transitional measures for experienced practitioners).
- Ethics: The jurist must have completed specific training in professional ethics.
- Destination: The consultation must be intended exclusively for the company’s management or governing bodies.
- Formalism: The document must be clearly identified with the mention “confidentiel – consultation juridique – juriste d’entreprise” and be subject to a specific internal filing system.
It is crucial to note that this confidentiality is not absolute. In accordance with the current text, the protection does not apply to criminal or tax matters. Moreover, it is strictly limited to legal opinions drafted by in‑house counsel. Unlike the legal privilege applicable to French avocats, it does not extend to correspondence sent to in‑house counsel, nor to exchanges with other company employees or third parties. The scope of confidentiality is therefore narrower and requires careful structuring of internal legal communications. Furthermore, it cannot be invoked against the investigative powers of European Union authorities.
The mechanism is designed to be transparent rather than a “black box”. If the seizure of a consultation is deemed necessary, it is carried out by a commissaire de justice (i.e. a bailiff/judicial officer). The company may then challenge the measure before the judge who ordered the investigation or, in the case of an administrative authority, before the Juge des libertés et de la détention. This allows for a fair debate before a judge regarding the possibility of accessing the content of the document, ensuring a balance between legal privilege and the requirements of evidence.
Lead up avocats remains at your disposal to assist you in auditing your internal procedures and implementing the protocols required to benefit from this landmark reform.