Lawyer Immunities and Guarantees
Explanation
The law enshrines the sanctity of the right of defense to protect the lawyer during their work. A lawyer is not held liable for lawsuits of defamation, slander, or contempt [la diffamation, la calomnie, l'outrage] resulting from their written or oral pleadings, provided they do not exceed the limits of defense. The law also prohibits the preventive detention [la détention préventive] of a lawyer in these lawsuits if they result from statements or writings issued by them while practicing the profession.
To ensure the impartiality of the judiciary in lawsuits of defamation, slander, and contempt directed against a lawyer, the law prohibits any judge in the court where the incident occurred from participating in hearing the case. On the other hand, the law aggravates the penalty for any crime committed against a lawyer during or because of the practice of the profession, as the perpetrator, accomplice, accessory, and instigator are punished with the same penalty prescribed when the crime is committed against a judge.
The law protects the lawyer's office from sudden measures. No judicial decision to search a lawyer's office, seize their funds, or inventory their assets shall be executed until at least 24 hours have elapsed after depositing a copy of the decision at the Bar Association center. This step must be accompanied by an invitation addressed to the President of the Bar Association [le Bâtonnier] to attend the proceedings in person or through a member delegated by them from the Bar Council.
A lawyer may not be interrogated about a crime attributed to them before notifying the matter to the President of the Bar Association, who has the right to attend the interrogation. The case of a crime caught in the act [le flagrant délit] is exempted from this condition. Furthermore, a lawyer may not be prosecuted for an act arising from or in the course of practicing the profession except by a decision of the Bar Council granting the authorization to prosecute [l'autorisation de poursuite], and the Council is the one that assesses the connection of the act to the profession.
The Bar Council must issue its decision regarding the authorization to prosecute within one month from the date of notifying the President of the Bar Association in writing. If the month elapses and the decision is not issued, the authorization is considered implicitly granted. The decisions of the Bar Council and the decisions of the Retirement Fund Management Committee are subject to appeal before the Court of Appeal within ten days following notification, and two members of the Bar Council or the Fund Committee, depending on the jurisdiction, shall join the judging panel.
Official legal articles
replace · 1978-12-21: Open the official text
replace · 1971-01-25: Open the official text
replace · 1978-12-21: Open the official text
Think deeper
How does the law balance the right of the judiciary to prosecute crimes and search for evidence with the necessity of protecting clients' secrets in a lawyer's office, based on the role of the President of the Bar Association in these procedures?
Flashcards
When can a lawyer be held liable for a defamation or slander lawsuit due to their pleadings?
When they exceed the limits of defense.
Is the preventive detention of a lawyer permissible in a contempt lawsuit due to statements issued by them while practicing their profession?
Preventive detention is not permissible in this case.
What is the penalty imposed on someone who commits a crime against a lawyer because of their practice of the profession?
They are subject to the same penalty that is applied when that crime is committed against a judge.
When can a judicial decision to search a lawyer's office be executed?
After at least 24 hours have elapsed since depositing a copy of it at the Bar Association center with an invitation for the President of the Bar Association to attend.
What is the only case that allows the interrogation of a lawyer before notifying the President of the Bar Association?
The case of a crime caught in the act.
What happens if the Bar Council does not issue its decision regarding the authorization to prosecute within one month of notifying the President of the Bar Association?
The authorization to prosecute is considered implicitly granted.
What is the time limit for appealing the decisions of the Bar Council, and where is the appeal submitted?
The time limit is ten days following notification, and the appeal is submitted before the Court of Appeal.
Practice questions
A lawyer made statements in an oral pleading that the opponent considered slander, but the lawyer did not exceed the limits of defense. Can a slander lawsuit be filed against them?
The right of defense is sacred. No slander lawsuit entails upon the lawyer from pleadings unless they exceed defense limits (Article 74).
An incident of contempt occurred by a lawyer during a trial session. Is it permissible for a judge of that court to participate in hearing the contempt lawsuit filed against the lawyer?
It is not permissible for any judge of the court where the incident occurred to participate in hearing the contempt lawsuit (Article 75).
A lawyer was assaulted by someone because of a case he is handling. What is the penalty standard for the aggressor?
The perpetrator is punished with the same penalty applied when that crime is committed against a judge. This applies to any crime committed against a lawyer because of practicing the profession (Article 76).
A judicial decision was issued to seize funds located in a lawyer's office. When does the execution of this decision begin?
A decision to seize a lawyer's funds is executed only 24 hours after depositing a copy at the Bar Association and inviting its President (Article 77).
The Public Prosecution wanted to prosecute a lawyer for an act arising from the practice of the profession. It notified the President of the Bar Association with a written letter, and a full month elapsed without the Bar Council issuing any decision. What is the legal situation?
If one month elapses from notifying the President in writing without a Bar Council decision, the authorization is considered implicitly granted (Article 79).
Who is the competent authority to assess whether the act attributed to the lawyer arises from the profession or in the course of it?
The Bar Council is the authority that assesses whether the act attributed to the lawyer arises from the profession or in its course (Article 79).
Case problems
During a trial session, a lawyer presented an oral pleading that included phrases the opponent considered slander and defamation. The opponent filed a slander and defamation lawsuit against the lawyer and requested their preventive detention. A judge of the court where the incident occurred decided to hear this lawsuit. Discuss the legality of the preventive detention request, the legality of the judge hearing the lawsuit, and the lawyer's liability for their statements.
Model answer
First, regarding the lawyer's liability. The right of defense is sacred in law. The lawyer is not held liable nor sued for defamation or slander due to their oral pleadings unless they exceed the limits of defense (Article 74). Therefore, if the lawyer did not exceed the limits of defense, their liability is not established.
Second, regarding the preventive detention request. Preventive detention is not permissible in a defamation or slander lawsuit filed against a lawyer due to statements issued by them while practicing their profession (Article 75). Accordingly, the opponent's request is illegal.
Third, regarding the judge hearing the lawsuit. The law prohibits any judge of the court where the incident occurred from participating in hearing the lawsuit (Article 75). Therefore, the judge's decision to hear the lawsuit is contrary to the law, and they must be recused or replaced.
Self-grading rubric
The Public Prosecution suspected a lawyer's involvement in a crime arising from the practice of their profession. It sent a written letter to the President of the Bar Association requesting authorization to prosecute. 40 days passed and the Bar Council did not issue any decision. The Public Prosecution considered that the authorization had been granted, so it obtained a judicial decision to search the lawyer's office and proceeded immediately to execute it without notifying the Bar Association. Evaluate the legality of the Public Prosecution's procedures regarding the prosecution and regarding the search.
Model answer
First, regarding the prosecution. The decision to grant or refuse the authorization to prosecute must be issued within one month from the date of notifying the President of the Bar Association with a written letter (Article 79). Since the one-month time limit has elapsed and the decision was not issued, the authorization to prosecute is considered implicitly granted. Therefore, the Public Prosecution's procedure of considering the authorization granted is a legal procedure.
Second, regarding the office search. Any judicial decision to search a lawyer's office shall not be executed until at least 24 hours have elapsed since depositing a copy of it at the Bar Association center (Article 77). An invitation must be addressed to the President of the Bar Association to attend the proceedings. The Public Prosecution proceeding to execute the search immediately without depositing a copy and inviting the President is a void procedure and contrary to the law.