Professional Secrecy
Explanation
A lawyer is absolutely bound to keep professional secrecy [le secret professionnel]. He may not disclose any secret entrusted to him or learned through the practice of his profession. This prohibition remains in effect and continues even after the termination of his mandate [le mandat].
The law prohibits a lawyer from testifying against his client. This strict prohibition applies to any lawsuit in which the lawyer currently holds a mandate, or in which he previously held a mandate.
The law regulates the lawyer's relationship with his colleagues when accepting mandates. If a lawyer is offered a lawsuit in which one of his colleagues was previously an agent, he must refuse to accept the mandate. He cannot accept it unless his colleague permits him to do so, or if he obtains permission from the president of the bar association [le bâtonnier].
A lawyer is not entitled to accept a mandate in a lawsuit against a colleague or to file a personal lawsuit against him before obtaining permission from the president of the bar association. The request for permission is submitted to the president of the bar association, who attempts to reconcile the disputing parties. The president decides on the request within a period not exceeding thirty days from the date of its registration. If the period expires without a decision, the permission is considered automatically granted.
The parties have the right to object to the decision of the president of the bar association, whether explicit or implicit, before the bar council [le conseil de l'ordre] within ten days. The bar council must decide on the objection within thirty days, otherwise the objection is considered dismissed. The council's decision is subject to appeal in accordance with legal procedures.
There is an important exception regarding precautionary measures [les mesures conservatoires]. A lawyer may, exceptionally, accept a mandate in civil lawsuits to take precautionary measures on funds to preserve rights at risk of being lost before obtaining permission from the president of the bar association. It is required in this case that he submits the request for permission within a period not exceeding ten days from the date the measures were taken.
Official legal articles
replace · 1991-02-21: Open the official text
Think deeper
Why did the law allow a lawyer to take precautionary measures against a colleague before obtaining permission from the president of the bar association, and how does this exception relate to the primary goal of requesting prior permission?
Flashcards
May a lawyer disclose a professional secret after the termination of his mandate?
A lawyer may not disclose any secret entrusted to him or learned through his profession, even after the termination of his mandate.
Is a lawyer entitled to testify against his client?
He may not testify against his client in a lawsuit in which he currently holds or previously held a mandate.
What must a lawyer do if offered a lawsuit in which his colleague was an agent?
He must refuse to accept the mandate, unless his colleague permits him to do so, or he obtains permission from the president of the bar association.
What is the time limit given to the president of the bar association to decide on a request for permission to sue a colleague?
A period not exceeding thirty days from the date the request is registered in the registry of the bar association.
What happens if the thirty-day period expires without the president of the bar association deciding on the request for permission to sue a colleague?
The permission is considered automatically granted (an implicit decision).
What is the time limit to object to the decision of the president of the bar association regarding suing a colleague?
Ten days from the date of notification of the explicit decision or from the date of issuance of the implicit decision.
When may a lawyer accept a mandate against a colleague before obtaining permission from the president of the bar association?
Exceptionally, in civil lawsuits to take precautionary measures on funds to preserve rights at risk of being lost.
What is the time limit for submitting a request for permission after taking precautionary measures against a colleague?
Within a period not exceeding ten days from the date such measures were taken.
Practice questions
When does a lawyer's obligation to keep professional secrecy end?
A lawyer may not disclose a secret entrusted to him even after the termination of his mandate (Article 92).
A lawyer was asked to testify against his client in a lawsuit in which he was previously an agent. Is he allowed to do so?
The law prohibits a lawyer from testifying against his client in a lawsuit in which he was previously an agent (Article 92).
A lawyer was offered a mandate in a lawsuit in which his colleague was an agent. What is the condition for accepting it?
A lawyer must refuse the mandate unless his colleague permits it or he obtains permission from the president of the bar association (Article 93).
What is the time limit given to the bar council to decide on an objection to the decision of the president of the bar association regarding suing a colleague?
The law requires the bar council to decide on the objection within thirty days from the date of its receipt (Article 94).
What happens if the bar council does not decide on the objection within the 30-day limit?
If the bar council does not decide on the objection within thirty days, the objection is considered dismissed (Article 94).
A lawyer took a precautionary measure against a colleague to preserve rights at risk of being lost. When must he submit the request for permission to the president of the bar association?
The measure may be taken before permission provided the request is submitted within ten days (Article 94).
Case problems
A lawyer held a mandate in a civil lawsuit. After a while, his client's opponent asked him to testify against the client in the same lawsuit, claiming that the lawyer knows crucial details. The lawyer agreed to testify on the pretext that his mandate had terminated and he was dismissed from the case. Is the lawyer's action legal?
Model answer
The lawyer's action is illegal.
A lawyer may not testify against his client in a lawsuit in which he currently holds or previously held a mandate (Article 92).
The law prohibits the disclosure of any secret learned through the profession, even after the termination of the mandate.
Therefore, the termination of the mandate does not justify testifying against the client.
Self-grading rubric
A lawyer wanted to file a personal lawsuit against a colleague. He submitted a request for permission to the president of the bar association and it was registered in the registry of the bar association. Forty days passed without the president issuing any decision. The lawyer considered the permission granted and initiated the lawsuit. The colleague objected before the bar council five days after the expiration of the thirty-day period. Is the lawyer entitled to initiate the lawsuit, and is the colleague's objection formally acceptable?
Model answer
Yes, the lawyer is entitled to initiate the lawsuit.
If the thirty-day period expires without a decision on the request, the permission is considered automatically granted as an implicit decision (Article 94).
As for the colleague's objection, it is formally acceptable.
The parties have the right to object to the implicit decision before the bar council within ten days of its issuance (Article 94).
Since the colleague objected after five days, he is within the legal time limit.
Self-grading rubric
A lawyer learned that his client's funds are at risk of being lost due to actions taken by another lawyer (a colleague). The lawyer immediately placed a precautionary attachment on the colleague's funds in a civil lawsuit without obtaining prior permission from the president of the bar association. 15 days after placing the attachment, he submitted the request for permission to the president of the bar association. Are the procedures taken by the lawyer correct?
Model answer
The procedures taken by the lawyer are not entirely correct.
A lawyer may exceptionally take precautionary measures to preserve rights at risk of being lost before obtaining the permission of the president of the bar association (Article 94).
Therefore, placing the attachment without prior permission is a correct procedure.
However, the law requires submitting the request for permission within a period not exceeding ten days from taking the measure.
Since the lawyer submitted the request after fifteen days, he violated this legal condition.