In February 2026, France adopted the Law n°2026‑122 of 23 February 2026, which introduces a new statutory confidentiality regime for written legal consultations prepared by in‑house counsel. The mechanism is codified in Article 58‑1 of the Law of 31 December 1971 and was reviewed and validated by the Constitutional Council in its Decision n°2026‑900 DC of 18 February 2026.
For foreign practitioners accustomed to the structures of Legal Professional Privilege in the United Kingdom or attorney–client privilege in other common‑law countries, it is essential to understand that France has not created an equivalent privilege for in‑house lawyers. Instead, it has crafted a limited regime, distinct both from the secret professionnel (professional secrecy) applicable to French attorneys and from the broader UK concept of privilege.
Scope and conditions
The new protection applies exclusively to written legal consultations drafted by an in‑house lawyer or a member of their team acting under their authority. The drafter must hold a master’s degree in law or an equivalent qualification and must have completed a specific ethics training. The consultation must contain a personalised legal analysis based on the interpretation or application of a rule of law, and it must be addressed only to the company’s legal representative, governing bodies, or equivalent entities within the same corporate group.
Additionally, the reform imposes strict formal requirements. Each protected consultation must bear the explicit label “confidentiel – consultation juridique – juriste d’entreprise” and must be archived in a way that ensures proper identification and traceability.
The confidentiality created by Article 58‑1 is enforceable only in civil, commercial, and administrative matters. It cannot be invoked in criminal or tax proceedings, where authorities may freely access such documents. It is also expressly inapplicable against EU authorities exercising investigative powers, as clarified by the Constitutional Council in its decision dated 18 February 2026.
Limits
In French civil and commercial litigation, judges may order what are known as evidentiary measures (mesures d’instruction) which are court‑supervised evidence‑gathering measures carried out before the court rules on the merits. These measures can involve the court mandating a French judicial enforcement officer (commissaire de justice) to visit business premises to collect documents, conduct factual inspections, or secure evidence that might otherwise be lost. When a company asserts that a document encountered during the execution of such a measure is a confidential in‑house legal consultation within the meaning of Article 58‑1, the enforcement officer may not examine it. Instead, the document must be placed immediately under seal and recorded in a report. Only if the opposing party contests the claim of confidentiality may the matter be brought before the judge that ordered the measure, who then alone is empowered to open the seal and determine whether the statutory requirements for confidentiality are met or whether the protection must be lifted.
Criminal sanctions for fraudulent confidentiality labelling
The Constitutional Council explicitly noted that using the confidentiality label improperly is punishable under criminal law.
Unlike the initial bill, the law as finally adopted does not introduce a specific criminal offence sanctioning the improper use of the confidentiality label applicable to in‑house legal consultations. The potential penal consequences derive indirectly from the legislative structure of the 1971 Law: the newly amended Article 66‑2 refers to Article 72, which in turn refers to Article 433‑17 of the French Criminal Code which criminalises the use, without entitlement, of a title attached to a profession regulated by a public authority, or of an official diploma, or of a designation whose conditions of attribution are determined by a public authority.
Accordingly, companies cannot safely rely on mere labelling to shield documents from disclosure. The protection applies only where all statutory conditions are genuinely satisfied, and abusive or strategic mischaracterisation of documents continues to carry legal risk, even in the absence of a specific offence created by the 2026 reform.
Lawyers’ professional secrecy in France: a distinct and stronger regime
To understand the limited nature of the new protection, it is necessary to contrast it with the secret professionnel de l’avocat (professional secrecy), which applies to members of the French bar. This secrecy covers all aspects of an attorney’s professional practice, including advice, litigation, negotiations, and correspondence. It attaches automatically, without any labelling, and is enforceable against all public authorities, including tax and criminal bodies, subject only to narrow exceptions related to the lawyer’s own participation in an offence.
France’s 2026 reform marks a significant development for corporate legal departments by offering, for the first time, a legally recognised form of confidentiality for in‑house counsel. However, this protection remains strictly circumscribed. It is conditioned on formal requirements, limited in scope, and subject to judicial control. It is not equivalent to the secret professionnel of French attorneys, nor does it approach the breadth of UK Legal Professional Privilege.
In addition, the French legislator has introduced a powerful deterrent against misuse: the fraudulent use of the confidentiality label is a criminal offence, ensuring that companies do not attempt to shield documents improperly. For international practitioners, the takeaway is clear: French in‑house confidentiality is a useful but fragile tool, effective only within its narrow statutory boundaries and fundamentally distinct from the protections available under common‑law privilege doctrines.
