Privileged In-House Counsel Legal Opinions: What Implications for Companies?

The legal privilege of in-house counsel’s legal opinions was introduced by Law No. 2026-122 of 23 February 2026, following its validation by the Constitutional Council on February 18, 2026 (Decision No. 2026-900 DC).

Henceforth, under certain conditions, in-house legal opinions drafted by in-house counsel may be exempt from seizure and disclosure in civil, commercial, and administrative proceedings.

Presented as a tool for competitiveness and legal certainty, this new regime partially brings France in line with European standards, while leaving significant gray areas intact.

1.     THE END OF THE FRENCH EXCEPTION REGARDING THE ABSENCE OF PRIVILEGE

For decades, France stood out as an exception among its European neighbors: while many European Union member states granted legal privilege to work products between in-house lawyers and their employers, French law remained silent on this point.

Internal opinions from legal departments could thus be freely accessed by authorities, particularly foreign ones, even when they concerned highly sensitive matters (competition investigations, compliance, internal investigations, etc.).

After an initial reform attempt was struck down by the Constitutional Council in 2023, two bills were introduced. The bill sponsored by Representative Jean Terlier ultimately led to the adoption of the law of February 23, 2026, without substantial amendments by the Senate.

The resulting legislation establishes a specific confidentiality regime, presented as a tool for competitiveness and legal certainty, but subject to strict conditions.

2.     The new confidentiality regime for in-house counsel’s opinions

The adopted text inserts a new Article 58-1 into the Act of December 31, 1971, on the reform of certain judicial and legal professions, establishing an autonomous “confidentiality” regime for opinions drafted by in-house counsel.

However, legal privilege does not automatically apply to all documents produced by legal departments: it is subject to five cumulative conditions, relating to the professional’s qualifications, the nature of the opinion, and the manner in which it is formalized:

• The legal professional must hold a master’s degree in law (five years of higher education), or a bachelor’s degree (four years of higher education) if they can demonstrate eight years of practice in a legal department;
• The legal professional must have completed training in ethical rules, the standards for which will be defined by decree;
• The opinion must be intended exclusively for the management or the administrative or supervisory bodies of the company, its group, or its subsidiaries;
• It must concern the provision of an opinion or advice based on the application of a rule of law and not on purely strategic, commercial, or communication considerations;
• It must bear the notation “privileged – legal opinion – in-house counsel,” identify its author, and be filed separately.

When these conditions are met, the opinion may not, in principle, be subject to seizure or an obligation to disclose it to a third party, including a French or foreign administrative authority, in the context of civil, commercial, or administrative proceedings. It remains, however, freely communicable by the company, which may waive privilege if it wishes to produce the opinion in support of its defense or in the context of negotiations.

Following a referral by more than sixty members of parliament, the Constitutional Council upheld the provision, subject to several interpretive reservations that define its practical limits and strengthen the possibilities for challenging and waiving privilege:

• In administrative matters: the law already allowed, during an inspection, for the administrative authority to have documents claimed to be confidential placed under seal, and then to refer the matter to the judge overseeing liberty and detention to challenge the applicability of privilege or request its lifting when the purpose of the inspection is to facilitate or encourage the commission of violations subject to sanctions. The Council specifies that this mechanism must also be available when the authority exercises its right to request information, even outside the context of an inspection. Furthermore, privilege may not prevent the exercise of powers granted to an administrative authority by an organic law;
• In civil and commercial matters: when an investigative measure is ordered and privilege is invoked, the matter may be referred to the presiding judge to challenge its validity. The Council adds that this presiding judge must also be able to lift privilege when the purpose of the opinion is to facilitate or encourage the commission of fraud against the law or the rights of a third party, and not merely when the legal conditions for privilege are not met.

These reservations establish a central role for the judge in defining the scope of protection and foreshadow significant litigation, particularly in the context of investigations by regulatory authorities and complex civil or commercial disputes.

3.    The blind spots of the new regime

The law expressly excludes the enforceability of privilege in criminal matters, as well as in tax matters.

Opinions drafted by in-house counsel may thus be sought out or requested in the context of preliminary investigations, judicial inquiries, or judicial investigations, as well as in customs or tax proceedings. Consequently, the same legal opinion could be protected in commercial litigation or before an administrative authority, yet subject to disclosure in a criminal or tax investigation concerning the same facts. Such a dichotomy may raise issues in areas where an administrative authority and a criminal court have overlapping jurisdiction, such as in cases of market abuse.

In any event, in practice, it will likely be necessary to significantly limit the enforceability of such privilege before administrative authorities. Taking the banking and financial sector as an example, supervisory authorities (AMF and ACPR) already have the ability to request the disclosure of reports issued by the so-called ongoing and periodic control functions of regulated institutions, the very purpose of which is to audit compliance with regulations and internal procedures.

However, these reports, prepared by the institutions’ compliance teams rather than by legal counsel, will not, in principle, be subject to privilege and may therefore continue to be used. The investigative and supervisory capacity of these authorities will thus be minimally impacted by this new provision.

Furthermore, the law specifies that privilege is recognized “subject to the supervisory powers of the European Union authorities.” This reservation is fully in line with the case law of the Court of Justice of the European Union (CJEU) on competition matters. Consequently, in-house counsel’s opinions, even if in compliance with Article 58-1 of the 1971 Act, will not receive special protection during inspections or requests for the production of documents by the European Commission or other EU institutions.

4.     Some practical recommendations

If properly managed, this new mechanism could become a tool for securing sensitive information. If mishandled, however, it could instead create additional vulnerabilities.

Several recommendations could therefore be made to mitigate these risks:

• Formally identify the legal professionals who meet the requirements for qualifications and experience;
• Establish an internal confidentiality policy, in particular by providing templates for memos clearly identified as opinions;
• Ensure that opinions classified as privileged clearly set forth the applicable legal rules and their interpretation and distinctly identify legal options and risks;
• Establish procedures for the approval and distribution of legal opinions;
• Create dedicated spaces for archiving privileged opinions and establish traceable access rules;

Anticipate procedures for managing sealed documents in the event of a search or investigative measure.