Search and seizure of a lawyer's premises
The protection of lawyers' professional secrecy requires a strict framework for the searches and seizures. Particularly when digital data is involved.
The Court of Cassation recently clarified the limits and conditions of these measures. This is to guarantee the rights of defence.
In this case, a lawyer was implicated in a preliminary investigation. This led to a search of his chambers. The search resulted in the seizure of his mobile phone, the contents of which were transferred to a USB stick.
The representative of the President of the Bar challenged the seizure, but after an expert examination to extract from the contents of the telephone the items corresponding to a list of three hundred and thirty keywords, the liberty and custody judge ordered that the items thus selected be added to the proceedings.
This decision was confirmed by the president of the investigating chamber. The latter's order was subsequently quashed by the Cour de cassation. The Court referred the case and the parties back to the Court of Appeal.
In the meantime, the examining magistrate has issued a letter rogatory for the purpose of exploiting the seized items and has indicted the lawyer.
Before the appeal court, the legality of the method used to select the items seized by key words found in the mobile phone was debated, with the plaintiff taking the view that it is up to the liberty and custody judge and then the president of the investigating chamber to verify the proportional nature of the seizure made, with regard to the scope of the information on the one hand, and the need to protect professional secrecy and the interests of clients not concerned by this information on the other.
His claim was dismissed by the lower courts.
Solution adopted by the Cour de cassation (Search and seizure of a lawyer's premises) :
Referred back to again, the High Court found that the contested order rejected the plea of irregularity of the keyword seizure. It stated that :
-This was carried out selectively and not in full, with the assistance of an expert,
-and that the numerous keywords used were strictly chosen in direct connection with the lawyer's professional activity and the offences targeted.
The judge also emphasised that it was the lawyer's responsibility to report items unrelated to the offences for verification, which he did not do, and also pointed out that the assessment of the proportionality of the seizure was a matter for the court.article 173 of the code of criminal procedureThis means that it is not within the jurisdiction of the President of the Investigating Chamber ruling on the basis of Article 56-1.
Consequently, in so ruling, the President of the Examining Chamber did not disregard any legal provision.
Cass. crim., 10 December 2024, no.24-82.350
During a search of a lawyer's premises, the seizure of documents or digital data is strictly regulated in order to protect professional secrecy.
Under theArticle 56-1 of the Code of Criminal ProcedureThe President of the Bar or his delegate must be present. In this way, he can oppose the seizure of items covered by this secrecy.
However, the Court of Cassation points out that when data is extracted using key words, the selection must be rigorous and directly related to the facts in question. In addition, they must be carefully selected and directly related to the facts in question.
It is also the lawyer's responsibility to point out elements that are not related to the investigation.
The review of the proportionality of this seizure is the exclusive responsibility of the liberty and custody judge.
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