At the Anti-Corruption France C5 Paris conference on October 10 and 11, 2022, Capucine Lanta de Bérard, a partner at the law firm Soulez Larivière Avocats, interviewed Jean-François Bohnert, the Financial Public Prosecutor, three years after he took office as head of the PNF.

She asked him about five topics that currently shape economic and financial criminal justice:

🔹 An assessment of the PNF’s first three years of action
🔹 The rise of internal investigations: a tool for corporate accountability or a risk of “privatizing” criminal investigations? (against the backdrop of the Airbus case and its 30 million documents)
🔹 The effects of CJIPs and CRPCs on the prosecution of individuals who remain in the proceedings
🔹 The three-year limit on preliminary investigations, given that more than one-third of the PNF’s investigations last longer than four years
🔹 The new memorandum from the U.S. Department of Justice (DOJ): Is France perceived as a jurisdiction capable of conducting effective prosecutions?

Thank you to Jean-François Bohnert for the quality of this discussion and to C5 for organizing the event.

#Compliance #Anti-Corruption #PNF #CJIP #BusinessCriminalLaw #Justice

On February 10 and 11, 2022, the Criminal Law Commission of the International Union of Lawyers brought together French and Swiss attorneys in Geneva to discuss the topic: “Attorney-Client Privilege in the Context of Criminal Business Law.”

Aurélia Grignon represented the firm at the event as part of a panel titled “Attorney-Client Privilege: Selected Practical Aspects,” alongside three Geneva-based practitioners: Stéphane Grodecki (MERKT [&] associés), attorney, former Chief Prosecutor of the Geneva Public Prosecutor’s Office, and lecturer at the University of Geneva; Jean-Louis Collart (ATHENA), attorney and former President of the Geneva Bar Association; and Sylvain Savolainen (SAVOLAINEN Avocats).

Aurélia Grignon presented the French legal context, which is marked by a paradox:

Very broad confidentiality in theory. Article 66-5 of the 1971 Act covers, in all matters—whether advisory or defensive—consultations, correspondence, meeting notes, and case files.

A duty of confidentiality subject to criminal penalties for attorneys (Article 226-13 of the Penal Code).

But no true “right” to confidentiality vis-à-vis judicial authorities. Articles 56, 56-1, 76, and 97 of the Code of Criminal Procedure establish a balance between the protection of confidentiality and the effectiveness of prosecutions; however, the Criminal Chamber of the Court of Cassation’s interpretation of case law tends to establish that confidentiality is “unenforceable” against judicial authorities, particularly in criminal matters.

The seminar was held a few weeks after the adoption of Law No. 2021 -1729 of December 22, 2021, on confidence in the judicial system, which amended the preliminary article of the Code of Criminal Procedure to solemnly affirm that respect for the professional secrecy of the defense and legal counsel, as provided for in Article 66-5 of the 1971 Act, is guaranteed throughout criminal proceedings. It also amended the rules governing searches of a lawyer’s office or residence, effective as of March 1, 2022. However, this progress remains limited: attorney-client privilege yields to the imperatives of combating economic and financial crime, since the new Article 56-1-2 of the Code of Criminal Procedure provides for exceptions, particularly in cases of tax fraud and corruption.

The other speakers provided insights into Swiss law:

• Stéphane Grodecki outlined the distinction between a lawyer’s typical activities—which are covered by attorney-client privilege—and atypical activities. He emphasized that the protection of communications between the defendant and their defense counsel is absolute, but that it does not extend to the entirety of an internal investigation.
• Jean-Louis Collart addressed conflicts of interest and the prohibition on taking on new clients, as well as potential abuses of these rules.
• Sylvain Savolainen discussed the tension between attorney-client privilege and the justification of fee invoices when compensating the parties at the conclusion of criminal proceedings.

The firm is pleased to have been able to contribute to these Franco-Swiss discussions on a topic central to the practice of business criminal law.

More information is available on the UIA website: https://www.uianet.org/fr/evenements/le-secret-professionnel-a-lepreuve-du-droit-penal-des-affaires

The Paris Institute of Criminology and Criminal Law (ICP) organized a symposium on Friday, October 15, 2021, on the topic “Attorney-Client Privilege,” chaired by Pauline LE MONNIER DE GOUVILLE, associate professor of public law (Paris 2 Panthéon-Assas University) and Jean-Baptiste PERRIER, professor of private law and criminal sciences (Aix-Marseille University).

The symposium program is available at this link

Capucine Lanta de Bérard spoke during the roundtable discussion “The Risks to Attorney-Client Privilege: Multiple Perspectives,” alongside Christian Saint-Palais, Hervé Témime, Professor Didier Rebut, and Professor Haritimi Matsopulou:

• Attorney-Client Privilege and Offenses Committed by Attorneys
  Christian Saint-Palais, Esq., Leborgne - Saint-Palais Associés
• Attorney-client privilege in the face of searches, inspections, and seizures
  Capucine Lanta de Bérard, Esq., Member of the Paris Bar
• Attorney-Client Privilege in the Context of Wiretaps and Subpoenas
  Maître Hervé Temime, Attorney at the Paris Bar, and Didier Rebut, Professor at Paris 2 Panthéon-Assas University
• Concluding Remarks: Penalties for Violations of Attorney-Client Privilege
  Haritini Matsopoulou, Professor at Paris-Saclay University

In the wake of the COVID-19 health crisis, which had highlighted the importance of managing uncertainty, the Foundation for a Culture of Industrial Safety (Foncsi) and the Institute for a Culture of Industrial Safety (Icsi) posed a fundamental question to industry leaders: Is a paradigm shift needed in safety management?
The event on June 23, 2021, held at ENAC in Toulouse, brought together major industrial companies (TotalEnergies, SNCF, EDF, Airbus) and internationally renowned researchers to discuss the limitations of current strategies, alternative approaches based on resilience, and the obstacles to such a change.

Aurélia Grignon participated in the final panel discussion, which focused on resistance to change and the social acceptability of acknowledging the unpredictable and the absence of total control. Moderated by Benoît Journé, a professor at the University of Nantes and director of the RESOH Chair at IMT-Atlantique, the session also featured Jacques Repussard, former director general of the IRSN, and Pierre Verzat, chairman of the executive board of Systra.

The panelists discussed whether society—and judges in particular—were ready to consider an alternative approach to risk management beyond the ideal of total control. Aurélia Grignon shed light on several issues from the perspective of criminal justice:

🔹 The Evolution of Criminal Liability for Accidents. Are we moving toward more or fewer criminal prosecutions, and will the search for liability shift to other parties?

🔹 A Comparison of Legal Systems, between the civil law and common law systems.

🔹 Delivering justice in a complex world. How should we adjudicate when safety is no longer merely a matter of compliance with a set of standards, but also involves balancing other objectives and constraints (economic, environmental, social, and health-related)?

The firm is pleased to have had the opportunity to share its experience in criminal law related to industrial accidents and disasters during these international exchanges, and to have contributed to discussions on issues that have been at the heart of the firm’s concerns for many years.

Recent court cases have highlighted two challenges, neither of which is new:

• the difficult task of adjudication.
• the difficulty in understanding this task and how the justice system works.

Faced with human tragedies and the reactions they provoke, the justice system does not turn a deaf ear to these emotions, but it must, above all, apply the law.

Unfortunately, there are cases where applying the law does not adequately address the emotions stirred by the crime committed, and where citizens feel that justice has not been served.

Such a situation often reveals a shortcoming in the law that cannot always be remedied by judges’ interpretation of the statutes.

In other cases, it is the strictness of the law that can be a source of misunderstanding—when it punishes someone who, in the eyes of citizens, should not have been punished, or when it rules in favor of one litigant over another.

To contribute to this discussion, a webinar was held on Thursday, June 3, 2021, featuring the conference and panel discussion Justice in the Face of Emotion, with the support of the Law and Justice Research Mission and the participation of the Laboratory of Private Law and Criminal Sciences as well as the Institute of Penal Sciences and Criminology.

Capucine Lanta de Bérard, a partner at the firm, spoke at the event alongside Youssef Badr, Carine Denoit-Benteux, Olivia Dufour, Capucine Lanta de Bérard, Olivier Leurent, François Molins, Marie Nicolas, Jean-Baptiste Perrier, Carole-Anne Vaz-Fernandez, Vincent Vigneau, and Cécile Vigour.
 

Are prosecutors becoming the true masters of criminal procedure in Europe? That was the question posed by Fair Trials, an international organization dedicated to defending the right to a fair trial, during its webinar “Growing Prosecutorial Power in European Criminal Legal Systems,” held on March 4, 2021, and moderated by Laure Baudrihaye-Gérard, its Legal Director for Europe.

The panel featured three speakers. Marianne Wade, a professor of criminal law at the University of Birmingham, discussed the role of the prosecutor in various European systems and the challenges facing the future European Public Prosecutor’s Office. Jacqueline Hodgson, a professor of law at the University of Warwick, analyzed the increasingly managerial approach to criminal prosecution in France and England. Aurélia Grignon then offered a practical perspective: she demonstrated how these developments are manifesting in litigation involving the European arrest warrant and how the balance between the investigating judge and the public prosecutor’s office is shifting in France.

This presentation also provided an opportunity to revisit the issue of judicial independence within the French legal framework governing arrest warrants. The question of independence is most often raised in connection with the public prosecutor’s office, due to its organizational affiliation with the Ministry of Justice. It was from this perspective that the Court of Justice of the European Union examined the issue in its December 12, 2019, judgment (joined cases C-566/19 PPU and C-626/19 PPU). But the “independence” of the investigating judge also warrants examination from a more functional perspective. The investigating judge holds a role that Robert Badinter described as nearly impossible—”half Maigret, half Solomon”—serving as both investigator and judge. It is the investigating judge who decides, as information comes in, whether to issue the arrest warrants that give rise to European Arrest Warrants (EAWs), without a judge outside the case reviewing this decision, and while oversight by the investigating chamber is only possible once the person has been placed under investigation—that is, when the warrant has already taken effect.

The webinar, which was conducted in English, was followed by a Q&A session with the participants.

“When is a judicial authority not a judicial authority?” That was the question posed at the annual 36 Extradition seminar, held on November 27, 2019, at Gray’s Inn in London. Six months earlier, the Court of Justice of the European Union had ruled that German public prosecutors’ offices, which are subject to instructions from the Minister of Justice, could not issue European arrest warrants (OG and PI judgments of May 27, 2019). Three speakers from Germany, France, and the Netherlands analyzed the implications of this case law in their respective countries.

For France, beyond the issue of the independence of the public prosecutor’s office, Aurélia Grignon’s presentation highlighted two other distinctive features of the French system: the inability to challenge a European arrest warrant before the person is surrendered, and the question of the impartiality of the investigating judge, who issues most national arrest warrants.

A few days later, on December 12, 2019, the Court of Justice ruled specifically on the case involving the French public prosecutor’s office.

Last week in Aix-en-Provence, during an inaugural conference on Henri Leclerc, the Certificate in Criminal Practice—a one-of-a-kind program offered by the Institute of Criminal Sciences and Criminology and L’Atelier de Pratique Pénale—was launched to great success.

Capucine Lanta de Bérard joins L’Atelier’s wonderful team as a lecturer.

The Atelier’s description of the program:

"Criminal practice is, for the attorney, as exciting as it is demanding. Technically demanding, it now requires a high level of knowledge—both regarding procedural rules and substantive law—and a genuine ability to apply them in practice. Ethically demanding, it places greater demands than other fields, exposing practitioners to a higher risk of error and carelessness.

This subtle blend of knowledge, know-how, and professional conduct is not taught anywhere today.

Faced with this reality, and out of a deep love for criminal defense and all it represents, attorneys well-versed in this practice and its teaching—along with academics who have a thorough command of the subject and who lead training programs for attorneys—have decided, in partnership with the Institute of Criminal Sciences and Criminology at the Faculty of Law and Political Science of Aix-Marseille University, as well as with the Institute of Criminal Defense, to create a space entirely dedicated to teaching genuine criminal practice, where judges, experts, and other key figures in the criminal justice system have agreed to participate: the “Criminal Practice Workshop.”