By granting legal privilege confidentiality to advice prepared by in-house lawyers, French law finally recognises the key role played by in-house lawyers in corporate internal risk management.

Background

On 23 February 2026, the French legislature adopted a long-anticipated new law establishing legal privilege protection for consultations drafted by in-house lawyers (Law No. 2026-122 of 23 February 2026). The adoption marks the end of a lengthy public debate and, by shifting away from a regime that protected only communications with external counsel, aligns France with similar reforms undertaken in several neighbouring EU countries.

This reform is likely to have important ramifications for the protection of companies' internal risk assessments and decision-making process. 

The recent Doctolib case, in which the French Competition Authority (FCA) imposed a fine of EUR 4.7 million for an abuse of a dominant position, is a notable example showcasing in-house advisory work being seized by a competition authority and used as evidence against the company. Amongst the documents seized and retained as proof of the conduct, the FCA referred to internal email exchanges in which the General Counsel warned the CEO of the antitrust risks linked to the practice that the FCA subsequently investigated. According to the FCA, these emails proved that Doctolib was aware of the unlawfulness of its conduct. This approach inevitably raised concerns, as the genuine attempt by an in-house lawyer to warn her senior management of a legal risk was ultimately used against the company.

Conditions for the confidentiality benefit

Several conditions must be met for the legal privilege protection to be granted to in-house advisory work:

• Content: the legal consultation must contain an opinion or advice based on the application of legal provisions. It must explicitly be labelled "confidentiel – consultation juridique – juriste d'entreprise" ("Confidential - Legal Consultation - In-House Legal Counsel").
• Author: the advice must be drafted by an in-house lawyer, or a member of the team acting under the lawyer's supervision. The author must hold a master's degree in law (or equivalent) and provide proof of ethics training. These conditions will be further specified by a forthcoming ministerial order.
• Recipient: the consultation must be intended exclusively for the legal representative or the governing bodies of the company employing the in-house lawyers, or for a closely related entity. All versions of a consultation are covered (including drafts).
• Filing: the consultation must be filed separately in the company's records. 

Exclusions to the confidentiality regime

A significant limitation is that the confidentiality does not apply to documents seized in the context of: (i) criminal proceedings, (ii) tax proceedings, or (iii) proceedings conducted by the EU authorities, or by a national authority acting through a delegation of power from an EU authority. As a result, confidentiality cannot be opposed to procedures conducted by the EU Commission, or by the FCA acting on the Commission's behalf, including in antitrust or merger control investigations.

In addition, documents covered by fraudulent confidentiality claims cannot benefit from legal privilege and the authors of such claims are subject to criminal penalties.

Consequences of the confidentiality

The confidentiality attached to legal consultations is enforceable in all civil, commercial, and administrative proceedings. Protected legal opinions may not be seized or disclosed, nor may they be subject to any obligation of disclosure to third parties, including French or foreign administrative authorities. Such opinions may not be asserted against the company. The company may, however, choose to waive the confidentiality at its discretion.

Challenging the confidential nature of a consultation?

The confidential status of a consultation can be challenged before the court if it pursues the objective of facilitating or encouraging fraud against the law or third-party rights. Courts also have the power to waive the confidentiality attached to consultations, in the context of a dawn raid, or in the context of an obligation on the company to communicate documents to a regulatory authority. 

Practical guidance

While the additional protection is welcome news for in-house lawyers in France, it remains narrower than the broader in-house legal privilege enjoyed in jurisdictions such as the US. In practice, disputes are likely to arise where documents combine legal analysis with strategic or commercial considerations. A ministerial order is set to further specify the details of the law and its entry into force.