1is Last January, Michel Guichard, associate lawyer at Taj Deloitte, took up his post at the head of the Hauts-de-Seine bar for the period 2021-2022. He gives us his opinion on the Chancellery’s preliminary draft on corporate lawyers.
The editorial staff: What do you think of the project establishing the lawyer in business?
Michel Guichard: I work in a business firm (Taj Deloitte) and my clients are potentially the companies concerned by this project. I also belong to the first business bar in France, where 2/3 of the lawyers are business lawyers. Finally, the Hauts-de-Seine bar is located in a department where there are large CAC 40 groups and numerous subsidiaries of foreign groups. I cannot therefore personally, as President of the Bar, reject this proposal without analyzing it.
Writing: Do you think the Chancellery’s “pre-project” provides satisfactory guarantees?
Michel Guichard: The law on corporate lawyers is very much in line with the Gauvain report. My first analysis is that we are in the presence of a hybrid employee lawyer with 5 years of experimentation. Can we really say that a period of 5 years is an experiment? We can doubt it.
However, I noticed something very strange. The litigation of the contract of the salaried company lawyer would not be the responsibility of the President of the Bar but of the Labor Court. However, the litigation of the employment contract of the salaried lawyer falls to the President of the Bar in first instance. Will the employee lawyer therefore be independent? This is the main question raised by this text. Independence is one of the 5 principles contained in the oath of the legal profession. It must be respected.
A lawyer can have the status of employee and be independent. This dates back to 1991. I myself was an employee in a firm and I have always considered that I was independent. The debate on the independence of the salaried lawyer is therefore a rearguard fight.
On the other hand, one can express doubts when the lawyer in company makes legal opinions. He will still depend closely on his group. Can the employee lawyer of a company be independent? In order to guarantee his independence, it could be envisaged that the company lawyer becomes a protected person within the company.
Editorial staff: Would you be in favor of an experiment within your bar?
Michel Guichard: To date, there has been no official statement regarding the fact that the experimentation would take place in the Paris and Hauts-de-Seine bars. It is a decision that belongs to the councils of the order and the bill provides that the Minister of Justice will decide in the end.
We will do a first analysis and open a discussion this week within the council of the Hauts-de-Seine bar order. We will then create a commission with the law firms to discuss it. The level of knowledge on this text is not optimum.
I would also like to organize a conference in order to open the debate with all those concerned, as was done by our bar on the occasion of the Gauvain report.
It is not an easy subject because the first reactions of the profession are quite negative. Moreover, the Perben report had not approved it. The CNB’s position is on hold and the unions appear divided. If the Paris bar accepts the experiment, can the Hauts-de-Seine bar accept to see the legal departments of large groups leave its bar to go to Paris? It must be taken into account.
We have time to analyze the project. The text is expected to be considered by Parliament in May, so there is no absolute urgency. We must take some height on this subject before deciding.
Writing: Do you share the objectives of this text?
Michel Guichard: I understand the objective of giving weight to legal matters in France. In the United States, this is extremely important. For example, we do not have a meeting on major subjects in the company without general counsel. In France, a legal department has less weight in a group. A study should be carried out on the legal privilege in other countries to analyze good practices in this area.
If the lawyer in business allows the elevation of the field of law in the company, I understand it. This will not be done, in my opinion, to the detriment of lawyers. A legal department will not be able to handle all cases and will always need the advice of lawyers who have experience on their subjects. Furthermore, the fact that the corporate lawyer cannot plead shows that lawyers will be able to continue working for companies with corporate lawyers. Also if the law can take a more important place in the company, all the medium of the law will benefit from it, the lawyers included.
Interview by Leslie Brassac
Interview actuel-direction-juridique.fr, The daily life of the legal director
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