Two cases concerning legal professional privilege (LPP) are going to the highest courts in Europe and the US respectively. Since the European case is going to the European Court of Human Rights (ECtHR), whose decisions cover the UK through our membership of the Council of Europe, I will begin with that one and give it more focus.
Although the ECtHR case was lodged last year, it was only notified to the French government over the summer. Notification is the first formal stage when a government is told of a case against it, and more information is sought by the court. It precedes any decision about admissibility or obviously about any violation of the European Convention on Human Rights.
For those who follow French politics closely, the facts will be familiar. It relates to the prosecution of former President Nicolas Sarkozy and his lawyer, Thierry Herzog, for bribery. It is known as the ‘wiretapping case’ in France, because phone calls between Mr Sarkozy and Mr Herzog were tapped way back in 2013-2014.
You can see where this is going in terms of LPP. There are three applications wrapped around a single set of facts: Sarkozy v. France (application no. 9143/25), Herzog v. France (application no. 11047/25) and Ordre des avocats au barreau de Paris (the Paris Bar) v. France (application no. 2416/25). The case concerns the use at trial of transcripts of conversations between a lawyer and his client, as well as lawyers’ phone records (detailed telephone records provided by telecommunications operators), and the use of the transcripts of those conversations against the applicant for the purposes of prosecution and conviction.
Mr Herzog relies on Article 6 (that the use of lawyer-client conversations and of the lawyer’s telephone records undermined the fairness of the trial) and Article 8 (that the necessity of the interference in LPP was not respected, since the lawyer-client conversations were not individually reviewed for involvement in an offence, thereby depriving him of the safeguards associated with LPP). You can read all the gory details of the to-and-fro between the parties in French in the full notification.
The court requested the following further information at this stage: Have the merits of the criminal charge against the applicant been examined fairly, as required by Article 6? Has there been a violation of Article 8 due to the use of the transcripts against the applicant for the purposes of prosecution and conviction? Has there been a violation of Articles 6 and 8 as a result of the requisitions and the use of phone records in the criminal proceedings that led to the convictions?
The fact that the Paris Bar has intervened with a separate application shows that French lawyers are concerned. We know – and presumably the Paris Bar knows – that LPP cannot arise where a lawyer's assistance has been sought to further a crime or equivalent conduct. However, not being privy to the Paris Bar’s detailed application, I guess clarification is sought as to whether the protection of LPP should not require higher standards in terms of assessing each intercept carefully, since a conversation might contain elements which deserve protection, and also in terms of Europe-wide standards on safeguards, such as prior judicial authorisation, case-by-case assessment, and the possibility of subsequently excluding communications that do not clearly reveal a separate offence.
The case in the US is very different. The American Bar Association (ABA) has filed an amicus brief with the U.S. Supreme Court urging it to grant certiorari in the case of Anibowei v Blanche to decide whether the Fourth Amendment permits border agents to search the contents of a traveller’s mobile phone without a warrant.
George Anibowei, the plaintiff, is a naturalised US citizen and an attorney who represents foreign clients in proceedings against the United States. He is a frequent international traveller whose mobile phones have been searched without warrant upon re-entry to the United States on several occasions. Each search has taken between two and five hours, resulting in delays and missed flights.
The ABA says that warrantless border searches threaten the duty of confidentiality and attorney-client privilege, with the potential to expose significant amounts of confidential and privileged information to third parties.
The ABA has identified measures that legal professionals can take to navigate their ethical obligations during a border search, such as travelling with an inexpensive phone scrubbed of any confidential information. But this is burdensome and complicates the lawyer’s ability to work while abroad. In addition, the legal split among the different judicial circuits in the US over the question means that a lawyer’s obligations differ depending on which jurisdiction is used to enter the US.
Many solicitors travel to the US for work, and so the eventual outcome of this case will impact their decision on what kind of phone to take with them.
Jonathan Goldsmith is Law Society Council member for EU & International, chair of the Law Society’s Policy & Regulatory Affairs Committee and a member of its board. All views expressed are personal and are not made in his capacity as a Law Society Council member, nor on behalf of the Law Society
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