Without the certainty of confidentiality there can be no trust. The professional secrecy is therefore for us a primary and fundamental right and duty: It is both an ethical and operating principle as well as a deontological obligation provided for by law and particular to our profession which is strictly regulated.
The rules governing the professional consultancy impose on us a strict duty to observe confidentiality and confer on us a right, called privilege, to preserve this confidentiality under all circumstances and with regard to any third party, including the judicial authorities. The sensitive information communicated to us by our clients are thus called “inside information” – besides, they must be identified as such in all correspondence – and cannot be disclosed to third parties.
In particular, we cannot be compelled by any court of justice or any administrative body to supply information on our clients and the content of the dossiers they entrust to us.
Disciplinary, civil and even criminal sanctions are provided for by law where offences are committed.
The privilege and duty of confidentiality serve as an incentive for the clients to speak frankly of their cases, thus providing us with the means to ensure, as best as possible, their interests.
The profession of Patent and Trademark Attorneys is regulated in France by the Intellectual Property Code which compels us to observe a strict duty of confidentiality and to adhere to a strict code professional ethics excluding in particular the plurality of professional activities :
“Article L422-11 - In any matter and for all the services mentioned under Article L. 422-1, the industrial property attorney shall observe professional secrecy. Consultations addressed or intended for customers, professional correspondences exchanged with customers, fellow-members or attorneys-at-law, notes of meetings and, more generally, all documents of the file shall be subject to professional secrecy.
Article L422-12 - The profession of industrial property attorney is incompatible :
1° With any commercial activity, whether it is carried out by oneself or through someone else ;
2° With one's capacity as partner in a general partnership, active partner in a limited partnership or in a limited partnership with a share capital, manager of a private limited company, chairman of the board, member of the directory, Director Generator or assistant Director General of a public limited company, as chairman or manager of a simplified joint stock company, as manager of a civil law partnership, unless the object of these companies/partnerships is to carry out the profession of an industrial property attorney or the management of related professional interests or family interests ;
3° With the membership in a supervisory board or a Board of Directors of a commercial company, when the industrial property attorney has been professional for less than seven years or he has not obtained beforehand an exemption under the conditions provided for under a “Conseil d'Etat” decree.
Article L422-13 - The profession of industrial property attorney shall be incompatible with any other profession, subject to special laws or regulations. It shall however be compatible with teaching, as well as with functions of an arbitrator, a mediator, a conciliator or a legal expert.”
Conflict of interests. Jacobacci Coralis Harle abides scrupulously by the rules to avoid conflicts of interests in its missions of representation of its various clients.
There is a conflict of interests where the attorney who, on the day on which a case or a dossier is submitted to him or her, has an obligation to fully and fairly inform his or her client, cannot undertake this mission without compromising, either by the analysis of the situation presented or by the use of the legal means envisaged, the interests of one or more parties. In such circumstances, the attorney is not entitled to represent the two clients whose interests conflict.
Article 155 of Decree dated 17 November 1991 stipulates :
“a lawyer may not advise, represent or act on behalf of two or more clients in the same matter if there is a conflict between the interests of those clients, or, except as otherwise agreed by the parties, if there is a significant risk of such conflict.”
Article R 422-54 of the Intellectual property Code stipulates :
“the Industrial Property Attorney (…) must refrain, in a same case, from giving professional advice, assisting or representing clients with opposing interests; he or she must also refrain from acting for a new client if there is a risk of a breach of confidence entrusted to the attorney by a former client.”