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Enquêtes internes et secret professionnel de l’avocat

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Published in Revue suisse de droit des affaires et du marché financier. 2019, vol. 2, p. 114-125
Abstract The Federal Court recently rendered two decisions on the issue of the protection of the lawyer’s professional secrecy within the context of internal inquiries. These decisions represent an important step, since there were contradictory opinions in legal writings on the issue of whether lawyers’ participation in internal inquiries should be regarded as a typical activity, and consequently covered by the secrecy or not. Several decades ago, case law laid down the principle according to which the secrecy applied only to lawyers’ typical activities, i.e. judicial activities and legal advice, but not to commercial ones such as assets management, direction of companies, etc. The particularities of these cases lay in the fact that they were related to criminal suspicions of money laundering within the bank. Resting on the fact that financial intermediaries have own obligations according to the Federal Act on Combating Money Laundering and Terrorist Financing, that they cannot transfer to third parties, and the obligation to document their performance at the attention of criminal and surveillance authorities, the Federal Court laid down that banks are not allowed to substitute lawyers to themselves in order to avail themselves of their secrecy to escape from their own duties. Such a scheme would be tantamount to an abuse of rights. The present contribution analyses the pertinence of this solution and insists on the fact that it must be strictly limited to actual abuses of rights, so as not to unduly limit the extent of the professional secrecy.
Keywords Secret, enquêtes internes, saisie, procédure pénale, blanchiment d'argent
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CHAPPUIS, Benoit. Enquêtes internes et secret professionnel de l’avocat. In: Revue suisse de droit des affaires et du marché financier, 2019, vol. 2, p. 114-125. https://archive-ouverte.unige.ch/unige:123466

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Deposited on : 2019-09-20

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