Confidentiality of meetings between parties and lawyers: rules to know

Negotiation meeting with lawyers: are the discussions confidential?

The confidentiality of a meeting between lawyers and parties is not automatic. The mere presence of counsel is not sufficient, in itself, to prevent the subsequent use of statements, documents, or proposals exchanged during the meeting.

This question is crucial when a company meets with a contracting party, partner, supplier, employee, or adversary to seek an amicable solution to a dispute. Information communicated too hastily or a proposal made without due care can later be used as evidence in court.

Before any negotiation meeting, it is therefore necessary to identify the exchanges covered by professional secrecy, those that fall under confidentiality between lawyers and those that must be protected by a specific agreement.

What is the difference between professional secrecy and confidentiality?

Lawyer-client privilege and the confidentiality of communications between lawyers are two complementary, but distinct, protections.

The first primarily protects the relationship between a lawyer and their client. The second governs communications between lawyers.

Lawyer's professional secrecy

Article66-5 of the law of December 31, 1971 provides that consultations addressed by a lawyer to his client, correspondence exchanged between them, interview notes and, more generally, documents in the file are covered by professional secrecy.

The lawyer therefore cannot freely reveal the information entrusted to him in the course of his duties.

This protection allows the client to communicate with their advisor, to explain the strengths and weaknesses of their situation and to prepare a negotiation or defense strategy with them.

However, professional secrecy primarily imposes an obligation on the lawyer. The client is not bound by the same professional secrecy as their own lawyer. Administrative case law thus reiterates that the client may decide to disclose certain correspondence, while this correspondence cannot be used against them without their consent. This distinction was notably clarified by the Council of State in a decision of February 28, 2025.

The confidentiality of exchanges between lawyers

Article3 of the National Internal Regulations of the legal profession establishes the principle of confidentiality of exchanges between lawyers.

This includes, in particular:

• correspondence addressed by a lawyer to a colleague;
• conversations and verbal exchanges between lawyers;
• the notes and documents produced during these exchanges;
• the information exchanged between advisors during confidential negotiations.

In principle, a confidential exchange between lawyers cannot be communicated to the client in its entirety, transmitted to a third party or produced before a court.

Are all letters between lawyers confidential?

No. The national internal regulations provide for exceptions.

Correspondence between lawyers can be considered "official" when it:

• is equivalent to a procedural act;
• does not refer to any prior writings, statements or material covered by confidentiality;
• complies with the conditions set by professional rules.

An official letter can be communicated to the client and produced in court. It can be used, in particular, to formalize a position, a formal notice, a commitment, or an agreement reached between the parties.

Conversely, simply marking a document "confidential" is not always sufficient to grant it legal protection. Similarly, a lawyer cannot formalize a letter that reproduces or reveals the content of previous confidential negotiations.

The classification of exchanges must therefore be anticipated. It is often necessary to distinguish between:

• confidential correspondence intended to explore an amicable solution;
• official correspondence that establishes a position or commitment;
• the acts that definitively formalize the agreement between the parties.

Is a meeting with the parties and their lawyers confidential?

The presence of lawyers does not automatically make the entirety of a negotiation meeting confidential.

When two lawyers communicate with each other, their statements are generally protected by professional confidentiality. However, statements made directly by their clients do not necessarily benefit from the same protection.

The parties to a dispute are not subject to the professional rules of conduct of lawyers. Unless otherwise agreed or provided by law, they may therefore seek to use the following at a later date:

• an acknowledgment made during the meeting;
• a financial proposal;
• a statement relating to the facts of the dispute;
• a document submitted during the meeting;
• an accounting or commercial presentation;
• an email sent before or after the meeting;
• the report prepared by one of the participants.

The presence of advisors does not automatically create a "confidential bubble" covering all interventions. This confusion, however, is common during negotiation meetings between companies or partners.

Can a settlement proposal be used in court?

It all depends on its author, its medium, and the circumstances in which it was formulated.

A proposal exchanged exclusively between lawyers in a confidential setting cannot, in principle, be produced in court. Conversely, an offer made directly by one party to another may not benefit from any special protection.

Similarly, a draft settlement agreement transmitted directly between the parties, a compensation schedule handed out at a meeting, or a summary email can become evidence.

A proposed amicable settlement does not necessarily constitute an admission of liability. However, its content may reveal facts, amounts, an interpretation of the contract, or an assessment of risk that could be invoked in subsequent litigation.

Therefore, we must avoid systematically equating:

• the willingness to negotiate;
• the recognition of a fact;
• the acceptance of responsibility;
• a firm offer;
• a simple discussion scenario.

The negotiation documents must specify their nature and conditions of use.

How to protect a negotiation meeting?

The safest solution is to conclude a confidentiality agreement before the meeting.

This agreement can be signed by the parties themselves or incorporated into a protocol governing the negotiations. It must precisely define the information and exchanges that are protected.

What should the confidentiality agreement include?

Depending on the context, the agreement may specify, in particular:

• the identity of the participants in the meeting;
• the subject of the negotiations;
• the confidential nature of the discussions;
• the documents in question;
• the ban on recording the meeting;
• the prohibition against producing the exchanges before a court;
• the people to whom the information may be transmitted;
• the procedures for storing or returning documents;
• exceptions to confidentiality;
• the duration of the commitment;
• the consequences of a violation of the agreement;
• the applicable law and the competent jurisdiction.

The agreement must also stipulate that participation in the meeting and the formulation of a proposal do not, in themselves, constitute an acknowledgment of responsibility or a waiver of a right.

A general statement indicating that "discussions are confidential" may be insufficient if the parties do not define the information involved and the prohibited uses.

Is it possible to record a confidential meeting?

Recording a meeting without the consent of all participants raises significant difficulties.

Regardless of the question of its admissibility as evidence, a clandestine recording can undermine the fairness of the exchanges, privacy, or contractual commitments made by the participants.

Before the start of the meeting, it is therefore advisable to specify in writing:

• that no audio or video recording is permitted;
• that no automatic transcription can be performed;
• that meeting assistants using artificial intelligence are prohibited without prior agreement;
• that all note-taking remains subject to the agreed confidentiality rules.

This precaution has become particularly important with the development of video conferencing tools, automatic transcription and reports generated by artificial intelligence.

Are mediation and conciliation meetings confidential?

Certain amicable methods of dispute resolution benefit from a specific legal framework.

The mediator's findings and statements gathered during mediation cannot, in principle, be disclosed to third parties or invoked in judicial or arbitration proceedings without the parties' consent. However, exceptions exist, particularly for compelling reasons of public policy or when disclosure is necessary for the enforcement of the agreement reached.

Confidentiality can also be arranged within the framework of:

• of conventional mediation;
• of judicial mediation;
• of a conciliation;
• of a participatory procedure;
• of a collaborative process;
• of a contractually framed negotiation.

However, a meeting should not be assumed to become a mediation simply because it seeks an amicable solution. The nature of the process, the identity of the facilitator, and the agreed-upon rules must be clearly defined.

What precautions should be taken before the meeting?

Before a meeting between parties and lawyers, it is recommended to follow several steps.

1. Define the objective of the meeting

Participants need to know if the meeting aims to:

• exchange information;
• to seek an agreement;
• to file a complaint;
• to respond to a formal notice;
• organize an expert assessment;
• negotiate compensation;
• prepare a transactional protocol.

This qualification influences the nature of the information that can be communicated.

2. Identify sensitive information

The lawyer must identify with their client the documents that should not be given to the opposing party, including:

• internal legal consultations;
• exchanges between the client and his lawyer;
• risk analyses;
• documents covered by trade secrecy;
• personal data;
• sensitive accounting or commercial elements.

3. Enter into a confidentiality agreement

The agreement should ideally be signed before the documents are sent, not when the meeting starts.

4. Supervise the participants

A list of authorized attendees for the meeting should be drawn up: managers, employees, experts, financial advisors, insurers or technicians.

Each participant must be subject to an appropriate confidentiality obligation.

5. Organize document traceability

The documents submitted may be identified, numbered, and accompanied by a note indicating their confidential nature. Their distribution must remain limited to authorized recipients.

6. Mastering the report

The parties must determine whether minutes or a summary of conclusions will be drawn up. It must also be specified who will draft it and under what conditions it may be used.

What happens when an agreement is reached?

The confidentiality of the negotiations should not prevent the formalization of the agreement reached.

Once the key points have been agreed upon, the lawyers can establish:

• official correspondence confirming certain commitments;
• an agreement in principle;
• a transactional protocol;
• an amendment to the contract;
• a conciliation report;
• a request for judicial approval.

The final document must distinguish legally binding obligations from mere negotiation steps.

It is also useful to determine whether the existence and content of the agreement will remain confidential after it is signed.

Why anticipate the confidentiality of negotiations?

A poorly prepared meeting can undermine a company's litigation strategy. Statements made with the aim of finding a compromise can be taken out of context and presented as an admission or acknowledgment of responsibility.

Conversely, overly broad confidentiality arrangements can make it difficult to prove that the agreement was ultimately reached.

The challenge, therefore, is to protect freedom of negotiation while preserving the possibility of formalizing and enforcing commitments made.

ARST Avocats assists companies, managers and partners in preparing sensitive negotiations, drafting confidentiality agreements and transactional protocols, as well as in conducting business litigation.

By Morgan Jamet, Partner Attorney — Business Litigation
Article updated in September 2026