This is a ruling from last summer, but so important to practitioners that it is worth revisiting in detail. Indeed, in a ruling 6B_1287/2021 of August 31, 2022, the Federal Supreme Court addressed the problem of the commission of the offence of defamation based on statements – potentially damaging to the honour of a third party – that a client makes to his lawyer and that the latter uses, or even has to use, to assert his client’s rights.

A/ The facts

1. By order of March 28, 2018, the Public Prosecutor’s Office of the Republic and Canton of Geneva had refused to enter into the matter of the complaint filed by B against A, due to remarks that the latter had made to his lawyer, which had given rise to a first decision of the Federal Court (TF_6B_127/2019 of September 9, 2019, an excerpt of the recitals of which is published in the BGE 145 IV 462).

2. By judgment of November 25, 2020, the Police Court of the Republic and Canton of Geneva acquitted A of the charge of defamation (art. 173 ch.1 A was convicted of defamation for statements he made to his counsel, lawyer C, which formed the basis of a letter sent by C to B. However, A was convicted of defamation because of statements he had made to D and E about B.

Only the first statement of fact regarding what was said to Attorney C about B will be discussed in this comment.

3. By judgment of September 13, 2021, the Criminal Chamber of Appeal and Revision of the Geneva Court of Justice partially admitted the appeal and the joint appeal lodged by A and B respectively against the first instance judgment. The judgment of November 25, 2020 was thus reversed in that A was found guilty of defamation also because of statements he had made to his lawyer which had led to the drafting of a letter addressed to B.

The facts retained by the cantonal court were as follows:

In 2014, A entered into a contract with the Thai company F for the construction and delivery of a catamaran for an amount of EUR 900,000. A dispute arose between A and F regarding the performance of this contract, as the vessel was apparently not built and delivered according to the agreed terms and time.

In Geneva, at the end of July 2017, A told his lawyer C, that B, in his capacity as de facto director of F, had misappropriated for personal purposes the down payments of CHF 25’000 and EUR 750’000 that he had paid for the purchase of the catamaran, and then that he had fraudulently induced him to pay an amount of EUR 125’000 to obtain delivery of it.

Subsequently, on August 8, 2017, Attorney C, acting for and on behalf of A, sent a letter to B, in which he noted in substance that his conduct, if proven, would fall under criminal law. He also indicated “before taking action against [lui] in the Swiss courts (place of residence of you and your client; place of impoverishment under the criminal law provisions on property offences), [A .________ était] willing to analyze a proposal from [sa] share to obtain full compensation for his injury […].“. B became aware of this letter on August 15, 2017.

4. A is appealing to the Federal Court against the judgment of September 13, 2021 with regard to the three facts for which he was convicted. He mainly asks for his acquittal and, in the alternative, for the judgment to be set aside and for the case to be referred back to the cantonal court for a new decision along the lines of the recitals.

B/ The law

1. As a matter of law, A disputes that he made any comments that were damaging to B’s honor during his interview with Attorney C in late July 2017. He also criticized the cantonal court for considering that the content of lawyer C’s letter accurately reflected his words.

2. As is often the case when the litigant contests the facts, the Federal Court reminds us that it is not an appeal authority. He is bound by the findings of fact of the decision made, unless they have been established in violation of the law or in a manifestly inaccurate manner within the meaning of Art. 97 para. 1 and 105 para. 2 FSCA, i.e. arbitrarily within the meaning of Art. 9 Cst. When the evaluation of evidence and the determination of facts are criticized with reference to the principle of ” in dubio pro reo “, this principle has no broader scope than the prohibition of arbitrariness. Determining what a person knew, wanted, envisaged or accepted is a matter of the content of the thought, namely the “internal facts” which, as such, are binding on the Federal Court in accordance with Art. 105 al. 1 LTF, unless they have been retained in an arbitrary manner (commented decision, consid. 2.2).

3. With regard to the offence of defamation, the Federal Court refers to its judgment of September 9, 2019, in the same case, in which it recalled that, in order for there to be defamation or slander, it is necessary that the author addresses a third party, that is to say, any person other than the author and the subject of the remarks that violate the honor. The lawyer is in principle a third party in the sense of Art. 173 ch. 1 and 174 c. 1 CP The client cannot rely on the lawyer’s capacity as a necessary confidant to avoid criminal prosecution for statements he might make to the lawyer, particularly by referring to an opposing party. In total ignorance – for lack of investigation – of the words exchanged between A and his lawyer C, our High Court had then considered that it was not possible to exclude any suspicion of commission of an offence against honor (TF_6B_127/2019 of September 9, 2019, an extract of the recitals of which is published in ATF 145 IV 462).

Our High Court then recalls that in order to appreciate the prejudicial character of a statement, the judge must proceed to an objective interpretation according to the meaning that the addressee and not the defendant had to attribute to it, in the circumstances of the case. Thus, in the field of offences against honour, it is constant that the same expressions do not always have the same scope depending on the circumstances and the context in which they are used. Determining the content of a message is a matter of fact, but the meaning that an uninformed recipient gives to it is a matter of law (commented judgment, recital 2.3.2 and the cited references).

By way of illustration, the Federal Supreme Court cites – as it often does – the example of political debate, in the context of which an attack on honour must only be accepted with restraint and denied in case of doubt. Freedom of expression is indeed essential to the proper functioning of a democratic society, which implies that the political actors of this system must accept and expect public criticism, sometimes even violent, of their opinions. Nevertheless, the criticism or attack falls under criminal law if, in substance or in form, it not only demeans the qualities of the politician and the value of his or her action, but is also likely to expose him or her to contempt as a human being (judgment under review, recital 2.3.2 and references cited).

Following on from the above, the Federal Court explains that it is not possible todisregard the particular context in which a meeting between the lawyer and his client takes place: ” It should be taken into consideration that, by the nature of his legal advice activities as well as by the professional secrecy to which he is subject (cf. art. 13 LLCA), the lawyer ensures a climate of confidence to his client which allows them to communicate in a free and spontaneous way, the client being able to give his version of the facts, but also his emotions, his feelings and his opinions. The client is often in conflict with the person who is the subject of the disputed statements and is therefore driven by a certain passion. It follows that the words spoken may sometimes go beyond his thoughts, just as a form of exaggeration is foreseeable in this respect, of which the lawyer, the recipient of the words in question, is perfectly aware “(judgment under review, recital 2.3.3).

In such a context and in order not to not prejudice the free and spontaneous communication between a lawyer and his clientIn its decision, the Federal Court stated that the meaning of the statements made to his lawyer could not be assessed in the same way as statements made to any other person. Therefore, an attack on honor can only be accepted with restraint, for example when the remarks in question have no connection with the case the lawyer is dealing with and are only intended to expose the person concerned to contempt (judgment under review, recital 2.3).

4. In the particular case, the cantonal court had held that A and his lawyer had necessarily spoken about the purpose of the intervention expected from C, which consisted in drafting and sending a formal notice to B in order to make it repair the damage suffered by A in the context of the bad contractual performance relating to the catamaran. In such a scenario, it seemed obvious, in the eyes of the cantonal judges, that the grounds for such a claim had been addressed (commented judgment, recital 2.4).

However, the Federal Court considers that the investigation did not make it possible to demonstrate the precise content of the remarks made by A during his meeting with his lawyer C. In this regard, he notes that the cantonal court based its reasoning on the content of the letter of August 8, 2017 and that it contains numerous reservations of the type ” if it were proven ” or ” one must therefore fear that “In addition, the cantonal authority had considered it plausible that the intervention of lawyer C had initially been implemented by French partners of his international law firm and that A had previously consulted the French branch of this firm. In this configuration, the federal judges do not exclude that lawyer C could have received from his associates other information and/or documents from the file, not mentioned during the interview with A, which he would nevertheless have used when drafting his letter (judgment under review, recital 2.5).

In any event, the Federal Court states that – even if the appellant had been able to report, in an effective and unsubstantiated manner, conduct by B.__ that might be criminally reprehensible – the cantonal court did not take into consideration, in its reasoning, that the remarks had been made in a particular context, namely during a conversation between a lawyer and his client.

The federal judges also note, based on the record, that at this time the issue related to the catamaran was extremely tense, with A thinking, as early as spring 2017, that he had received only an unfinished shell, while F’s debacle seemed inescapable. A had nevertheless subsequently paid an amount of EUR 125,000, as he saw no other possible alternative to obtain delivery of his boat. By the end of July 2017, A had just served F with a writ of summons in the French courts and his resolve was strong.

Thus, based on the foregoing, the Federal Court held that ” In these circumstances, it is conceivable that when the appellant told his counsel the ins and outs of his dispute with the respondent, he was annoyed and presented a version of the facts that was marked by exaggeration, which he himself considered hardly plausible. Nevertheless, he could not be reproached for having mentioned it orally to his counsel at the precise moment of the interview, since the acts reproached to the respondent had indeed occurred in the context of his dispute with F.__ with whom the respondent was at least linked by his capacity as an investor “.

To the Federal Court to finally consider that ” the reservations expressed by the lawyer in the letter of August 8, 2017, addressed only to the respondent, indicate that the lawyer was well aware of the possibility that the comments made by the appellant did not necessarily correspond to reality and that they may have been guided by his client’s resentment“. Certainly, the fact that the appellant had already referred to B as aswindler and a thief during conversations with E, could lead one to believe that he was also likely to have used these terms during the interview with his lawyer. However, the Federal Court did not consider that the possible evocation of these terms, in such a configuration, was sufficient to establish an infringement of honor” (judgment commented on, recital 2.7).

5. Therefore, the Federal Supreme Court accepted A’s appeal – only on this point – and acquitted him of the charge of defamation in relation to the remarks he had made to his lawyer C, which C had transcribed in writing.

C/ Conclusion

In our view, the lessons of this judgment are the following:

  • It is not impossible to obtain an acquittal after an order of non-entrée en matière has been quashed by the Federal Court because “it was not excluded at the beginning of the investigation that an offence might have been committed”!
  • Our federal judges recognize the importance and necessity of taking into account the context in which comments are made and to whom they are made in order to determine whether or not they constitute a breach of honour!
  • Lawyers can only welcome this decision insofar as it recognizes, respects and protects the relationship of trust that a lawyer must intrinsically be able to establish with his client in order to best defend his interests!
  • Recognizing this relationship of trust, however, requires the lawyer to keep in mind that what is reported to him or her is very often emotional and may be a subjective representation of a factual situation. The lawyer must therefore remain lucid in the transcription that he may have to make of what his client has told him!

This ruling is a good reminder…. And makes us want to say that, after all, the conditional tense could be the one that best suits the dress…

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