June 24, 2021

Compliance: at the moment

► Compliance Law is above all a Time Management. This is why it is located in Ex Ante, before disasters happen, with the goal that they do not happen, to intervene at least on time to break the domino effect. This is why the achievement of Monumental Goals has been internalized in companies, this achievement being until now States’ affair. This does not mean that Ex Post is irrelevant. Especially because when the Ex Post entities are the most legitimate. It is the case of Judges. What has just happened to Rudy Giuliani illustrates this perfectly.

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On June 24, 2021, the Supreme Court of the State of New York published its decision concerning Rudy Giuliani (➡️⚖️Supreme Court of the State of New York Appellate Division, First Judicial Department, June 24, 2021, Giuliani)

Rudy Giuliani, who was federal prosecutor, then mayor of New York, then counsel to President Donald Trump, then lawyer was sentenced to the provisional suspension of his professional license in the State of New York (➡️📝New York Times, Court Suspends Giuliani's Law License, citing Trump Election lies, June 24, 2021).

The judgment evokes the insurrectionary events in the Capitol and relies on an ethics committee for the conduct that lawyers must have. First the convergence is remarkable in the motivation between the decisions made by Facebook with regard to Donald Trump, the professional structure to which Rudy Giuliani belongs and the decision of the state court (I).

The articulation is rather done in time (II). First of all, the company which intervenes as quickly as possible, because it is necessary to act (but for acting, it is also necessary to "judge", even if the entity is not a tribunal ...); then the profession (and here the person concerned belongs to a regulated profession but it is indeed in the name of "the general public interest" that the sanction will be pronounced), nothing that can escape the in fine validation or questioning of the Judge.

 

I. The articulation of the substantive principles implemented by the Company, the Jurisdiction and the Professional Regulator

In a Rule of Law, fundamental principles are the same for subjects of Law (companies being subjects of Law like others), intermediary bodies (like professional orders), jurisdictions and States.

In a Rule of Law, Truth is elementally kept by Law and Disinformation is sanctioned.

Thus, even if the power of Freedom of Speech in the United States has a constitutional power unlike any other, since "disinformation" is not sanctioned as such, the legal path of defamation action makes it possible to obtain protection against practices of massive disinformation.

Even if historians have worried about the paradoxical weakness of the United States because of its legal system (see 💻Snyder, T., The State of Our Democracy, 2021) Harvard Law professors have intervened to explain that no one could say everything, defamation action allowing a reaction.

This is the path that was used in January 2021 against Rudy Giuliani (➡️📝New York Times, Rudy Giuliani sued by Dominion Voting Systems over False Election Claims, May 4, 2021) for having unleashed a viral campaign of disinformation about what was presented as an incorrect result during the presidential election.

It is therefore "disinformation" which is sanctioned.

It was also prevented by systemic digital companies such as Google, Twitter, Facebook and Instagram, which disabled Donald Trump’s accounts, the other actor.

But besides, Rudy Giuliani is a lawyer.

As such, what he does engages the honor of his profession. It is therefore intended to be the subject of disciplinary procedures. 

This is why the jurisdiction of the State of New York took advice from an "ethics committee".

In particular with regard to the conclusions of the latter, the state jurisdiction declared that the false statements "tarnished the entire reputation of the legal profession". This justified his suspension in New York State. This suspension is temporary (disciplinary procedures will begin).

But on the other hand, the Court considers that the deontologically objectionable conduct "directly" increased the tensions which led to the violence of the events in the Capitol.

By taking such a justification, the Court operates the junction on the one hand with the other character that Rudy Giuliani advised, Donald Trump, but especially with the decision taken by the private companies, which suspended Donald Trump’s accounts.

Thus, in the name of the same principles, Public Order and respect for Truth, the Court by connecting, through its motivation, Companies - which had acted before - and Disciplinary Body which will intervene afterwards, has shown the coherence of the American legal system.

 

II. The articulation over time between crucial companies, jurisdictions and professions

The difficulty comes rather from the articulation in time.

Indeed, in this Donald Trump’s case who, in particular legally advised by Rudy Giuliani, affirmed that the elections had been stolen, which contributed to a start of insurgency and riots in Capitol, the question is the reaction time and the modality of reaction.

The first type of bodies which react were systemic digital companies: Google, Twitter, Facebook.

The modality was the deletion of Donald Trump's accounts, with the justification for inciting destabilization and civil war.

Controlling "hate speech", in Europe in name of Law, in the United States in name of Corporate Social Responsibility (CSR).

Therefore, the company is therefore instituted "Judge and prosecutor of itself" by Compliance Law, because it is in position to act at the right time, that is to say immediately (see ➡️📅 the colloquium, co-organized by the Journal of Regulation & Compliance and Lyon 3 University, The Firm instituted as Judge and Prosecutor of itselfCompliance Juridictionnalization, 2021).

It is remarkable that, despite all the criticisms that can legitimately be made of it (see eg Heymann, J., La nature juridique de la "Cour suprême" de Facebook" (The legal nature of the "so-called" Supreme Court of Facebook), in The Firm instituted as Judge and Prosecutor of itself, already quoted above.) this jurisdictionalization works, as soon as the procedural principles are respected (see ➡️📝Frison-Roche, M.-A., The judge-judged: articulating words and things in face of the impossible conflict of interests, in ➡️📕Compliance Juridictionnalization, 2022).

But in fine, the decision is always to come back to the Courts and systems depend above all on the probity of people, who are most firmly anchored in "professions".

What is remarkable in the present case is that we could "wait" for the time of justice, because the sanction of the adviser - and his neutralization by a ban to practice - is less urgent than the neutralization of Donald Trump on social networks. Their power as an "influencer” is not the same.

It is however remarkable that if the court took care to rely on the opinion of an "ethics committee", it did not wait for the disciplinary sanction itself.

This will come later.

Justice itself, above all sensitive to time, therefore pronounced in advance: a "provisional" suspension. In the same way that it has often been said that closing an account in the digital space was a capital punishment, one can consider that a professional suspension was, even in "temporary" form, a capital punishment for a professional.

We can see here that Professions, here the profession of attorney, are central to Compliance mechanisms. Indeed, the more States are weakened by their natural relationship with the “border”, the more the technical notion of “Profession”, which does not have this natural relationship, will have to be developed.

However, supervised by the Judge, a Profession has ethics at its heart. The same that the Judge, in anticipation, took as a basis to sanction for the future the adviser of a president immediately dismissed by the systemic company. 

So as long as crucial businesses, professional and jurisdictional structures adjust in substance, adjustment over time can work, by anticipation and feedback.

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Nov. 16, 2019

Publications

The Finance Bill has proposed to the Parliament to vote an article 57 whose title is: Possibilité pour les administrations fiscales et douanières de collecter et exploiter les données rendues publiques sur les sites internet des réseaux sociaux et des opérateurs de plateformes (translation: Possibility for the tax and customs administrations to collect and exploit the data made public on the websites of social networks and platform operators).

Its content is as is in the text voted on in the National Assembly as follows:

"(1) I. - On an experimental basis and for a period of three years, for the purposes of investigating the offenses mentioned in b and c of 1 of article 1728, in articles 1729, 1791, 1791 ter, in 3 °, 8 ° and 10 ° of article 1810 of the general tax code, as well as articles 411, 412, 414, 414-2 and 415 of the customs code, the tax administration and the customs administration and indirect rights may, each as far as it is concerned, collect and exploit by means of computerized and automated processing using no facial recognition system, freely accessible content published on the internet by the users of the online platform operators mentioned in 2 ° of I of article L. 111-7 of the consumer code.

(2) The processing operations mentioned in the first paragraph are carried out by agents specially authorized for this purpose by the tax and customs authorities.

 

(3) When they are likely to contribute to the detection of the offenses mentioned in the first paragraph, the data collected are kept for a maximum period of one year from their collection and are destroyed at the end of this period. However, when used within the framework of criminal, tax or customs proceedings, this data may be kept until the end of the proceedings.

(4) The other data are destroyed within a maximum period of thirty days from their collection.

(5) The right of access to the information collected is exercised with the assignment service of the agents authorized to carry out the processing mentioned in the second paragraph under the conditions provided for by article 42 of law n ° 78-17 of January 6, 1978 relating to data processing, the files and freedoms.

(6) The right to object, provided for in article 38 of the same law, does not apply to the processing operations mentioned in the second paragraph.

(7) The terms of application of this I are set by decree of the Council of State.

(8) II. - The experiment provided for in I is the subject of an evaluation, the results of which are forwarded to Parliament as well as to the National Commission for Data Protection at the latest six months before its end. "

 

This initiative provoked many comments, rather reserved, even after the explanations given by the Minister of Budget to the National Assembly.

What to think of it legally?

Because the situation is quite simple, that is why it is difficult: on the one hand, the State will collect personal information without the authorization of the persons concerned, which is contrary to the very object of the law of 1978 , which results in full disapproval; on the other hand, the administration obtains the information to prosecute tax and customs offenses, which materializes the general interest itself.

So what about it?

Read below.

Oct. 9, 2014

Publications

L'avocat s'est construit, se définit et continuera de se définir par sa déontologie, dont l'Ordre est le concepteur et le gardien.

Cette déontologie a en son coeur l'indépendance de l'avocat, une indépendance qui le marque et le distingue.

Cette force explique l'intimité qui existe entre l'avocat et l'Ordre auquel il appartient et dont il dépend, les règles que l'Ordre lui applique devant lui demeurer intimes.

Cela n'empêche en rien que le droit a une valeur économique et que le cabinet d'avocat est une entreprise, rendant un service et supportant des coûts. Plus encore, la rentabilité de cette entreprise est d'autant plus nécessaire que l'avocat doit, par devoir et donc par nature, assurer des tâches qui ne sont pas rentables, comme l'aide au plus faible.

C'est pourquoi les enjeux de la profession d'avocat sont les mêmes que les enjeux des Ordres : il s'agit de développer l'esprit d'entreprise dans tous les cabinets d'avocats, que l'Europe les porte et que les technologies les aide. De la même façon, les Ordres doivent permettre aux avocats de demeurer ce qu'ils sont par essence sans en mourir économiquement, c'est-à-dire ceux qui défendent et conseillent en échange de rien ni dépendre de personne. Cela nécessite un dialogue renouvelé aussi bien avec les compagnies d'assurance qu'avec les pouvoirs publics, l'aide juridictionnelle autant aussi bien question d'argent que question de valeur fondamentale.

Updated: July 31, 2013 (Initial publication: Oct. 17, 2011)

Teachings : Les Grandes Questions du Droit, semestre d'automne 2011

Le cours a trait à la troisième Grande Question du Droit qui porte sur le juge. Il se concentre plus particulièrement sur la fonction politique et sociale de celui-ci, la question plus technique du procès et du jugement faisant l’objet du cours ultérieur. En ce qui concerne la fonction politique et sociale du juge, celui-ci apparaît tout d’abord comme un instrument de rappel à la légalité. En cela, il est un instrument de réalisation de la loi, d’autant plus s’il s’agit d’un juge pénal ou administratif, où l’intérêt général et l’ordre public interviennent. L’autre fonction du juge est de mettre fin au litige entre les personnes, ce qui est l’office traditionnel du juge civil. Mais l’intérêt général est également présent dans le droit privé et l’on cherche aujourd’hui en toute matière à développer les modes alternatifs de règlement des litiges.