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An anticipatory reading of the French law n° 2026-122 of 23 February 2026 on the confidentiality of in-house legal counsel opinions. Its entry into force remains conditional on an implementing decree. The interest of the case is not technical. It is organisational — and temporal. The mechanism it reveals, however, belongs to no single jurisdiction.

Before the Law

I know few professions where creating can be litigated.

No one asks the painter why the pale blue became acrylic. No one reproaches the engineer that version twenty-five differs from version one. In those disciplines, it is understood that a creation advances through attempts, abandonments, corrections, bifurcations — that a work in progress is not required to justify its intermediate states. Maturation is inherent to the work. It is not suspicious. It is often proof that the work is serious.

The executive’s strategy obeys the same logic. It hesitates. It bifurcates. It sometimes contradicts itself in its early states. It carries the trace of a conversation from the day before, a weak signal caught in a corridor, an intuition born of an unremarkable detail. That is not incoherence. That is the work of decision-making. Yet this strategy can one day be read as though it should have been born perfect, linear and documented from its very first hour. Its wanderings, its hesitations, can be used against the person who held them. Not necessarily because the law demands it — but because the gaze that reads it was trained to find fault before it was trained to understand a decision.

That is the point the commentaries on law n° 2026-122 do not name. Lawyers are trained to detect what might go wrong before they are trained to understand what must succeed. This is not a criticism — it is a description of a lens. And that lens enters the organisation with the roles it informs. The confidential consultation should be a free space for strategic thinking — somewhere the still-incomplete decision can be exposed, tested, refined. Conducted through that lens, it can become a space of preventive pre-litigation. The implicit question is no longer what must be done and how to do it properly but how will this be read later. This shift is neither intentional nor adversarial. It is the logical consequence of a formation oriented by potential fault rather than by the economics of decision-making.

It is in this context that law n° 2026-122 arrives. Not on virgin ground. On ground already shaped by that logic. What it tends to encourage — formalisation, documentation, the production of protected written records — lands on a pre-existing lens. Understanding the law, for the executive, therefore requires understanding what it meets.

Part I — In the Immediate Term

They Think Well of It

The law is enacted. Reactions converge immediately.

Firms publish their briefing notes within forty-eight hours. Professional associations communicate. Thirty years of advocacy conclude. The commentaries in specialist reviews situate the law in comparative context and measure the gap with the Anglo-Saxon legal privilege regimes the reform intends to approximate.

The register is one of celebration. And that celebration is not unjustified — the protection provided is real, the catch-up with international standards is perceived as legitimate.

But when a text draws only the approval of those whose status it strengthens, the vigilant executive must immediately open a second file. What everyone celebrates is not always what no one governs.

He Will Say No More

Monday, back at the office.

Your General Counsel sends you a clear, well-constructed note. It summarises the new regime, specifies the conditions of use — the lawyer holding the required degree, having completed the required ethics training, producing a personalised opinion grounded in the application of a legal rule, bearing the required marking, addressed to the governing bodies. It proposes a deployment timeline, recommends internal training.

He will say no more. Not because he is concealing something from you, but because he received this law filtered through the same professional ecosystem as those who celebrated it — the same reference firms, the same associations, the same diffused standards, the same professional incentives. His reading is sincere. It is also partial — not in what it says, but in what it does not yet see.

Before evaluating his analysis, identify where it speaks from. Is he satisfied as a professional whose status has just been reinforced? Cautious as someone whose mandate values the prevention of visible risk? Or is he reading the law from your trajectory — from what you want to decide, from how you want strategic reflection to circulate? Some comment on the law from their role. Others read it from your trajectory. The difference is not in the content of their analysis. It is in the position from which they deliver it to you.

Then the mechanics begin. They are neither intentional nor adversarial. They are behavioural.

The in-house lawyer has been trained to respect the law. His function incentivises risk prevention. When a question arrives — from the CFO on an ongoing transaction, from the COO on a contractual matter, from you in passing in a corridor — he receives it through that lens. If it resembles an opinion, he documents. If doubt exists, he formalises. If risk is identifiable, he qualifies and traces it.

That is rational from within his role. It is what the new regime may encourage.

The result is foreseeable. A note for the CFO, labelled, filed. An opinion for the COO, labelled, filed. An opinion for you — responding to a question you raised in passing, on a subject you had not yet closed, on a decision still forming. It says something like:

“In response to the question posed by Mr X as to whether, given applicable law and the terms of the framework agreement, the organisation may proceed with this transaction, I have examined the associated risks. As a precautionary measure, I have recommended against proceeding in the current configuration, or conditioning the transaction on such-and-such guarantee.”

You did not ask for a written opinion. You raised a direction question. You received a document.

Here is the mechanism the law tends to trigger and that no one names: once a regime protects legal opinions, the in-house lawyer whose role valorises risk coverage tends to over-qualify requests as documentable opinions. What belonged to a management exchange can become a request for an opinion. What remained oral, open, exploratory tends to be formalised — because formalisation is now protected, valued, consistent with the best practices the ecosystem diffuses. When the law protects the opinion, everything can end up becoming a request for one.

The archives fill. Each document is protected. Each trace is dated. Each record waits.

Confidentiality does not suppress the existence of a written record. It organises immediate access to it. It erases neither its existence nor its future. What is labelled confidential remains a document with a future — which may take the form of a proceeding, an audit, a challenge, a request for disclosure. On that day, if disclosure occurs, what will be readable is not your decision. It is the accumulation of precautions produced in your name — incriminating or exculpatory, but never neutral, and constituted without your having governed their existence or their form.

The statutory text itself is worth examining. Article 58-1 places the lawyer at the centre of the protected act: “Confidential are the legal opinions drafted by an in-house lawyer.” The original instruction — who triggered the opinion, in what strategic context, to arbitrate what — appears nowhere in the conditions of validity of the regime. What is protected is the opinion as produced, not the intention that provoked it. The strategic intention enters the room. It is the opinion that exits.

A Lead to Exercise

The subject is not to decide against the law. The subject is not to let the law decide in your place.

This subject requires no legal expertise. It requires knowing what the law that has just appeared reduces as a zone of freedom — so that you can organise it.

Before this regime, certain exchanges remained verbal, open, exploratory. That informality was not a legal vacuum. It was a margin of deliberation — the space in which strategic thinking forms before becoming a decision. With a regime that values and may encourage written formalisation, that margin tends to shrink. Not by executive decision. By the behavioural logic of the role.

Under such a law, one is not freer. One is more vigilant about the production of a written record.

You Lead means here that you do not leave that vigilance solely to the lawyer. You commission an executive reading of the reform — not to know how to implement it, but to identify what it tends to reduce, what margins it opens, and how to organise the circulation of strategic reflection within this new framework. Which exchanges merit a formalised opinion. Which merit remaining oral. Which call for the professional secrecy of external counsel rather than internal confidentiality.

No legal opinion transfers executive responsibility. It advises it. Sometimes, it obscures it.

Legal follows means the norm serves the decision, not the reverse. On this precise terrain, it means that you decide what the law changes in the governance of your strategic reflection — not the law deciding by default, through the role automatisms it tends to trigger.

A Profile to Detect

The first signal is not in the statutory text. It is in the way your General Counsel speaks to you about it — and from which position.

Two readings are legible from the very first conversation.

The profile centred on risk coverage thinks from within his role: if the law provides a regime, let us use it. If a question resembles an opinion, let us document. If doubt, let us formalise. If risk identified, let us trace. This is not a defect — it is a role rationality, reinforced by professional standards and ecosystem incentives. He sees little of the second-order effects: the inflation of opinions, the progressive shrinkage of useful informal margins, the records no one governed.

The strategy-oriented profile thinks from your trajectory: does this question need a written record? Should this be kept oral? Should this be handled externally under professional secrecy? What is the effect on the decision in progress? This lawyer does not measure his value by the volume of reservations produced. He asks himself, at each exchange, whether the trace should exist. He protects not his perimeter but your capacity to act.

Observing this reaction to the new law is already piloting — without micromanaging, without technical expertise, from the only question that counts in the immediate term: who decides in your organisation that an opinion needed to be formalised?

Part II — Over the Long Term

Everything Has Become Confidential

The legal systems that preceded this regime produce a documented lesson. Privilege creep — the gradual expansion of the protected perimeter to an ever-wider range of exchanges — is a well-documented phenomenon among practitioners of British legal privilege and American attorney-client privilege. Organisations learn to route through the protected legal channel what they wish to preserve. The movement is rational, organisation by organisation. It becomes collectively counterproductive: when everything tends to be labelled confidential, jurisdictions tighten the conditions for recognising the privilege, case law becomes more demanding, specific litigation emerges to contest alleged confidentiality.

French law enters into force in an ecosystem that knows this mechanism. Or should.

The concrete implication: the archives built in the early years of implementation — in the enthusiasm of deployment, before case law has fixed its contours — will already exist on the day litigation arrives. They are dated. They are contextualised. Some will be well-calibrated. Others will have been produced in a logic of systematic coverage that courts may not validate as an opinion within the meaning of the regime. And the battle will not start from zero — it will start on archives already constituted, in contexts no one had anticipated.

When everything becomes confidential, the battle is over what truly was.

The Decision Passes Under Authorisation

This is the longest effect to build — and the most difficult to see because it forms in the ordinary time of the organisation, without visible incident, without identifiable tipping point.

The in-house lawyer recruited ten years ago arrived young, competent, eager to integrate. He learned the organisation’s codes, its projects, its actors. He made himself useful. He answered questions, produced opinions, flagged risks, was consulted earlier and earlier in processes. He developed precise knowledge of sensitive subjects, ongoing files, the organisation’s vulnerabilities.

Ten years later, he is inescapable. Not because he deliberately captured a new centrality — he did nothing of the sort. But because the organisation progressively integrated his involvement as a natural, prudent, and now expected step. Operational teams submit files to him before arbitration. Functional heads collect his opinion before presenting to the committee. You yourself have fallen into the habit of asking him whether one can proceed.

The decision has not changed hands. It has changed process. And the process has a mandatory passage.

That mandatory passage is not formal. It does not appear in any organisation chart. It settled in through sedimentation — through the repetition of reasonable behaviours, through the valorisation of prudence, through the accumulation of precedents where consulting before acting had prevented a problem. Each consultation that successfully prevented a risk reinforced the reflex. Each opinion that helped avoid litigation justified the next.

With the new confidentiality regime, this process can acquire reinforced legal standing. The opinion that was an informal step can become a protected document. The conversation that was managerial can become a record. And the lawyer who was a counsellor can become, in certain organisations, a de facto validator — not because he decided it, but because the organisation learned not to proceed without him.

This is not a criticism of that lawyer. It is a description of an organisational mechanism. And that mechanism has a precise consequence for you: the decision tends to be increasingly authorised by the person who reads and interprets the norm — rather than taken by the person who bears strategic responsibility.

The Lead to Recover

The law illuminates. It cannot carry the weight of deciding in your place.

Behind the mechanics of opinions, behind privilege creep, behind de facto authorisation, there is a more fundamental question than all the others — a question no one will ask you because it is uncomfortable, and because an honest answer engages more than compliance.

Do you want to follow the lawyer’s prudence and bear its errors — or decide in risk and bear the responsibility?

This is not a rhetorical question. It has two equally defensible answers, depending on context, on stakes, on what you are prepared to assume.

Following legal prudence has its logic. It shares risk. It documents that you were advised. It reduces the solitude of the decision — and many follow this path not from weakness, but in order not to decide alone. But it does not suppress your responsibility. It displaces it. It sometimes obscures it. And it carries a cost that compliance never accounts for: the cost of decisions not taken, of trajectories abandoned, of margins unexploited because someone wrote, as a precaution, that they recommended against proceeding.

Deciding has never consisted of suppressing risk. Deciding consists of choosing which risk one accepts to bear — and in one’s own name. Your mandate is not to wait for certainty. It is to decide without it. The denser and more entangled the normative environment, the more this mandate obliges one to act — because if the norm were sufficient to decide, there would be no need for an executive.

You Lead means, at this depth, that you do not confuse prudent advice with legitimate transfer of responsibility. That you can recognise the moment when documented prudence has become a substitute for your decision. And that you choose, at that moment, to reclaim what belongs to you.

Legal follows — not because the law does not matter, but because the decision does not delegate.

A Profile to Find

The lawyer useful to the executive in this context is not the one who has best integrated the new regime or who labels with the greatest precision.

It is the one who understands that his role is not to occupy the new centrality the regime may confer on him — but to build the conditions in which you can decide with clarity.

This profile thinks from your trajectory when reading the norm. Faced with law n° 2026-122, his first question is not how to implement this regime but what does this regime tend to change in the governance of strategic reflection here. He knows when to formalise and when not to. He knows that certain exchanges are better protected by the professional secrecy of external counsel than by internal confidentiality — and he says so, even if it means removing himself from the loop. He does not measure his value by the volume of reservations produced. He asks himself, before each opinion, whether this record serves the decision or escorts it toward inaction. He protects not his perimeter but your capacity to act.

This profile does not seek the new centrality the regime may offer him. He seeks to preserve your power to decide.

He is rare — not because lawyers lack competence, but because this profile requires a conception of the role that legal training does not spontaneously produce. It requires resisting real incentives to serve a harder-to-measure objective: the quality of the organisation’s decisional governance.

This is not the lawyer the market produces spontaneously. It is the one you must know how to identify — and to steer, so that legal follows does not remain a principle, but becomes the structure of your relationship to the norm.

The subject is no longer confidentiality. The subject is who decides, in your organisation, that a written record needed to exist. And in ten years — who will still be deciding.

When complexity starts to cost,

I help leaders keep business decisions moving under legal pressure.

Lead or Follow | Executive decisions under normative pressure | Dominique Owona-Atangana | substack.com/@dowonat