Legal protection and mediation: the choice of lawyer is free

On preliminary ruling, the CJEU has established the free choice of lawyer in judicial or extrajudicial mediation procedures in the event of the implementation of legal protection insurance.

Legal protection contracts must, in accordance with Article L. 127-3 of the Insurance Code, explicitly stipulate that the insured is free to choose the lawyer or any other person qualified by the laws or regulations in force to defend, represent or serve its interests.

The insurer can only propose the name of a lawyer following a written request from the insured and limit the amount of reimbursement of lawyers’ fees according to the legal protection taken out.

Article L. 127-3 of the Insurance Code transposes Article 201 of Directive 2009/138 into domestic law, according to which the freedom of choice of lawyer applies only in the context of a ” judicial or administrative procedure ”.

The Court of Justice of the European Union (CJEU) has been seized of the following preliminary ruling question: does the notion of “judicial procedure” referred to in article 201 of directive n ° 2009/138 include judicial mediation procedures or extrajudicial in which a court could be involved?

After recalling the general scope and the mandatory value of the representative’s freedom of choice and in particular that of choosing his lawyer, the CJEU decides that the notion of “judicial procedure” referred to by the directive includes the mediation procedure, whether it is judicial or extrajudicial, and this, whether the court involved or likely to be involved in this procedure or after the closure thereof.

Indeed, the objective pursued by Directive 2009/138, through the principle of the free choice of lawyer, is to efficiently protect the interests of policyholders. Not including mediation could have prevented the insured from benefiting from the assistance of the same representative, including during the properly judicial phase of the procedure, which would be contrary to the objective of the directive.

It is recalled that, in a 2018 ministerial response relating to the relationship between an insurer and the lawyer in the context of the implementation of legal protection insurance, the Ministry of Justice confirmed:
> that the insured is free to choose his lawyer;
> that the fees are freely fixed between the lawyer and his client, without being able to be the subject of an agreement with the insurer of legal protection;
> and that contrary to the specifications contained in certain legal protection contracts, the professional secrecy binding the lawyer to his client is enforceable against the insurer. Consequently, the lawyer has no account to render to the latter.

Only the insured, a client of the lawyer, can be led to inform his insurer of the progress of his case under the conditions provided for in the legal protection contract. A clause which would provide that it is up to the lawyer to keep the insurer informed would be illegal.

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