The issue of privilege for in-house lawyers has hit the headlines following the recent judgment of the European Court of First Instance in the Akzo Nobel…
The issue of privilege for in-house lawyers has hit the headlines following the recent judgment of the European Court of First Instance in the Akzo Nobel case. As has been widely reported, the CFI has refused to recognise in-house lawyers as equal to their private practice counterparts for the purposes of legal professional privilege. It has instead followed a 1982 judgment of the European Court of Justice in finding that the protection of privilege applies only to the extent that the lawyer is “independent”, which it interprets as a requirement that the lawyer is “not bound to his client by a relationship of employment”. The result is that communications between parties and their in-house lawyers are not protected from disclosure during competition investigations by the EU Commission.The reaction of in-house lawyers has been as predictable as it is justified. In this country, in-house lawyers are bound by the same professional rules and standards as apply to solicitors and barristers in private practice. Those duties include acting with integrity and (importantly) with independence. I have no doubt that similar rules apply to lawyers elsewhere in Europe who are members of a national Bar or Law Society.
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