On the issue of whether communications with in-house counsel are privileged, the European Union has spoken. What it has pronounced is not good news for lawyers representing companies facing investigations that involve European authorities or for their clients. The takeaway from a recent opinion from the European Union Court of Justice is, be careful what your client communicates with in-house counsel because the investigators will see it. Indeed, the troubling facts of that case make clear that even protected corporate communications are at risk as European investigators are permitted to make unannounced calls and take it upon themselves to review a company’s files to determine what is and is not privileged. The decision serves as a troubling backdrop to European investigations of American companies, such as Microsoft, IBM, and Google, which either have been or currently are the subject of EU investigations.1
The decision by the EU Court of Justice, the highest court in matters of EU law, that communications between company executives and in-house lawyers are not protected by the legal professional privilege, the EU equivalent of the U.S. attorney-client privilege,2 has worldwide impact. As noted by the former chairman of the board of the Association of Corporate Counsel, the EU decision “denies in-house attorneys and multinational businesses in Europe and elsewhere the critical legal counsel on competition law matters that companies working in today’s global legal marketplace require.”3
