In the United States, we take for granted that a lawyer is a lawyer, and that those who practice as in-house attorneys are no less professional, ethical and independent than outside counsel who act for clients. This view, though, is not necessarily shared around the world, and we take note of a disturbing trend in one significant quarter that continues to challenge the equality of lawyers who choose to practice in house.
We previously expressed concern about the ramifications of the decision in Akzo Nobel Chemicals Ltd. v. Commission, in which the European Court of Justice rejected claims of privilege for in-house legal counsel due to a claimed lack of independence. That case raised concerns about how companies, and even outside counsel dealing with those companies, could preserve appropriate client confidences. The issues are neither academic nor limited to “big law” international practitioners as legal practice becomes more globalized at all levels.
Now we have a new decision reaffirming this restrictive view of in-house counsel. In P Prezes UKE, decided Sept. 6, the ECJ ruled that in-house counsel may not represent their companies in cases before the ECJ or the General Court. Only lawyers authorized to practice before the courts of a member state can do so.
In the case, two Polish lawyers (technically, under Polish law, they were “legal advisors” and otherwise regulated under Polish law) employed by a company were denied the ability to represent it on the basis that they were not independent, based on the Akzo Nobel ruling. The ECJ expressly rejected the argument that national law, which authorized such appearances, should suffice. The ECJ stated “that condition cannot however be interpreted as constituting a sufficient condition, in the sense that every lawyer entitled to practise before a court of a Member State is automatically allowed to act before the Courts of the European Union.” Even New Jersey’s rules, which limit non-N.J. in-house lawyers from appearing in court under a limited license, permit the exception for pro hac vice admission and do not entertain the underlying assumptions of the ECJ.
It is ironic that this decision comes on the heels of the American Bar Association’s adoption of liberalization of the Model Rule on Admission by Motion, which specifically includes service as in-house counsel as part of the activity of the “active practice of law.”
We expressed concern that Akzo Nobel has the potential for mischief when choice of law issues arise. While this most recent case, on its face, is limited to appearance before the ECJ and does not affect national practice, it does reflect a disturbing set of assumptions about in-house counsel not shared in this country. Those assumptions may find their way into other rulings not yet anticipated as the globalization of legal practice and professional ethics continues to raise choice of law issues in the professional, and not just substantive, context. We disapprove of this ruling that imputes anything less than professional objectivity or ethical compliance to in-house attorneys.