SPECIAL TO CORPORATE COUNSEL: In a striking example of formalism over realism, the European Court of Justice on Sept. 14 ruled (pdf) that the attorney-client privilege applied only when a communication was connected to the “client’s right of defence” and when the exchange emanated from “‘independent lawyers,’ that is from ‘lawyers who are not bound to the client by a relationship of employment.’”
In rejecting the privilege for in-house lawyers in Akzo Nobel Chemicals Ltd l v. European Commission, the ECJ was affirming the holdings of a 1982 case (AM & S Europe Ltd v. European Commission) and rejecting the arguments not just of Akzo but of numerous intervenors, both national entities (the governments of the U.K., Ireland and the Netherlands) and legal groups (including the Netherlands Bar Association, the International Bar Association and the Association of Corporate Counsel).
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