Litigation: Attorney-Client Privilege in Some Countries Doesn't Exist
Advocate general: There is No attorney-client privilege for in-house counsel under EU law
June 09, 2010 at 08:00 PM
7 minute read
The original version of this story was published on Law.com
The attorney-client privilege is part of the foundation on which the edifice of legal practice in the U.S. is built. Under U.S. law, communications with in-house lawyers are accorded the protection of the privilege in the same manner as communications with outside counsel (though there is often a greater burden on an in-house lawyer in invoking the privilege than there is on an outside lawyer).
The situation in the European Union is quite different. Akzo Nobel Chemicals Ltd. and Akcros Chemicals Limited vs. European Commission arose out of a dawn raid carried out by investigators of the EU Competition Commission seeking evidence of suspected price fixing. During the search at the U.K. premises of Akzo and Ackros in February 2003, the commission copied and placed in its file two e-mails exchanged between the general manager of Ackros and a member of Akzo's in-house legal department, who was admitted as a lawyer to the Netherlands Bar. Akzo brought a proceeding claiming that the documents were covered by the attorney-client privilege. The Court of First Instance rejected the claim on the ground that in-house lawyers do not enjoy a privilege. Akzo appealed to the Court of Justice.
Recently, the advocate general issued an opinion which likewise held that in-house lawyers cannot assert the privilege. The reasoning is that in-house lawyers, allegedly, are not sufficiently “independent.” The opinion stated:
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