Cartel case sees professional privilege denied for in-house counsel
In-house lawyers do not enjoy legal professional privilege over internal communications in European Commission cartel investigations, an advocate general’s opinion has suggested.
In Akzo Nobel Chemicals Ltd and Akcros Chemicals Ltd v European Commission C-550/07, Advocate General Juliane Kokott considered that salaried in-house lawyers do not enjoy the same degree of independence from their client as an external lawyer. Therefore, equal treatment of both types of lawyer is not required by law.
An Advocate General’s opinion is followed in most cases by the European Court of Justice, but is not binding.
The case related to a European Commission investigation into suspected anti-competitive practices at Akzo and Akcros premises in the UK in 2003. The companies claimed legal professional privilege over a number of documents seized in a dawn raid, including two emails between the general manager of Akcros and a member of Akzo’s legal department who was admitted to the Netherlands Bar. The general court dismissed this claim. The companies appealed.
“The freedom to engage in unimpeded and reliable communications with his client which legal professional privilege creates for a lawyer must be exercised by him in such a way as to ensure the proper administration of justice,” Kokott said in her opinion.
“In order to be able to avoid conflicts of interest between his professional obligations and the aims and wishes of his client, a lawyer must not enter into a relationship of dependence with his client. An enrolled in-house lawyer, however, is in just such a relationship of dependence.
“The susceptibility of an enrolled in-house lawyer to conflicts of interest also makes it difficult for him to raise an effective opposition to any abuses of legal professional privilege. Such abuse may, for example, consist in handing over evidence and information to an undertaking’s legal department, under cover of a request for legal advice, for the sole or primary purpose, ultimately, of preventing the competition authorities from gaining access to that evidence and information.”
Desmond Hudson, chief executive of the Law Society, said he was “disappointed” by the opinion. “A solicitor is a solicitor whether working in practice or as general counsel for a company. Their obligations as an officer of the court and as a member of a fine profession remain unchanged.”
