The issue of professional privilege for employed lawyers has been thrust into the spotlight once more in a case that has begun in the European courts.
Akzo Nobel Chemicals and Akcros Chemicals v the European Commission (EC) begun in the Court of First Instance on 28 June and hinges on what advice given by in-house counsel is privileged.
The proceedings will be closely watched by the UK in-house legal community, as corporate counsel complain that the EC refuses to give them the right to give advice in confidence, unlike their private practice counterparts.
EC competition inspectors raided the Akzo Nobel Manchester premises on 25 March, 2003, looking for “evidence of suspected price-fixing and exchange of confidential commercial information”.
Documents were seized but Akzo Nobel claimed that some of these were protected by legal professional privilege (LPP) as they were addressed to or from their in-house legal team — an argument subsequently rejected by the EC.
The EC has long defended its stance that in-house lawyers are not capable of providing an independent legal service because they are employed by the company they are advising — a claim rejected by many in-house lawyers.
Mark Maurice-Jones, the Europe, Middle East and Africa head of legal at Kimberly-Clark, said: “The approach by the EC has, so far, been unacceptable. Obviously, general counsel have their companies’ interests at heart, but they also have to adhere to their responsibilities to the profession.”
The Law Society is also calling for the EC to change its stance. President Fiona Woolf said: “We have raised the issue of LPP for in-house lawyers repeatedly with the EC and most recently lobbied at the highest levels within the EC to draw attention to the important role played by in-house counsel in good corporate governance. We will be making every effort to ensure in-house counsel are granted LPP status.”
