Legal professional privilege will not protect internal communications between a company and its in-house counsel. How can in-house counsel manage this issue?
The case of Akzo Nobel Chemicals Ltd and Akcros Chemicals Ltd –v- European Commission has received a great deal of interest, principally because its ruling concludes a highly controversial dispute which has significant consequences for businesses across Europe.
In its ruling, the European Court of Justice (the “ECJ”) confirmed that legal professional privilege will not protect internal communications between a company and its in-house counsel. In arriving at its decision, the ECJ questioned the ability of in-house counsel, who is an employee of a company, to act independently of his/her employer. The ECJ considered that the employee/employer relationship puts in-house counsel in a precarious position because he/she is unable to ignore the commercial strategies pursued by the employer company, which in turn impacts on in-house counsel’s ability to exercise professional independence.
While a great deal can, and has already been, said about the intricacies of this case, the aim of this article is to provide you with some practical suggestions on how to navigate this quite tricky area of the law.
Different privilege rules apply to different jurisdictions
The ruling of the ECJ will be applied to European Commission (“EC”) investigations into suspected competition law breaches, however, the position taken by other European jurisdictions, such as England and Wales, is different. In England and Wales, communications with in-house counsel concerning English law litigious matters/cases will still be protected by legal privilege as long as the in-house counsel is (i) a regulated legal professional and/or registered with a professional bar association, and (ii) acting in his/her capacity as a solicitor.
The question of whether internal communications with in-house counsel are protected under legal professional privilege will depend on the investigating authority. For example, communications with in-house counsel will be protected in a dawn raid carried out in England by The Office of Fair Trading or the Serious Fraud Squad as long as the criteria for privilege under English law are met. However, if a raid is carried out at the same time, or with assistance from, the EC, it may be that in-house counsel advice will be accessible by the EC but not the other regulator(s).
Use of external legal advisers
When seeking advice on competition law issues, it may be preferable to instruct external solicitors sooner rather than later. However, if you decide to rely on in-house counsel, you will need to carefully consider whether your in-house counsel needs to provide advice in writing or whether it can be provided orally.
All questions and/or communications relating to competition law issues should be sent straight to your external solicitors and clearly marked as having been prepared “for the purposes of seeking external legal advice”. As far as possible, all communications with your external solicitors should (on each page of the document) be marked as “privileged and confidential/external legal advice”, and the same wording should be included on the subject line of all privileged emails.
You should try to avoid forwarding, copying, summarising or annotating external legal advice. However, if you need to circulate any such legal advice, make sure you circulate the original form provided by the external solicitor without any comments/opinions attached.
All legal advice provided by external solicitors should be kept in separate files (whether hard or electronic copies) clearly marked as “privileged”.
If you have queries, or require further information, about any aspect of this article, please feel free to contact Matthew Hattersley .
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