Lawyers could be subject to different privilege rules

Advisor at the European Court of Justice says protection is different for in-house and independent lawyers.

In-house lawyers are not protected by the same legal privilege rules as independent lawyers, a senior legal advisor at the European Court of Justice said today (29 April).

Juliane Kokott, an advocate-general at the court in Luxembourg, issued an opinion today saying that the protections of legal professional privilege did not apply to communications with in-house lawyers.

This has serious implications for firms accused of taking part in cartels and their in-house lawyers.

The case dates back to February 2003 when the European Commission searched the offices of Akzo Nobel Chemicals and Akros Chemicals in the UK as part of an investigation into cartel activity. The Commission added to its case-file two emails exchanged between the general manager of Akros and a member of Akzo’s in-house legal department. The two companies asked the Court of First Instance to overturn the Commission’s decision to add the emails to the file.

In November 2009 the Commission fined 24 companies, including Akzo, a total of €173 million for taking part in a cartel involving heat stabilisers, chemicals that improve the heat resistance of PVC.

The companies argued that in-house lawyers should enjoy the same legal professional privileges as independent lawyers.

The advocate-general said that legal professional privilege is based on the lawyer’s role providing legal assistance to his client in full independence and in the interests of justice. The advocate-general said that an in-house lawyer does not enjoy the same degree of independence from his employer and is therefore not entitled to the same level of privilege.

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The Court of Justice will now decide whether to uphold the complaint by Akzo and Akros. The court follows the opinion of advocates-general in 80% of cases.

Advocates-general are asked to give opinions on areas where there is not already an established body of EU case-law.