In the field of competition law, internal company communications with in-house lawyers are not covered by legal professional privilege
It is important that any business with in-house Counsel takes note of an important recent decision.
The European Court of Justice (“ECJ”) has confirmed that legal professional privilege does not apply to protect communications between parties and their in-house lawyers from disclosure during competition investigations by the European Commission. The judgment was handed down by the ECJ in the Akzo Nobel Chemicals Limited and Akcros Chemicals Limited v Commission of the European Communities on the 14th of September 2010.
The judgment confirms that only communications with external counsel will be protected by legal professional privilege and may be prevented from being disclosed. Advice and exchanges between in-house counsel and his/her employers may be inspected by the Commission and could, depending on the content of the exchanges, potentially be used as evidence in competition investigations against the company involved.
The ECJ concluded that despite in-house lawyers’ membership of a Bar or Law Society or their professional ethical obligations, due to their economic dependence and close ties with their employers, in-house lawyers do not enjoy the same degree of professional independence as a lawyer working in an external law firm and as such legal professional privilege does not cover exchanges within a company or corporate group with in-house lawyers.
Sabrina Burke
sburke@hayes-solicitors.ie