Legal Privilege

The right to proper legal advice is reflected in the principle of legal professional privilege, as it is known in common law countries. It is based on the principle of a client’s right of defence. In the common law countries, an added emphasis is placed on the fact that legal privilege contributes to the rule of law.

Like outside counsels, in-house counsels play an important and effective role in the development and maintenance of the rule of law. For that role to be effective however, the legal counsel must be independent. Due process, fair administration of justice and effective enforcement of rights can only be achieved if clients have access to a counsel who gives independent and honest advice without any bias towards themselves, the client, or a third party.

While the principle of protection of written communications between an outside lawyer and a client is generally accepted in Europe, its scope and the criteria for its application vary. Moreover, in-house lawyers do not enjoy legal privilege when dealing with EU institutions, according to the jurisprudence of the Court of Justice of the European Union.

Discussions about this subject, and more generally about the profession and status of company lawyers in Europe, are ongoing however, and legal privilege is an integral part of ECLA’s advocacy work. In 2014, ECLA presented its White Paper “Company Lawyers: Independent by Design”, that goes in depth into the concept of legal privilege and the independency of company lawyers.

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