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.
Legal Privilege
Legal professional privilege developments: Belgian legal challenges, French reforms, and US procedures on privileged materials
In the last 5 years, the EEA has seen a major shift towards extending legal privilege and confidentiality rules to in-house counsel in direct opposition put forth by cases such as Akzo Nobel.
The French Ministry of Justice starts work on the confidentiality of in-house lawyers’ advice
Jean-Philippe Gille, President of the French Association of Company Lawyers (AFJE), gave an overview of the ongoing developments in French, which has been translated here below.
CJEU Decision reinforces the value of LPP
The case concerned an amended Directive that introduced an obligation to report any potentially aggressive tax-planning cross-border tax arrangements to the competent authorities.
Legal privilege and the DPO role for in-house counsel – incompatible or unavoidable?
On 21 October 2022, the General Council of the Portuguese Bar Association, in conjunction with the IAEA (the Institute of Corporate Lawyers and Associations) and ECLA, held a conference on the Challenges of Corporate Law.
Swiss mulling on specifics of legal professional privilege for company lawyers
In Switzerland, after years of unsuccessful attempts, there is now a high likelihood that the revision of the upcoming Code of Civil Procedure will include passages on legal professional privilege for company lawyers.
Brexit and Legal Professional Privilege in cross-border situations
Cross-border legal correspondence between companies and individuals based in the UK and in the EU should understand when LPP applies and what regulates it.
Professional statute essential for Dutch in-house counsel, Supreme Court holds
For foreign company lawyers in the Netherlands to enjoy the same rights as Dutch company lawyers, the conditions for guaranteeing independence are identical.
Cour de cassation upholds lower court ruling, clarifies scope of legal professional privilege under French law
The case at hand concerned an investigation into potential cartel agreements between manufacturers, wholesalers, and major retailers in 2014.
OECD competition law recommendations include legal privilege
The eight points of recommendation on competition law include a point on legal privilege, an element that ECLA sees as inherent to the functioning of European corporate lawyers.
Why Legal Professional Privilege is in the interest of all concerned
An opinion paper submitted by Eric Gardner de Béville, previously General Counsel at Coca-Cola
France, Spain & Portugal, consultant and member of the Cercle Montesquieu
Foreign in-house lawyers enjoy legal advice privilege under English law
The judgment also covers in-house lawyers in jurisdictions where they do not enjoy legal privilege
Legal Professional Privilege in Europe and Beyond
The roundtable discussion included the status of LPP in various European jurisdictions, including Germany, France, the UK and others, in addition to providing a regulatory overview within the EU legal framework, contrasting it with the status of LPP in the US.
Legal privilege for Spanish in-house lawyers clarified and enshrined in law
For company lawyers, this entails another European jurisdiction that clarifies and enshrines in statute the inherent rights and obligations of lawyers in the in-house community.
Swiss mulling on LPP for civil proceedings
Though preliminary in nature, it is positive to see discussions developing under the Swiss jurisdiction on extending lpp to corporate lawyers
Independence and legal privilege for domestic and foreign in-house counsel affirmed by Dutch District Court
The decision reaffirms the applicability of legal professional privilege for corporate counsel under Dutch law and clarifies who falls under the legal scope
England’s Court of Appeal affirms “absolute nature” of legal privilege
The Courts reaffirm one of the key tenets of the common law system
France moves to protect confidentiality of in-house advice
To protect French companies from legal trouble abroad, the Macron government might now be ready to extend legal privilege to company lawyers
US court decision a warning for in-house lawyers
The ruling of a Colorado district court that reignited the discussion on whether or not attorney-client privilege applies to communications from in-house lawyers that contains both legal and strategic business advice.
Constitutional Court: Seizure of documents in German diesel emissions scandal were lawful
Germany Seizure of documents in diesel emissions scandal lawful, says Constitutional Court Following the unsuccessful…
