|EU: In-House Lawyers Lack Legal Privilege|
In-house lawyers will have to keep fighting for legal privilege according to a recent opinion by a legal adviser at the European Union's highest court. Advocate-General Juliane Kokott of the European Union's Court of Justice said on April 29th that attorney-client privilege should not apply to in-house lawyers because they are not independent. In a written opinion, Kokott opined:
"A salaried lawyer, notwithstanding any membership of a Bar of Law Society, does not enjoy the same degree of independence from his employer as a lawyer working in an external firm does in relation to his client. There is a structural risk that an enrolled in-house lawyer will encounter a conflict of interest between his professional obligations and the aims and wishes of his company."
In-house corporate lawyers in Europe have been trying to overturn a 1982 ruling that says attorney-client privilege in the EU applies only to communications with outside counsel. Only a few EU member states apply privilege to in-house lawyers-the United Kingdom, Ireland and the Netherlands. Akzo Nobel Chemicals Ltd. has a case before the EU in which it is trying to prevent the EU from using documents that antitrust investigators seized in a raid seven years ago, including two emails between an Akzo executive and the company's in-house lawyer. The commission has argued that it could look at the e-mails because the lawyer was an Akzo employee and therefore not independent. Akzo argued that the lawyer was a member of the Dutch bar, and was compelled by professional ethics to provide sound advice. Advocates for in-house counsel say they are worried that the EU's narrower definition of privilege creates confusion in big cases involving lawyers from different countries. The lower court agreed with the commission and Kokott agreed as well. Kokott's opinion is not binding but the court's judges often fall in line with the advocate general's opinions. A final ruling is expected later this year.
"Legal Privilege Still Elusive for EU's In-House Lawyers," Corporate Counsel.com, 5/10/10.