Post Akzo, Michael Frisby and Laura Beagrie consider the disclosure status of in-house counsel
Despite the growth in the use and status of in-house lawyers (IHLs) since 1982 and the increased regulatory burden on companies in the competition sphere, companies must disclose communications with their IHLs in competition investigations where they would not have to if the counsel they used was external.
This position was reinforced in September in Akzo Nobel Chemicals Ltd and another v European Commission (Cases T-125/03 and T-253/03), [2007] All ER (D) 97 (Sep) when the European Court of First Instance (CFI) refused to reconsider a 1982 judgment and allow legal professional privilege to attach to communications with in-house lawyers (IHLs) in the context of EU competition investigations.
Most commentators had expected the CFI to extend legal professional privilege (LPP) to IHLs, as the president of the CFI had hinted in an earlier interlocutory hearing that perhaps the time had come in EC law to consider broadening LPP to include communications between a company and its IHL.
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