Chancery lane rallies for in-house privilege

Legal professional privilege should extend to communications between company personnel and in-house lawyers in cartel investigations, or so the Law Society will try to persuade the European Court of Justice (ECJ) to rule if it succeeds in intervening in an upcoming case.

The society is seeking leave to intervene in the case of Akzo Nobel Chemicals and Akcros Chemicals v Commission. If successful, it will argue that the ECJ needs to update its case law on client confidentiality.

Akzo Nobel Chemicals is seeking a review and annulment of the findings of the Court of First Instance (CFI) in September 2007, upholding a decision of the Commission to read documents it obtained while investigating possible anti-competitive practices. It claims the documents disclosing communications between company personnel and its in-house lawyers were protected by lawyer-client confidentiality and the Commission acted unlawfully in insisting it was entitled to read them.

The society says the CFI’s decision represents a threat to the right of clients to communicate openly and in confidence with their in-house lawyers, a privilege which is crucial in the business community. Chief executive Des Hudson says: “The role of in-house lawyers has evolved greatly since the first ECJ ruling on this question in 1982 and the case law should reflect the realities of the 21st century. The inequality that is created between members of the profession must be rectified. We believe the advice of all solicitors, who are bound by the society’s high professional standards and disciplinary measures, should be afforded the same level of protection. This is not just an issue that is of interest to lawyers—it has a huge impact on the business community in general. Every client of a solicitor should be able to confer with them in confidence, regardless of whether the client is the employer.”