The lawyer-to-work product doctrine protects lawyers` work ideas and work outcomes. It applies to documents and other material elements prepared in anticipation of litigation and prepared by or for a party or its representatives. It was established in Hickman v. Taylor of the U.S. Supreme Court (1947) and is now enshrined in the Code of Civil Procedure. This privilege also applies to registered in-house lawyers. Solicitor-client privilege protects communications between lawyers and their clients. The EC cannot require disclosure of privileged documents and cannot use such documents as evidence of infringements of competition law, for example. According to settled EU case law, the lawyer-client privilege only applies if the following conditions are met: (1) the communications are made for the purposes and in the interest of the client`s rights of defence and (2) the communications are made by independent lawyers admitted to practice in the European Economic Area (EEA). On 14 September 2010, the Court confirmed that the requirement of independence excludes any employment relationship between lawyer and client. Solicitor-client privilege therefore does not include in-house notes prepared by in-house counsel, unless such notices (1) contain only the text or content of communications with outside counsel or (2) are intended solely to obtain legal advice from outside counsel.
The Court`s judgment is in line with the approach of most European continental legal systems. However, it contradicts the principles that apply in the United Kingdom and certain other EU Member States (Ireland, the Netherlands, Greece, Poland and Portugal), as well as in the United States, where solicitor-client privilege extends to communications with all lawyers, including registered in-house counsel, admitted to a national bar. The Court ruled that there was no justification for aligning EU law with the minority approach in the EU Member States. The Court has held that even “registered” lawyers (i.e. registered in-house lawyers admitted to a national bar or bar) do not enjoy the same degree of independence vis-à-vis their employer as external lawyers vis-à-vis their clients^. Despite their ethical obligations, in-house lawyers cannot be treated as external lawyers, despite their ethical obligations. The Court also confirmed that communication with external lawyers is only preferred if the lawyer is authorised in one of the EEA Member States. In this respect, EU rules differ from the national rules of most EEA Member States, as well as those of the United States, which consider communication with external lawyers authorised in other jurisdictions to be privileged (based on the principle of reciprocity). The General Court`s approach applies only to investigations conducted under EU law. National rules continue to apply to investigations conducted under the national law of the Member States. The issue of the protection of professional secrecy has never been more pressing in merger control than it is today, with competition authorities increasingly making requests for information similar to the scope of inspections. But while the question of (…) The EU SNB also applies to a document that is part of the preparation of a request for external legal advice.
The second major change concerns the strengthening of the statutory BVG. Part of this change would incorporate existing case law into the legislation. This would include extending the SNB not only to the board, but also to the requirement for advice and the drafting of advice. This would create legal certainty. In addition, the concept of legal advice should be defined by law. In addition to legal advice, the definition should also include other tasks performed by in-house lawyers, such as: advising on initiating or avoiding legal proceedings and monitoring legal proceedings. This guide describes the impact of Brexit on English and Welsh lawyers in relation to EU legal privilege. Jonathan Marsh, President of ECLA, focused extensively on the overall impact of the BVG on businesses and the internal market as a whole. The lack of adequate protection of the protection of financial assets is likely to have two drawbacks: it affects the proper functioning of corporate compliance and puts EU companies at a disadvantage compared to jurisdictions protected by the protection of protective goods of plant social property protection goods.
The former has a deterrent effect on management, which can lead companies to avoid internal disclosure of sensitive information. It should be emphasized that the main task of in-house lawyers is to help their companies comply with the law. The latter creates situations in which EU authorities can seize in-house lawyers` documents that can be passed on to governments and private litigants in subsequent proceedings. This has an impact on the proper functioning of the internal market, as awareness of this risk forces companies to use only external lawyers, which leads to higher costs for businesses and reduces their efficiency in dealing with legal issues. There are even scenarios where companies decide not to consult anyone due to increased costs and internal risks. Solicitor-client privilege (“BVG”) is the ability for a client to refuse to provide documents containing legal advice received from a lawyer in the course of a legal proceeding or investigation. In common law countries, the BVG applies to communications with outside lawyers or in-house counsel. At EU level, the SNB does not extend to communication with registered in-house lawyers.
For example, it has become common for US lawyers based in the EU to cooperate with EU lawyers to obtain legal advice, so that EU co-counsel can therefore sign any guidance or advice given to clients. This is best done when law firms employ both EU and third-country lawyers. Unlike English and Welsh law, there is no distinction between the privilege of legal advice (LAP) and the privilege of litigation (LP). Competition reviews have been impossible for many months, and almost everywhere authorities have seen a sharp drop in leniency applications, requiring additional detection tools. The impossibility of searching at dawn was therefore immediately perceived as a threat to the effective application of the competition rules. New techniques have been developed to study as much as possible remotely. Computer investigation methods and tools have also been refined and Covid protocols adopted. Finally, cases have also been identified for future investigative action, and as inspections are again possible, many agencies are returning to companies with an impressive backlog of possible investigations.
This is a good time for legal departments to consider updating existing response procedures to reflect the latest developments and check if they are still effective after months without a raid and knowing that many companies are still efficient in how work is organized during the pandemic. EU-based UK lawyers advising EU-based clients should review how they provide and/or participate in legal advice to ensure that they can be considered reliable in EU administrative or enforcement proceedings without compromising client confidentiality. In his Opinion in Akzo, Advocate General Kokott referred to certain elements which were generally accepted by the Court in concluding that registered in-house lawyers bound by an employment relationship cannot be regarded as `independent lawyers`. First, the in-house lawyer is economically dependent on his employer, who provides most of his income in the form of salary, even if there is protection against dismissal. Second, in-house counsel cannot ignore the company`s business strategy. This affects the ability of lawyers to exercise their professional independence. Third, in-house lawyers depend on and are integrated with their employer “structurally, hierarchically and functionally”. Finally, registered in-house lawyers may be required to perform other tasks for the company, thereby strengthening the close links with it (Akzo opinion, paragraphs 61 to 71). On 20 January 2021, the Criminal Chamber of the French Supreme Court ruled that in the context of a search carried out by a competition authority at dawn, any correspondence between lawyer and client concerning the rights of the defence is protected and therefore unseizable. Contrary to what has been done so far (…) After Brexit, UK lawyers will no longer be able to register as ADRs due to their qualifications as UK lawyers, meaning there is no guarantee of legal privilege in national courts in some jurisdictions.
This is done on the basis that in-house lawyers are not sufficiently independent of the company, so their counsel is not independent legal advice. This mirrors the treatment of in-house counsel in most civil jurisdictions.