The EU Slams the Door on In-House Lawyers – Again

October 6, 2010

Some European countries protect as privileged communications to and from in-house lawyers, while other countries do not. In addition to this debate at the national level, the EU has also dealt with privilege protection for such communications – with unfortunate results.

In Akzo Nobel Chems. Ltd. v. European Comm’n, Case C-550/07 P (E.C.J. Sept. 14, 2010) the EU Court of Justice (its highest court) forcefully rejected any notion that in-house lawyers can have privileged communications with their clients. The court repeatedly stated that in-house lawyers were not sufficiently independent to deserve that protection. Ironically, the case involved e-mails between a company executive and an in-house lawyer licensed in the Netherlands (which recognizes the privilege in that setting) – which were seized by the EU in a raid on a company location in the United Kingdom (which also recognizes such a privilege). However, the Court left no doubt that at the EU level the debate is over.

American lawyers have been frustrated by the EU’s (and some European countries’) failure to recognize that for many decades American in-house lawyers have demonstrated their independence, and are justified by their actions protecting their communications with clients.