Law Society backs in-house lawyers in privilege battle at ECJ

Dutch chemical company Akzo Nobel lost a case at the Court of First Instance (DFI) last year over the European Commission's seizure of internal documents in a price-fixing investigation. It had argued that the documents were protected by lawyer-client confidentiality. Akzo has appealed the case to the European Court of Justice (ECJ).

The Law Society wants the ECJ to allow it to put arguments in favour of retaining client confidentiality even for internal lawyers. It wants to argue that its own regulation of the profession is sufficient to ensure "independence and integrity".

"It is time for the EU court to update its case law," said Des Hudson, the chief executive of the Law Society. "The Society will argue that 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."

"[Legal professional privilege] LPP is a fundamental principle of the rule of law and of human rights, in particular the right to a fair trial under Article 6 of the European Convention on Human Rights, and any exception to that principle must be shown to be necessary," said the Law Society in its official submission to the Court to be allowed to participate in the case.

The Society argues that it should be allowed to participate under the Statues of the ECJ, which say that intervention is permitted by member states and institutions of the European community, and "any other person establishing an interest in the result of any case submitted to the Court".

Its submission argues that "the ability of solicitors to give rapid advice freely to their clients is severely restricted" by the CFI ruling.

The Society argues in its paper that in-house counsel are just as closely bound by Law Society regulations demanding independence and integrity as private practice lawyers are.

"It is …crucial that all members of the profession are treated equally," said Hudson. "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."

The European Commission seized Akzo documents in 2003 and Akzo sought to protect them under legal privilege. The documents were held in escrow pending the CFI case. The CFI ordered their release last September.