The debate over solicitor-client privilege heats up again
the debate
over solicitor-
client privilege
has been a
hot topic lately
due to a recent
european case
and a Canadian
bar association
report. both
could have a
big impact on
the future of
privilege.
Should in-house counsel be treated the same as their law firm counterparts, especially when it comes to solicitor-client privilege? A recent European case and Canadian Bar Asso- ciation (CBA) report has reignited the debate.
The European Court of Justice decision last September in Akzo Nobel
Chemicals, Ltd. and Akcros Chemicals Ltd. v. Commission offered a rare opportunity for the European Court of Justice (ECJ) to revisit two previous
landmark decisions from 1982 and 1984 that privilege was not available
to prevent disclosure of communications involving in-house lawyers in
competition law investigations. In addition to reaffirming that principle,
Akzo set back perceptions of the role of in-house lawyers in Europe by
30 years or more, and put into question the protections available for any
communications between North American in-house counsel and their
European counterparts or company executives.
In AM&S, a 1982 decision, the European Commission (EC) seized documents emanating from in-house counsel during surprise raids on the company and used them as evidence of infringement of European Union (EU)
competition law even though the documents contained only legal advice
to company management. The ECJ established that a “legal professional
