ACC Says Akzo Decision in European Court Refusing to Recognize Legal Professional Privilege For In-house Counsel is Poor Policy

Association of Corporate Counsel Pledges to Join Members in Reversing Damage to Corporate Compliance

Posted: Sep 14, 2010

SEPTEMBER 14, 2010 (Washington, D.C.) — The Association of Corporate Counsel (ACC), an organization representing more than 25,000 in-house counsel members around the world, believes that today’s decision from the European Court of Justice (ECJ) in Luxembourg reflects an antiquated view of the in-house legal practice.  In the case of Akzo Nobel Chemicals Ltd. V. EU (Case-550/07), the ECJ’s decision restricts the applicability of legal professional privilege to in-house counsel communications with clients, indicating that the independence of in-house lawyers is insufficient to justify professional status in European Community (EC) competition law matters.  The ruling has the perverse effect of undermining the efficacy of corporate compliance in multinational companies.

J. Daniel Fitz, former ACC Board Chair in London, states, “The ECJ ruling has serious ramifications as it denies in-house attorneys and multinational businesses in Europe and elsewhere the critical legal counsel on competition law matters that companies working in today’s global legal marketplace require.”  Fitz adds, “The Court has locked into place the notion that in-house lawyers are not capable of independent judgement under EU professional standards. This puts companies who rely on the expert advice of their in-house lawyers at a disadvantage by forcing them to divulge confidential communications and jeopardizing their standing in litigation matters, as well as day-to-day business.”

ACC’s General Counsel Susan Hackett states, “We are dismayed that the ECJ did not seize the opportunity to recognize the independent judgment and value of the in-house profession.  The court instead relies on conjecture from opinions in AM&S case of nearly thirty years ago, thereby ignoring the realities of modern in-house practice.  In-house counsel are top legal practitioners who are just as capable as their outside counsel counterparts; the idea that professional independence stems from the type of office a lawyer works in, rather than from their moral and professional compass, evidences a deep misunderstanding of legal professionalism and lawyers.”  Hackett adds, “Further, since in-house counsel play such a vital role in assuring that their companies comply with the law, the ECJ should be promoting – not demoting – their capacities.” 

Hackett concludes, “In light of this decision, ACC will redouble our efforts to work closely with our members, and especially with our European leadership, to correct such outdated and unfounded presumptions in application of the law.”

Background Information

ACC houses a webpage dedicated to the Akzo issue at:

http://www.acc.com/advocacy/professional-privilege-in-the-eu.cfm

These pages feature links to the decisions, backgrounders and analysis, and practical steps for in-house counsel concerned about privilege protection in cross-border and EC matters.

 

 

About ACC:

The Association of Corporate Counsel (ACC) is the world’s largest organization serving the professional and business interests of attorneys who practice in the legal departments of corporations, associations and other private-sector organizations around the globe.  ACC promotes the common interests of its members, provides resources to help save time, money and effort, contributes to their continuing education and provides a voice on issues of global importance. With more than 25,000 members in over 70 countries, employed by over 10,000 organizations, ACC connects its members to the people and resources necessary for both personal and professional growth. By in-house counsel, for in-house counsel.®  For more information, visit www.acc.com.

 

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