Law Society plans European Court intervention to defend the right to client confidentiality

The Law Society is seeking leave to intervene before the European Court of Justice (ECJ) in the Akzo Nobel case. 

Akzo Nobel is appealing against a recent judgment that legal professional privilege did not extend to communications between company personnel and in-house lawyers in cartel investigations. 

The Law Society believes it is time for the EU court to update its case law. 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.

Des Hudson, Law Society Chief Executive says

“The Law Society is not letting this opportunity to revisit the EU’s case law pass by.  The role of in-house lawyers has evolved greatly since the first ECJ ruling on this question in 1982 and the case law should reflect the realities of the 21st century.  The inequality that is created between members of the solicitors’ profession must be rectified. 

“We believe that 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 Solicitors’ Code of Conduct provides sufficient regulatory safeguards to ensure that in-house lawyers act with all necessary independence and integrity. 

“This is not just an issue that is of interest to lawyers – it has a huge impact on the business community in general.  Every client of a solicitor should be able to confer with them in confidence, regardless of whether the client is the employer. 

“It is time that the European Commission appreciated the important role that in-house counsel play in ensuring good corporate governance and competition-law compliance.  As such it is in the public interest to ensure that clients can communicate openly and in confidence with their in-house lawyers.” 

This case has considerable implications for the growing number of in-house solicitors in England and Wales who, at present are able to claim that communications between them and their employer clients are subject to LPP. The Society believes that the Solicitors’ Code of Conduct provides sufficient regulatory safeguards to ensure that in-house lawyers act with all necessary independence and integrity.

A number of professional bodies at both national and international level, including the International Bar Association and the CCBE, take a similar view and have already intervened.

The Law Society’s application is likely to be made in early March 2008.