Took some people long enough to note the recent ruling from Europe on whether in house lawyers had the protection of privilege....
To sum up, quoting the Scotsman report :
"The judgment now means extreme care must be taken when any business is communicating with its in-house lawyer. Any records - including hand-written notes and e-mails - can be copied by the commission and used as evidence. Firms should be wary of making any note of internal discussions intended to prepare for seeking external advice, until instructions to the external lawyer are drafted."
So, be careful what you write, it may well be used against you later on, unless you alter the file notes of course ... as a few Law Society members have been doing recently .. chuff chuff ...
The Scotsman reports :
CATRIONA MUNRO AND JOHAN SAHL
A LONG-AWAITED ruling from Europe on a controversial case against Akzo Nobel, which revolved around questions of lawyer-client privilege, means companies' communications with in-house lawyers could be used as evidence against them.
Also, communications with external lawyers should be clearly differentiated to avoid their being used.
The key case was triggered during a competition investigation of the Dutch chemical group, carried out by the European Commission in February 2003, when its Manchester premises were subject to a "dawn raid" and documents were seized.
As some of these documents were claimed to be communications between Akzo Nobel and its in-house and external lawyers, the European Court of First Instance (CFI) was called upon to rule on the extent to which confidentiality of lawyer-client communications applies in EC competition investigations.
Legal professional privilege, the protection accorded to communications between lawyers and clients, is relatively broad in the UK, but considerably narrower in the EU.
Not only did the CFI confirm the rule that EU privilege does not extend to companies' in-house lawyers - thereby entrenching a long-standing difference with the UK position - the court also gave a strict interpretation of the scope of privilege for documents made for the purpose of seeking external legal advice.
Ever since the European Court of Justice's (ECJ) AM&S ruling in 1982, there has been a glaring conflict between the rules relating to privilege in the EU and in a number of member states. In the UK, written communications with in-house lawyers are privileged, in the same way as those with external lawyers
In AM&S, however, the ECJ decided in-house lawyers' advice was not privileged for the purposes of European Commission competition investigations. Only communications with "independent" lawyers merited privilege. Lawyers qualified in a non-EU state were also denied privilege.
AM&S was criticised by countries, including the UK and the Netherlands, where in-house lawyers enjoy a high level of professional independence and are members of the Bar or Law Society. Against this background, many had hoped the CFI's Akzo judgment could lead to a reversal of the AM&S rule on in-house lawyers.
The documents taken in the 2003 "dawn raids", which are the focus of the dispute, included an internal memo and hand-written notes that Akzo claimed had been drawn up for the purpose of discussing with external lawyers. Two e-mails between the general manager and an Akzo in-house lawyer were also disputed.
The commission took copies of all the disputed documents and later decided none of them were privileged. Akzo appealed that decision to the European Courts.
The CFI thought it could not stray from the AM&S ruling, expressly excluding lawyers "employed" by the company from privilege in competition investigations. The CFI said the divergence in the status of in-house lawyers across the 27 member states is still considerable and, in most countries, their level of independence is far lower than in the UK. Therefore, the disputed e-mails could not be privileged.
Worryingly for European businesses, the court also decided privilege could not attach to the documents Akzo claimed were drawn up for seeking external advice.
It was not enough that they were created in the context of Akzo's competition compliance programme, since Akzo had not shown they were "exclusively for the purpose of seeking legal advice from a lawyer in exercise of the rights of defence". The fact the memo had later been discussed with outside counsel was not sufficient .
The judgment now means extreme care must be taken when any business is communicating with its in-house lawyer. Any records - including hand-written notes and e-mails - can be copied by the commission and used as evidence. Firms should be wary of making any note of internal discussions intended to prepare for seeking external advice, until instructions to the external lawyer are drafted.
• Catriona Munro is a partner, and Johan Sahl a trainee, at Maclay Murray & Spens.