If in-house counsel advise their coworkers based anywhere in the European Union on a competition matter, the conversations, e-mails, and documents aren’t protected by attorney-client privilege, according to a controversial decision handed down on September 17, 2007. General counsel across Europe roundly condemned Akzo Nobel Chemicals Ltd. v. Commission, which found that attorney-client privilege in antitrust cases occurring within the 27 European Union member states can only be claimed by attorneys who’ve passed the bar in an EU country and are affiliated with a law firm.
In the U.S. and UK, where communications with in-house counsel are protected by attorney-client privilege, the decision seems particularly surprising and, to some, counterproductive. Hiring an outside law firm for all European antitrust or cartel issues is potentially quite expensive and might hamper general counsels’ ability to ensure their employers are complying with competition law.
