A global body for in-house lawyers is seeking to defend legal professional privilege in an EU court case that could jeopardise in-house lawyers' roles as 'trusted advisers' to colleagues.
The Association of Corporate Counsel (ACC) announced that it has filed an application to intervene before the European General Court in Broadcom and VMware International v Commission, which is challenging the European Commission's attempt to compel disclosure of documents created by in-house counsel located in the US.
While several EU member states recognise legal professional privilege protections for in-house counsel, the ACC said the European Commission does not recognise privilege for in-house communications in certain proceedings, particularly competition and antitrust investigations.
Seeking to defend legal professional privilege for in-house counsel, the ACC said its members play a critical role as trusted advisers and are often the first port of call for colleagues when legal, regulatory, compliance, and business issues arise. 'Their ability to conduct internal investigations, assess risks, promote compliance, and provide candid legal advice depends on the assurance that communications with clients will remain confidential and protected by legal professional privilege,' the ACC said.
The association told the Gazette that privilege does not shield the underlying facts from disclosure and a company cannot make a fact secret simply by telling the in-house lawyer.
ACC vice-president Susanna McDonald said: ‘Companies rely on in-house counsel to provide candid advice and be experts on the business. Without legal privilege protections, compliance falters because employees, directors, and leaders cannot speak freely and candidly about sensitive topics.'
The EU's potential 'extraterritorial' reach is another concern.
McDonald said: ‘This case is not about shielding facts from regulators. It is about whether the European Commission can strip legal advice of the confidentiality protections it has under US law, even when that advice was provided by US in-house lawyers in the US. If it can, Europe’s rules would effectively reach beyond Europe’s borders, creating uncertainty for multinational companies and potentially influencing where they locate their legal teams and operations.’
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