The Law Society is seeking to intervene in an EU competition case which it says could have ‘significant implications’ for the protection of legal professional privilege in non-EU settings.
The Commission alleges that Broadcom is abusing its dominant position in several software markets by tying or bundling products and services, charging abusive prices, limiting interoperability and increasing customer lock-in. Broadcom Inc and VMWare International Unlimited Co. v the European Commission raises the question of whether it must recognise and accommodate LPP attaching under the law of a third country to communications between counsel (including in-house counsel) and their clients.
As Gazette columnist and Law Society Council member Jonathan Goldsmith wrote last month, the new features of the case relating to LPP are twofold. First, the Commission is demanding that in-house counsel in the US, who would be able to claim LPP over those documents there, hand them over to the Commission because such privilege does not apply in the EU. Previous cases have long held that LPP is not recognised at EU level for in-house counsel, regardless of whether the privilege is recognised by member states. But with this new order the court is saying that EU rules override local rules in a third country.
Second, the court did not rule on the application of the exclusion to external lawyers in a third country. The usual rule, as stated by the Commission, is that ‘communications between independent lawyers qualified to practise in third countries outside the territory of the European Union and their clients are not privileged under the case-law of the EU Courts’. However, in this case, the Commission exceptionally accepted ‘to exclude from the scope of the contested decision communications to and from all external independent lawyers, including those who are qualified to practise in third countries outside the territory of the European Union, that contain legal advice and related attachments’.
The Society has applied to the EU General Court to intervene in Broadcom. Brett Dixon, vice president, said: ‘Under the laws of England and Wales, legal professional privilege extends to qualifying advice given by solicitors in private practice as well as in-house solicitors. Maintaining the principle of legal professional privilege is important for the protection of the rule of law. People can only communicate fully and honestly with their lawyers if they know that their communications are protected.
’This also applies to communications with in-house lawyers who are required to act with independence under the principles of conduct set by their professional regulator. In-house lawyers play an important role in ensuring their employers stay compliant with laws and regulations in different jurisdictions, and in an increasingly interactive world. The protection of client privilege is critical to the ability of external and in-house solicitors to give independent legal guidance, making sure that the justice system works fairly for everyone.’
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