The company lawyer profession has undergone a seismic shift in the last few decades, transitioning from a straightforward contract negotiator role to a transnational legal expert, risk manager, and a business enabler. An experienced company lawyer and legal department must understand the business operations and processes, the risks involved and the cultural specificities that different markets entail. Businesses today need a well-functioning legal department to ensure success. However, as the evolution has rapid and recent, the company lawyer profession has become fragmented, often without any legal clarity for a position of such responsibility. Not only is there a clear legal distinction between external and in-house counsel in several EEA countries, but the differences influence the Internal Market as a whole.
This necessitates active discussion to contribute towards the evolution of the role, especially concerning the growing number of lawyers that the profession attracts. However, EU case law and several European jurisdictions have split in their view on how lawyers under employment contracts should be viewed. The independence of an in-house counsel is often questioned. In contrast, other European countries and some of our largest external trading partners have put their legal departments under a role similar to that of external counsel, as almost no distinction is drawn between the two positions. There are two primary differences: the ability to join the respective bar association; and the extension of Legal professional privilege (“LPP”) to the profession.
The promotion and protection of the rule of law is one of the fundamental objectives of the European Union and a critical element of its sovereignty. LPP is one essential aspect of the rule of law, allowing clients to share openly all information with the trusted legal advisor of their choice and to receive legal advice and counsel without reservations. LPP encourages “full and frank communication between attorneys and their clients” in order to “promote broader public interests in the observance of law and administration of justice.” This fundamental aspect of the rule of law should apply equally to lawyers working in companies and to external lawyers working in law firms in order to protect the rule of law within the European Union, but also to help European companies compete on a level playing field with those in common law jurisdictions outside the European Economic Area. A majority of EEA member states and most of the OECD countries are already recognize LPP. However, significant exceptions persist in Europe as a whole and in particular in some of the largest European nations. At the same time, at the EEA level LPP is unnecessarily constrained in competition proceedings. These exceptions weaken the rule of law in the EEA and adversely affect the EU’s sovereignty and competitive position.
The right of defence and the right to a fair trial are protected under Articles 48 and 47 of the Charter of Fundamental Rights of the European Union. The freedom to choose one’s trusted counsel to seek legal advice is inherent in the fundamental right to a fair and public hearing before an independent and impartial tribunal, set out in Article 6 of the European Convention on Human Rights and Article 10 Universal Declaration of Human Rights. These principles do not distinguish between external and internal counsel. Therefore, it is not surprising that in addition to a majority of EEA member states and most of the OECD countries, significant legal jurisdictions including jurisdictions in the United Kingdom and the United States recognize and protect LPP as well, irrespective of whether a lawyer works in a law firm or in a company’s legal department. Yet the EU jurisprudence has taken a different view, notably in the AM&S and Akzo cases. There the Court ruled that there can be no legal privilege unless the advice emanates from an “independent lawyer[s]”, meaning one who is not bound to the client by a relationship of employment.
The page here gives a concise overview of company lawyers across Europe and beyond and acts as a preview to our upcoming publication ECLA Yearbook 2023. The report will include the overview of the legal status of company lawyers and include arguments in favour of regime reform.
A major argument against extending legal professional privilege to company lawyers and equating the profession to the same level of professional standards as external counsel concerns the alleged lack of independence that company lawyers experience. This argument was raised at the AM&S case and repeated in Akzo Nobel. However, no real investigation into the alleged lack of independence had been made upon time of deciding on that case. This argument, made in light of competition law investigations, has been expanded under many national jurisdictions to cover all civil litigation matters.
A decade ago, ECLA produced an in-depth White Paper on the topic of independence of company lawyers. The publication provides a critical assessment into the notion of independence supported by a vast number of highly acclaimed legal professionals. In short, the White Paper stresses that the Court’s reasoning for the lack of independence of the in-house counsel profession in AM&S and Akzo Nobel does not reflect reality and is an uninformed position, which does not comprehend how company lawyers operate within their businesses. Restricting the activities of the in-house counsel and creating a contrast between external and internal legal advisers creates divisions between different European jurisdictions, which enables expanding companies to jurisdiction shop, but also decreases the competitiveness of the Internal Market as a whole, given the lack of any such divisions in the United States or in the Commonwealth. The Akzo judgment must be seen as “…a huge missed opportunity to costlessly improve competition compliance across Europe.”
Today, companies consider having legal departments as a vital part of their functioning. Choosing between in-house or external legal support is not always a viable choice in the current dynamic and competitive business environment, which requires companies to act and react quickly and efficiently. In-house counsel are immediately available to provide legal advice to the business, as individuals who are aware of the company’s operations and business processes on an intimate level. This enables them to provide legal advice of the highest quality in an efficient way without having to seek assistance externally each time it is needed.
Due to the increasing complexity of the regulatory, cultural, and sectoral requirements that companies must follow; the company lawyer profession has been an increasingly growing profession in Europe. Furthermore, commercial risks and potential public fallout due to non-compliance with the relevant regulatory requirements or cultural expectations have increased the legal activities in companies even further. This growth of company lawyers will continue, given the increasing developments in numerous fields where corporate legal advice is considered vital, most notably currently in areas concerning the environment, safety, and governance.
Another crucial impact in recent years was the ongoing and even accelerating internationalization of legal challenges, which are a result of both the globalisation and the digitalisation of contemporary business models. This can be illustrated by the global exposure that smaller corporate legal departments as well as mid-size and smaller law firms, experience in contrast to a decade prior.
As a direct result of these changes to the legal environment of companies, the number of lawyers in Europe increased constantly in the last 10-15 years. Today most bar associations report that company lawyers are the fastest growing segment within the legal profession. A statistical approach by the European Company Lawyers Association (ECLA) of 2021 reports that there are approximately 150 000 company lawyers in Europe.
Company lawyers are an integral part of European companies. The increase of importance of this profession to European companies can be seen in the rising number of company lawyers per one billion euros of revenue. Just 16 years ago the Top-150 international companies in Europe reported a ratio of 2,6 company lawyers per one billion euros of revenue. This number increased by 85 % until 2021 to a ratio of 4,8 company lawyers per one billion euros of revenue. When average growth of GDP in the European Union between 2005 and 2021 with 44 % is considered on top of the shown increase in the ratio, the absolute number of company lawyers in the Top-150 international companies in Europe increased by even 165 % and more than doubled in only 16 years.
There is not only a heavier weight of the company lawyers as part of the legal profession, but it is fair to say that the profession of lawyer (in-house and external) and the needs of companies to get legal assistance have changed substantially since the Court of Justice assessed the differences between in-house and external lawyers in AM&S and Akzo. In such regard:
– Corporate legal departments have become much more sophisticated, with reporting structures that enable them to safeguard their independence and effectively cope with conflicts of interests. Nowadays, Chief Legal Officers (CLOs) typically report to the highest-corporate level of management, with in-house lawyers generally having a solid reporting lines into their own legal-function line of command up-to the CLO, with no “structural, hierarchical or functional“ dependency from the business units to which they may legally advise.
Another factor to be considered is that 12% of legal departments today are directly represented with their general counsel as CLOs in their company’s management, by their general counsel being part of the executive committee. More three quarters of the corporate legal departments report directly to the Chief Executive Officer (CEO) of their respective companies.
– The demand for legal assistance by business grows year after year as a consequence of the need to secure compliance with an increasingly complex regulatory framework. And the importance and relative weight of corporate legal departments as providers of legal assistance also increased over the last 15 years with respect to pure financials. This is evidenced by empirical data: In the past, the budget for outside law firms represented the larger share of the legal spending by corporations. Today, more than half of the legal budget is spent in in-house resources and a lower proportion is dedicated to seeking assistance from external lawyers.
– These remarkable trends also lead to increasing mobility of the legal workforce across law firms and corporate legal departments as well as across European borders. Changing jobs between law firms and corporate legal departments has become the norm and lawyers admitted to the bar that practice as outside counsel move in-house and continue performing the same services as before, but only for one client. And particularly now that law firms are organizing not only by practice but by business sectors / industries, it is also frequent to see in-house lawyers moving to law firms to integrate in the specialized legal practice of those industries where they built a deep knowledge as in-house lawyer.
– Traditional law firms are under scrutiny and businesses are looking at partnering with new types of law firms for the provision of legal services under new schemes, where the frontiers between being in-house or external lawyer are blurred. This is the case for instance of the alternative legal services providers to whom companies are outsourcing part of their legal processes or even their almost entire legal function transferring their prior employed in-house lawyers to the legal service provider. Or it is also the case of law firms providing external lawyers into a “secondment” to work full time at client’s offices
– The contractual modalities to work as in-house lawyer do not always correspond with an employment relationship, but in-house lawyers are retained under civil agreements or otherwise special employment relationships. Similarly, external lawyers are currently working more often not under a civil or commercial agreement with their clients or firms, but under an employment relationship with the firms in which they integrate “structurally, hierarchically and functionally” , subject to the instructions and discipline of the partners of the law firm, what may arguably create a potential conflicts of interest and erode the independence of the external lawyer in case a client represents a significant income for the firm. Whilst appropriate safeguards may be established to protect the independence of lawyers employed by law firms, those safeguards do not differ from the same that may be implemented in a company to guarantee that the in-house lawyers are in a position to perform their duties in an independent manner.
– Finally, the current business world is significantly impacted by globalisation, where companies operate at a global scale. Predictably, this results in an evolution on how companies seek legal advice from their legal departments for their global business activities. This is true not only for large multinational groups of companies, but for any businesses competing in a global marketplace, so that the provision of in-house legal services expands its horizon to become cross-border, international, even global, and where a large share of in-house lawyers are now required to provide legal assistance not only to the local entity that directly employed him but to the group of companies operating in a multi-country region or even globally.
All these changes in the legal profession, which concern both company and external lawyers, provide a reasonable basis to justify a revision of the current situation?
The extent to which educational, professional, and cultural mobility within the legal profession in Europe has been disrupted by the lack of harmonising measures can be clearly seen in the German developments in 2014 and 2015. After the Federal Social Court in Germany (Bundessozialgericht) ruling in April 2014 held that company lawyers do not have the same privilege as external lawyer with regards to their retirement funding, the labour market in Germany for lawyers halted until January 2015, when the federal lawmakers amended the respective laws in Germany.
The AM&S and Akzo judgements concerned investigations by the European Commission of an infringement of EU competition law and the application of LPP as a limitation to the powers of inspection attributed to the European Commission either under Regulation 17/62 (AM&S) or Regulation 1/2003 (Akzo).
Neither Regulation 17/62 nor Regulation 1/2003 address LPP. Since there is no tradition of discovery in non-common law European countries, issues of privilege did not arise as often in civil litigation and investigations. In practice, this meant that the question of LPP was left to the relevant EU courts. The Court of Justice handed two major regressive decisions on that end, the AM&S Europe v Commission case in 1982 and the Akzo Nobel decision in 2010.
The AM&S Europe v Commission decision restricted the applicability of legal professional privilege in competition law cases.[1] §21 specifies the applicability of legal professional privilege only for correspondence that concerns the client’s rights of defence and which emanate from independent lawyers. The same paragraph defines independent lawyers as lawyers who are not bound to the client by a relationship of employment.
The second major regressive development for European company lawyers concerns the Akzo Nobel decision in 2010.[2] Both ECLA and the ACCE, intervened at first instance, requesting the judgment under appeal to be set aside and legal professional privilege for in-house lawyers to be upheld. The court repeated the position held under AM&S and, under §44, stated that the requirement of independence means the absence of any employment relationship between the lawyer and his client, so that legal professional privilege does not cover exchanges within a company or group with in-house lawyers. The court also rejected the notion of a violation of the principle of equal treatment, finding that an in-house lawyer does not enjoy a level of professional independence equal to that of external lawyers.[3]
It is important to highlight again that this jurisprudence only applies in the context of competition law investigations – not in other fields of EU law – and only when those investigations are run by the European Commission, not by national competition authorities. In such regard, the Court explicitly accepted the conformity with EU law of applying different national LPP rules in the context of investigations run by the national competition authorities, when providing:
“102. The Commission’s powers (…) may be distinguished from those in enquiries which may be carried out at national level. Both types of procedures are based on a division of powers between the various competition authorities. The rules of professional privilege may, therefore, vary according to that division of powers and the rules relevant to it. (…)
105. Therefore, the principle of legal certainty does not require that identical criteria be applied as regards legal professional privilege in those two types of procedure.”
Notwithstanding the limited intended scope of such decision (powers of investigation of the EC in competition law proceedings), this jurisprudence has, by now, created a division between two modalities of the exercise of the lawyer profession: In-house lawyers on the one hand and external lawyers on the other. It should be stressed, that the American legal system does not differentiate, nor do they separate between these modalities of practice of the legal profession, and that this development has solely taken place at an EEA-level.
The judgment of the Court in Akzo has been devastating for in-house lawyers operating across the EEA, not only for its own findings as applicable to EU competition law proceedings, but because it has been misinterpreted to create the (mis)understanding that legal advice between in-house counsel and their internal client is never protected under LPP across the EU Member States. In fact, it is not strange to find such misconception by national competition authorities and other local enforcement agencies that findings in Akzo can be extended to other fields of EU law other than competition law, and that such jurisprudence applies also to national proceedings where Regulation 1/2003 is not relevant.
However, fortunately, a counter-balancing force to provide an increasing protection of confidentiality of communications between in-house lawyers and their clients is taking place at a country level in multiple EEA member states, such as Belgium, the Netherlands, Hungary, Portugal, Spain or Finland, over the last decade, either by means of legislative action or by means of court enforcement.
At the same time, in a steadily growing number of EEA jurisdictions, relevant authorities have determined that the existence of an employment relationship between a client and their lawyers does not compromise their independence or objectivity of professional judgment and that confidentiality of communications between in-house lawyers and their client must be protected. As such, there have been several significant developments since Akzo Nobel, all of which point towards a more general recognition of LPP for company lawyers. For instance:
- In Robathin v Austria, infringement to an independent lawyer’s correspondence were scrutinised by the lack of notion of necessary in a democratic society, as required by Article 8 ECHR.[4]
- On 5 March 2013 the Court of Appeal of Brussels issued a landmark judgment in the Belgacom case[5], where it recognized that, under Belgian law, legal advice provided by an in-house counsel that is a member of the Belgian Institute for Company Lawyers (IJE/IBJ) benefit from LPP protection. This ruling explicitly stated that the protection of LPP derives from the right to privacy of communications protected under Article 8 of the European Convention of Human Rights (“the Convention”) and Article 7 of the Charter of Fundamental Rights of the EU (“the Charter”).
- A few days later, on 15 March 2013, the Dutch Supreme Court issued its judgment in the Delta case where it upheld LPP for in-house lawyers who are members of the Bar (“advocaat in loondienst”).[6] The Supreme Court held that clients of an employed member of the Bar have the same rights to privilege as clients of external counsel have. The Court declined to follow the Akzo judgment on the grounds that it only applies to EU competition law, and the long-standing practice in The Netherlands has confirmed that the “professional statute” that the employer must sign is sufficient to guarantee both application of the ethical rules promulgated by the Dutch Bar Association and the independence of the in-house counsel member of the Bar. Membership in the Dutch in-house counsel association would not be enough, if the lawyer is not also a member of the Bar with a written statement from the employer that independence will be guaranteed.
As a result of this evolution over last decade, there is a clear trend favoring protection of LPP for company lawyers, which is now acknowledged in a majority of EEA Member States [a total of 16 out of the 30 members], in particular, in Belgium, Cyprus, Denmark, Finland, Germany (with many limitations), Greece, Hungary, Iceland, Ireland, Latvia, Malta, the Netherlands, Norway, Poland, Portugal and Spain. The trend is even more evident, since countries that do not offer LPP to company lawyers yet, were actively discussing a change of their practice very recently, including France, Italy, Switzerland.
Of course, each national legislation presents its own differences when compared with others, but this is also the case when considering LPP for external lawyers, which may be LPP-protected to a different extent in each jurisdiction.
Thus, it is possible to represent that a predominant trend towards protection under legal professional privilege of communications with in-house lawyers can be clearly discerned nowadays in the EEA (and in the more developed economic democracies in the world).
The vast majority of OECD member countries provide for robust LPP protection equivalent for in-house counsel and outside counsel, as illustrated by the following table showing the LPP situation in the European Economic Area and the remaining OECD jurisdictions.
If we limit the comparison to the 38 member countries of the OECD (excluding the 6 countries in the EEA that are not members of the OECD, Bulgaria, Croatia, Cyprus, Lichtenstein, Malta and Romania), we find a significant majority of 24 countries with LPP protection for in-house counsel against 14 countries without it.
There are only 4 OECD countries (outside of the EEA) which do not provide LPP protection to in-house counsel, which merit comment. Switzerland and Turkey are the only 2 OECD members where LPP is provided for external counsel but not for in-house counsel. As noted above in Section 4.1, Switzerland is actively debating a reform to provide LPP to in-house counsel.
As for Japan and South Korea, they are both countries with no tradition of LPP either for in-house counsel or for outside counsel, much like the former Eastern European countries.
These empirical observations show that Europe as a whole and the specific European jurisdictions without LPP protection for in-house counsel are at a comparative disadvantage as compared to a significant majority of OECD countries, which demonstrates the utility of a Europe wide reform on LPP.
As an example of broad reform possibilities, we can point to the adoption recently by the OECD of a recommendation of Transparency and Procedural Fairness in Competition Law Enforcement, which establishes common standards for competition law enforcement and aims to support the impartial and reasonable treatment of investigated parties and the exercise of their rights of defense, especially by considering, developing, updating or strengthening policies regarding the handling of privileged communications between attorneys and clients and respecting applicable legal privileges.[7]
[1] Judgment of 18 May 1982, AM&S Europe v Commission, Case C-155/79, EU:C:1982:157.
[2] Judgment of 14 September 2010, Akzo Nobel Chemicals and Akcros Chemicals v Commission, C-550/07 P, EU:C:2010:512.
[3] Idem, paragraph 56.
[4] Judgment of the European Court of Human Rights of 3 July 2012, Robathin v Austria, no. 30457/06, CE:ECHR:2012:0703JUD003045706.
[5] Judgment of the Brussels Court of Appeals of 5 March 2013, Belgacom, 2011/MR/3.
[6] Judgment of the Dutch Supreme Court of 15 March 2013, X v. Delta and Others, Case 12/02667, ECLI:NL:PHR:2013:BY6101.
[7] OECD, Recommendation of the Council of Transparency and Procedural Fairness in Competition Law Enforcement, OECD/Legal/0465 (2021), available at: https://legalinstruments.oecd.org/en/instruments/OECD-LEGAL-0465 accessed 14 December 2022.
Developments in the field of fundamental rights
First, from the perspective of fundamental rights, the justification of the protection of confidentiality of the communications between a lawyer and client is no longer based only under the client’s rights of defense, but additionally under the fundamental right to privacy of communications and the freedom to conduct a business.
This development derives from the entry into force of the Treaty of Lisbon on 1 December 2009, which amends Article 6 of the Treaty of the European Union with the effect of declaring the Charter of Fundamental Rights of the European Union (“the Charter”) to have the same legal value as the EU Treaties themselves.[1]
Therefore, the Charter becomes legally binding to the institutions of the EU and to the national governments when implementing EU law.
Moreover, the Charter is consistent with the European Convention on Human Rights[2] adopted under the umbrella of the Council of Europe and, when the Charter contains rights that stem from the Convention, their meaning and scope are the same (see Article 52.3 of the Charter).[3]
In this context, it is necessary to note that the right to respect for private and family life contained in Article 7 of the Charter stems from Article 8.1 of the Convention and, as a consequence, must be interpreted as having the same meaning and scope.
Importantly, the European Court of Human Rights (ECHR) considers that, under the Convention, the protection of the confidentiality of the communications between a client and his lawyer is an emanation of the right to privacy (Article 8.1 of Convention, which is mirrored in Article 7 of the Charter)[4] and not only derives from the rights of defense.
In such regard, whilst the right of privacy protects the confidentiality of any communications between individuals, the ECHR has traditionally acknowledged that a strengthened protection is afforded to exchanges between lawyers and their clients and that LPP is specifically protected by Art. 8 of the Convention. This strengthened protection is justified by the fundamental role that lawyers play in a democratic society to provide legal advice and defend their client, which requires that their exchanges remain confidential, and it is also necessarily dependent thereupon in the right to everyone to a fair trial, protected under article 6 of the Convention, which includes the rights of the client not to incriminated himself and the right to defend himself through legal assistance of his own choosing.[5]
The ECtHR has protected LPP under Article 8 in a large number of cases concerning mainly the interception or monitoring of communications between a lawyer or a client and searches and seizures at lawyer’s offices or home, or even the obligation to report certain activities[6]. Whilst it had not yet the opportunity to deal with a case of LPP concerning in-house lawyers, no impediment can be found to make extensive and applicable such jurisprudence to communications with in-house lawyers that are ”qualified and authorized according to the national law to plead and act on behalf of his or her clients, to engage in the practice of law, to appear before the courts or advise and represent his or her clients in legal matters”.[7]
Whether the protection of confidentiality is based under the rights of defense or under the right to privacy have some important practical consequences on the scope of such protection.
Where protection derives from the right of defense, it is generally required that the communication is made “for the purposes and in the interests of the client’s rights of defense”. In the case of competition law investigations by the European Commission, this has been interpreted to cover both communications exchanged after the initiation of the administrative procedure, and also to earlier communications which have a relationship to the subject matter of that procedure.[8]
However, if protection is justified under Article 8 of the Convention (Article 7 of the Charter), then it may be deemed to be more expansive to cover all communications between client and lawyer providing or seeking legal advice, even if not actual or prospective litigation or investigation exists on the subject matter of such advice.
This should not mean that the mere fact that a document has been discussed with a lawyer[9] is not sufficient to give it such protection, but it should cover any lawyer-client communications for the purposes and in the interests of the client’s right to seek legal advice.
Moreover, in connection with the freedom to conduct a business, as protected under Article 16 of the Charter, the CJEU has declared that such freedom includes “the right for any business to be able to freely use, within the limits of its liability for its own acts, the economic, technical and financial resources available to it“[10], among which their in-house legal department may be deemed to be included.
Thus, the management of the company should be permitted to seek legal advice from their in-house lawyers without risking to find their confidential communication being disclosed; otherwise, the company may be obliged “to take measures which may represent a significant cost for [it], have a considerable impact on the organisation of [its] activities or require difficult and complex technical solutions“[11] to guarantee the protection of the confidentiality of its client-lawyer communications, what may contravene its freedom to conduct a business.
Secondary legislation: The GDPR, an analogous precedent of independent employees.
Second, the law of the EU has evolved to recognize in its secondary legislation that professional independence can exist even in situations where the concerned professional is bound by a relationship of employment and that, contrary to what was also defended by the Court in Akzo,[12] the performance of other additional duties by a professional for his employer is not deemed to affect his ability to exercise professional independence or disregard his eligibility for professional secrecy.
In particular, the General Data Protection Regulation[13] in effect since 24 May 2016 and applicable from 25 May 2018, foresees that the data protection officer (DPO) may perform his professional activity with independence notwithstanding being bound by an employment relationship and performing additional unrelated duties.
In such regard, the GDPR provides that the data protection officer “may be a staff member of the controller or processor, or fulfil the tasks on the basis of a service contract“ and “whether or not they are an employee of the controller, should be in a position to perform their duties and tasks in an independent manner“.[14]
Moreover, the GDPR specifically contemplates that employed data protection officers may perform other functions on top of their tasks as data protection officer and that, notwithstanding such situation, they will be eligible and subject to professional secrecy “in accordance with Union or Member State law“ concerning the performance of his specific tasks as data protection officer[15]. Furthermore, professional and other equivalent secrecy obligations act as a limitation to the powers of the supervisory authorities to obtain from the controller o processor access to personal data and access to their premises.[16]
And notwithstanding the existence of all same circumstances that were referred by the Court in Akzo to deny protection of confidentiality for the communications between a client and its in-house lawyer (employment relationship, performance of other tasks which may have an effect on the commercial policy of the undertaking, etc.), the EU legislator understands that his ability to exercise professional independence and avoid conflicts of interests is not disregarded because of being bound by a relationship of employment to the company or performing any additional tasks, but is guaranteed by adopting other structural measures to put them in a position to perform their functions in an independent manner, such as not receiving instructions from his employer regarding the exercise of his professional duties, not being dismissed or penalised for performing his duties and reporting directly to the highest corporate level of management.[17]
The analogies between these provisions and the criteria relied by the Court to disregard the ability of an in-house lawyers member of the Bar or Law Society to exercise professional independence are evident.
The evolution of the jurisprudence of the Court towards a new concept of “independent lawyer“
A recent judgement delivered by the Grand Chamber of the CJEU on 4 February 2020, University of Wroclaw and Poland v Research and Development Agency (REA) (Joined Cases C-515/17 P and C561/17 P) provides a useful overview of the complexity of this issue and a shift on the concept of “independent lawyer“.
This case arose in the narrow context of interpretation of who is included in the term ‘lawyer’ as authorised to represent a party before the CJEU under the third and fourth paragraphs Article 19 of the Statute of the Court of Justice of the European Union, and resulted from a separate action brought by the University of Wrocław before the General Court, where the University was represented by a lawyer working at a law firm and admitted to practice as a lawyer under Polish law, but who was also connected to the University under a civil law contract (not an employment contract) to teach as an external lecturer.
The General Court declared by Order of 13 June 2017 (T-137/16) that the action filed by the University of Wrocław was manifestly inadmissible under the third and fourth paragraphs of Article 19 of the Statute, and Article 51(1) of the Rules of Procedure of the General Court. In particular, following prior CJEU case law, the General Court provided that, although the legal representative of the University of Wrocław was formally qualified as a lawyer under Polish law, he failed to satisfy the required condition of ‘independence’ attached to the concept of ‘lawyer’, because there was a risk that the professional opinion of the legal representative might be influenced, at least in part, by his professional environment.
This Order was appealed against before the CJEU by the University of Wrocław and by Poland.
Advocate General Bobek explained in its Opinion how European law often operates via “jurisprudential transfer” – the mechanism by which a concept developed in one area of law is applied to another, unrelated area -, saying that such transfer often “fosters predictability and the coherence of a legal system as a whole”; however, he had to admit that such jurisprudential transfer of the concept of independent lawyer has not resulted in “exemplar clarity”[18].
Moreover, following the Opinion of Advocate General Bobek[19], the Court no longer relies only on the traditional role of the lawyer as a collaborator of the court who is called upon to provide legal assistance ‘in the interest of the sound administration of justice’[20], but the Court moved to a broader concept and emphasises that, above all, the objective of the task of representation by a lawyer is to protect and defend the interests of the client, acting in full independence and in line with the law and professional ethics rules.
And finally, more importantly, after Advocate General Bobek made some precise observations in its Opinion about the false dichotomy between in-house and external lawyers by providing that “as regards employment relationships, it is unclear what underlying principles serve to differentiate the relationship between an in-house lawyer and his employer from the relationship between an attorney and his (potentially sole or main) client”[21], the Court deviated from its interpretation of “independence” in the AM&S and AKZO cases, where LPP was generally denied for in-house lawyers – whether or not they were members of a national bar – under the assumption that in-house lawyers are not “independent” simply because they are linked by an employment relationship.
In its REA judgment, the Court made a similar reference to negative and positive factors that determine the concept of independence, and enumerated several situations previously addressed by the Court where lawyer independence was compromised. These include when the lawyer is vested with extensive administrative and financial powers that place him or her at a high executive level within the represented organisation; when holding a high-level management position within such legal entity; or when holding shares and chairing the board of administration of the company represented.[22]
In this context, the Court provided a new definition of the lawyer’s duty of independence which does not merely rely on whether the lawyer is linked by an employment relationship, which is ‘to be understood not as the lack of any connections whatsoever between the lawyer and his or her client, but the lack of connections which have a manifestly detrimental effect on his or her capacity to carry out the task of defending his or her client while acting in that client’s interest to the greatest possible extent’.[23]
With this new definition, the classic dichotomy between external vs. in-house lawyer for the purposes of potentially triggering LPP protection may no longer be deemed valid, but the general requirement of independence is to be examined on a case-by-case basis to determine whether the concerned lawyer is deemed to be independent or not. Thus:
- On the one hand, even the communications with an external lawyer ‘made for the purposes and in the interests of the “client’s rights of defence”’ could be eventually excluded from LPP protection if the concerned lawyer is deemed for whatever reasons not to be an ‘independent lawyer’.
- On the other hand, the conditions under which an in-house lawyer admitted to the national bar performs his or her work would be relevant to determine whether he or she is an ‘independent lawyer’. Therefore, the mere existence of an employment relationship should not be sufficient to automatically exclude an in-house lawyer from the definition of an ‘independent lawyer’ such that his or her legal communications are ineligible for LPP protection.
However, from a practical standpoint, it can be easily understood that a concept of a (in-house or external) lawyer’s independence that requires a case-by-case assessment in order to determine the applicability of LPP creates unwelcome legal uncertainty. Therefore, we provide some recommendations in Section 7 below to reduce such legal uncertainty, reduce business costs and promote competitiveness of EU businesses and economies.
[1] Art. 6 of the Treaty of the European Union, as amended, provides as follows:
- The Union recognises the rights, freedoms and principles set out in the Charter of Fundamental Rights of the European Union of 7 December 2000, as adapted at Strasbourg, on 12 December 2007, which shall have the same legal value as the Treaties.
The provisions of the Charter shall not extend in any way the competences of the Union as defined in the Treaties.
The rights, freedoms and principles in the Charter shall be interpreted in accordance with the general provisions in Title VII of the Charter governing its interpretation and application and with due regard to the explanations referred to in the Charter, that set out the sources of those provisions.
- The Union shall accede to the European Convention for the Protection of Human Rights and Fundamental Freedoms. Such accession shall not affect the Union’s competences as defined in the Treaties.
- Fundamental rights, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms and as they result from the constitutional traditions common to the Member States, shall constitute general principles of the Union’s law.
[2] The Convention for the Protection of Human Rights and Fundamental Freedoms, better known as the European Convention on Human Rights, was opened for signature in Rome on 4 November 1950 and came into force in 1953. Since its adoption in 1950 the Convention has been amended a number of times and supplemented with many rights in addition to those set forth in the original text.
Last amendment, operated by means of Protocol No. 16 to the Convention, which came into force on 1 August 2018 in respect of the States which have signed and ratified it, allows the highest courts and tribunals of a State Party to request the European Court of Human Rights to give advisory opinions on questions of principle relating to the interpretation or application of the rights and freedoms defined in the Convention or the protocols thereto. Whilst these advisory opinions are not binding to the requesting court or tribunal, this new procedure may be useful for the highest national court or tribunal to obtain guidance, for instance, on the extension of applicability of art. 8 of the Convention to protect not only confidentiality of communications exchanged between a client and an external lawyer, but also with an internal lawyer.
[3] Art. 52.3 of the Charter, which is part of the general provisions in Title VII referred in third paragraph of Art. 6.1 TEU, provides as follows:
- In so far as this Charter contains rights which correspond to rights guaranteed by the Convention for the Protection of Human Rights and Fundamental Freedoms, the meaning and scope of those rights shall be the same as those laid down by the said Convention. This provision shall not prevent Union law providing more extensive protection.”
[4] The following provisions of the Charter and the ECHR are relevant:
European Convention of Human Rights:
Art. 8.- Right to respect for private and family life
- Everyone has the right to respect for his private and family life, his home and his correspondence.
- There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others
Charter of Fundamental Rights of the EU:
Art. 7 – Respect for private and family life
Everyone has the right to respect for his or her private and family life, home and communications.
Art. 52 – Scope of guaranteed rights
- Any limitation on the exercise of the rights and freedoms recognised by this Charter must be provided for by law and respect the essence of those rights and freedoms. Subject to the principle of proportionality, limitations may be made only if they are necessary and genuinely meet objectives of general interest recognised by the Union or the need to protect the rights and freedoms of others.
[5] The Charter specifically protects the right to an effective remedy and to a fair trial under Article 47 [“(…) Everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal previously established by law. Everyone shall have the possibility of being advised, defended and represented”] and the right of defence under Art. 48.2 (“Respect for the rights of the defence of anyone who has been charged shall be guaranteed”).
[6] For a listing of cases dealt by the ECHR in connection with legal professional privileged, see: https://www.echr.coe.int/Documents/FS_Legal_professional_privilege_ENG.pdf
[7] This is precisely the definition of lawyer that is contained in the Recommendation No. R (2000) 21 of the Committee of Ministers to Member States on the freedom of exercise of the profession of lawyer (adopted by the Committee of Ministers on 25 October 2000 at the 727th meeting of the Ministers‘Deputies).
[8]Judgment of 18 May 1982, AM&S Europe Limited v. Commission of the European Communities, Case 155/79, EU:C:1982:157, paragraphs 21-23 and 27.
[9] Judgment of 14 September 2010, Akzo Nobel Chemicals Ltd and Akcros Chemicals v. European Commission, Case C-550/07 P, EU:C:2010:512, paragraph 123, which also acknowledges that “preparatory documents, even if they were not exchanged with a lawyer or were not created for the purpose of being sent physically to a lawyer, may none the less be covered by LPP, provided that they were drawn up exclusively for the purpose of seeking legal advice from a lawyer in exercise of the rights of the defence.”
[10] Judgment of 27 March 2014, UPC Telekabel v Constantin Film, C-314/12, EU:C:2014:192, paragraph 49.
[11] Idem, paragraph 50.
[12] Judgment in Akzo, paragraph 48: “(…) an in-house lawyer may be required to carry out other tasks, namely, as in the present case, the task of competition law coordinator, which may have an effect on the commercial policy of the undertaking. Such functions cannot but reinforce the close ties between the lawyer and his employer.”
[13] Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation). OJ L 119, 4.5.2016.
[14] GDPR, see recital 97 and Article 37.6.
[15] GDPR, see Article 38.5
[16] GDPR, see recital 164 and Article 90.
[17] GDPR, see Article 38.3.
[18] REA, paragraphs 51 and 52.
[19] REA, paragraph 104.
[20] AM&S, paragraph 24 and Akzo, paragraph 42.
[21] REA, paragraph 62.
[22] See judgment of 4 February 2020, University of Wrocław and Poland v Research and Development Agency (REA), Joined Cases C‑515/17 P and C‑561/17 P, EU:C:2020:73, paragraph 65.
[23] Idem, paragraph 64.
The Status of Company Lawyers Across Europe
Austria
Company lawyers in Austria are not recognised by law and their communications and the legal advice they provide to their employers are not protected by legal professional privilege (LPP). Under Austrian labour law, employees are generally obligated to keep internal communications and business strategy confidential, but this obligation can be waived in the context of an official investigation.
What is the word for “company lawyer” in German?
Unternehmensjurist.
Is the title of “company lawyer” officially recognised by law?
No, the profession of company lawyers is not recognised by Austrian law.
Are company lawyers required/permitted to register with the bar?
No. Lawyers are not allowed to register/remain registered with a regional bar association when they are in a full-time employment relationship with a company other than a law firm.
Are communications and advice provided by company lawyers covered by legal professional privilege?
No. Article 9 (2) of the Lawyer’s Act (Rechtsanwaltsordnung) only extends the protection of legal professional privilege to (external) attorneys who are members of a regional bar association.
How many company lawyers are estimated to be in Austria?
As of the end of 2019, it is estimated that there are around 4,000 company lawyers
practising in Austria.
Company lawyers in Austria
Company lawyers in Austria are not recognised nor regulated by law. To be able to practise as an independent attorney (Rechtsanwalt), lawyers must become members of one of the nine regional bar associations (Rechtsanwaltskammern). To be able to register with the Austrian Bar, independence of the lawyer must be guaranteed. There is no special legal status for in-house counsel in Austria. Attorneys (Rechtsanwälte) may fulfil the role of in-house counsel, but to maintain their accreditation with the bar, they may not become full-time employees of the companies they serve.
Legal professional privilege
Company lawyers in Austria cannot claim the protection of legal professional privilege, as only independent attorneys registered with the Austrian bar association (Rechtsanwälte) have the right to refuse testimony in court, provided the necessary conditions are met. There are no specific legal provisions protecting communications between company lawyers and other employees within a company. In-house lawyers are not allowed to represent their company in court. However, Austrian labour law establishes a general duty of loyalty of employees towards their employer. In practice, this means that counsel are obliged to protect their company’s business interests, preventing them from disclosing relevant information concerning the enterprise to external third parties. Internal communications between in-house counsel and other employees of a company are also subject to a general duty to keep internal matters confidential, provided this is in the employer’s interest. Such obligations, however, are usually waived if employees are called as witnesses in legal proceedings. LPP does not apply in cases of money laundering, and attorneys are obliged to inform the Office of Criminal Investigation of any well-founded suspicions in this regard, unless they learn of them during court proceedings, or in preparation thereof. In the event of a search conducted by a public authority, the defendant (a natural person or a company), may object to the seizure of privileged communication and request that all such communication is sealed and separately stored with the court, which then decides which documents are privileged and must be returned to the defendant.
Belgium
The profession of company lawyers has been officially recognised and regulated in Belgium for over 20 years and the legal advice they provide is generally confidential, including all advice related to internal investigations, draft opinions, and preparatory documents.
What is the word for “company lawyer” in French and Dutch?
Juriste d’entreprise/Bedrijfsjurist.
Is the title of “company lawyer” officially recognised by law?
Yes, since the year 2000, company lawyers are officially recognised as a specific legal profession.
Are company lawyers required/permitted to register with the national bar?
No, they cannot register with one of Belgium’s regional bar associations. In-house counsel must however be listed on the official record of company lawyers maintained by the Belgian Institute for Company Lawyers.
Are communications and advice provided by company lawyers covered by legal professional privilege?
Yes, in-house counsel can benefit from legal professional privilege, provided they are members of the Belgian Institute for Company Lawyers.
How many company lawyers are estimated to be in the country?
As of the end of 2019, there were approximately 3,100 in-house lawyers practising in Belgium.
Recent case law and developments
In 2013, the Brussels Court of Appeal confirmed that the confidentiality of in-house legal advice applies in the context of national competition investigations, including requests for internal legal advice, as well as draft opinions and preparatory documents.[1] In 2017, Brussel’s Court of First Instance rejected a request to seal all documents seized from a company lawyer’s laptop during an impromptu tax audit, as it found that, in this specific case, the plaintiff had not demonstrated the link between the contentious information and the concrete application of LPP.[2]
Company lawyers in Belgium
Company lawyers have been officially regulated and recognised in Belgium since 1 March 2000, when legislation was adopted to create the Belgian Institute for Company Lawyers (IBJ/IJE), a regulatory body responsible for establishing the ethical and professional rules governing the profession and ensuring the compliance of their members. While in-house counsel cannot be members of Belgium’s regional bar associations, they are recognised as fully qualified legal professionals and governed by an independent body and are prescribed ethical requirements. The Belgian Parliament introduced a legislative proposal in 2021 to modernize the company lawyer profession and reinforce LPP. In 2022, the Ministry of Justice also showed its willingness to modernize the profession of the company lawyer.
Company lawyers in Belgium
Company lawyers have been officially regulated and recognised in Belgium since 1 March 2000, when legislation was adopted to create the Belgian Institute for Company Lawyers (IBJ/IJE), a regulatory body responsible for establishing the ethical and professional rules governing the profession and ensuring the compliance of their members. While in-house counsel cannot be members of Belgium’s regional bar associations, they are recognised as fully qualified legal professionals and governed by an independent body and are prescribed ethical requirements. The Belgian Parliament introduced a legislative proposal in 2021 to modernize the company lawyer profession and reinforce LPP. In 2022, the Ministry of Justice also showed its willingness to modernize the profession of the company lawyer.
Legal professional privilege
Pursuant to Article 5 of the Law of 2000, the legal advice provided by company lawyers to their employer in their capacity as legal counsel is considered confidential. The title of “company lawyers” is exclusively reserved to
members of IBJ/IJE under Article 6. In-house counsel in Belgium can only benefit from LPP if they are also members of this professional association, as was confirmed in the Belgacom case.[3] The protection of LPP derives from the right to privacy of communications protected under Article 8 of the European Convention of Human Rights and Article 7 of the Charter of Fundamental Rights of the EU.
In 2015, to promote the correct application of this law within a corporate environment, a decision of the Belgian Cassation Court highlighted that the special status conferred upon Belgian company lawyers and the confidentiality of their legal advice should be considered a matter of public interest.[4] This confidentiality is however not absolute – parties cannot abstractly invoke legal privilege for all documents found, for example, on the laptop of a company lawyer, but must be able to demonstrate a “concrete link” between the supposed confidential information and the application of LPP. This can be accomplished for example by creating a list containing a brief description of the allegedly privileged documents.
The confidentiality afforded to company lawyers is different than the general duty of secrecy to which external attorneys are bound. While external attorneys are held liable under criminal law for any infringement of their duty of professional secrecy under Article 458 of the Criminal Code, this provision does not apply to breaches of confidentiality committed by company lawyers. This distinction has recently led experts to call for the two concepts to be unified and regulated under the same regime to make all breaches of legal confidentiality punishable pursuant to Article 458.
[1] Cour d’appel de Bruxelles, 18e chamber, 5 March 2013.
[2] Tribunal de première instance francophone de Bruxelles, Section Civile 16/7372/A.
[3] Judgment of the Brussels Court of Appeals of 5 March 2013, Belgacom, 2011/MR/3.
[4] Cass., 22 January 2015, J.T.
Croatia
Company lawyers in Croatia are not recognised as fully qualified lawyers. They are not permitted to register with the bar association and do not generally benefit from legal professional privilege (LPP). However, exceptions are possible where in-house counsel act in the capacity of an attorney under certain labour law regulations.
What is the word for “company lawyer” in Croatian?
Korporativni pravnik.
Is the title of “company lawyer” officially recognised by law?
No, the profession of company lawyers is not recognised nor regulated by Croatian law.
Are company lawyers required/permitted to register with the national bar?
No, the Croatian Lawyers Act specifically prevents people who are employed by a legal entity other than a law firm from registering with a bar association.
Are communications and advice provided by company lawyers covered by legal professional privilege?
No – LPP has its legal basis in the Croatian Lawyers Act and is only applicable to Bar-accredited attorneys.
How many company lawyers are estimated to be in the country?
There are no official numbers, but it is estimated there are approximately 1,000 company lawyers currently practising in Croatia.
Company lawyers in Croatia
Company lawyers are not recognized as a specific category of legal professionals under Croatian law. It is possible however for in-house lawyers to represent their employer in court, as the right of representation in legal proceedings is generally recognized for all employees under Croatian labor law. However, in cases where the value of the dispute exceeds 50,000 Kuna (approximately 6,720 euros), company lawyers are only allowed to stand in court if they have previously passed the bar examination. Since 2007, Udruga korporativnih pravnika, the largest organization representing company lawyers in the country, also requires having successfully passed the bar examination as a pre-condition for membership, in an effort to harmonise the status of in-house and external lawyers and to demonstrate the fundamental comparability of the two functions.
Legal professional privilege
Under the current law, communications and legal advice provided by in-house lawyers are not covered by legal professional privilege. As LPP is rooted in Article 13 of the Croatian Lawyers Act, as well as in the Attorneys’ Code of Ethics, both are applicable only to lawyers included on the list of attorneys maintained by the local bar associations. In addition, rules on legal professional privilege under statutory provisions refer only to communications with lawyers (odvjetnik).[1]
However, when authorized by power of attorney to represent their employer in court, in-house lawyers may act in the capacity of an attorney, which means that the information they acquire from their employer in that context is partially protected by LPP. In those circumstances, in-house counsel may legally refuse to testify as a witness in civil and criminal proceedings regarding such information, which includes pertinent communications and advice, in accordance with the same conditions applicable to an external attorney.[2] Nevertheless, as an exception to this general rule, any legal advice given by a company lawyer to their employer in the context of an investigation by the EU Commission for Competition or Agencija za zaštitu tržišnog natjecanja, the Croatian Competition Agency, is never protected by legal professional privilege, as the courts apply the Akzo Nobel ruling of 2010.
[1] https://www.dlapiperintelligence.com/legalprivilege/insight/index.html?t=scope
[2] See Ana Tudorić Mejovšek et al., Legal Privilege & Professional Secrecy – Croatia (2016).
Czechia
Company lawyers are not regulated as a specific legal profession in the Czech Republic, although the law does recognise the right of employees to provide legal services to their respective employer. Legal services of this kind are not, however, protected by legal professional privilege (LPP).
What is the word for “company lawyer” in Czech?
Podnikový právník.
Is the title of “company lawyer” officially recognised by law?
No, the profession of company lawyers is not recognised by Czech law.
Are company lawyers required/permitted to register with the national bar?
No, as they do not fulfil the conditions to register with Česká advokátní komora, the Czech Bar Association.
Are communications and advice provided by company lawyers covered by legal professional privilege?
No, as the rights and obligations set out in Act No. 85/1996 Coll. on the Legal Profession only extends LPP to attorneys registered with the bar.
How many company lawyers are estimated to be in the country?
There are no official numbers, but it is estimated that there are approximately 2,000 in-house
lawyers currently working in the Czech Republic.
Company lawyers in the Czech Republic
Company lawyers are not recognised as fully qualified lawyers under Czech law, as Section 5 of the Act on the Legal Profession prevents individuals in a relationship of service or employment with legal entities other than a law firm from registering with the Register of Lawyers. Nevertheless, Section 2 of the law does allow employees of legal persons to provide legal services to their employer, where the term “legal services” should be understood as “representing clients in proceedings before courts and other bodies, acting as a defence lawyer in criminal cases, giving legal consultations, preparing documents, legal analyses and other forms of legal aid”.[1] Despite the general right to represent their employer in court, it should be noted that company lawyers cannot take part in legal proceedings before the Supreme or Constitutional courts.
Legal professional privilege
Legal professional privilege is a long-standing principle in the Czech legal tradition, as the first explicit mention of it can be traced back to Austrian Act No. 96/1868, which states in Section 9: “The lawyer is obligated to maintain secrecy in the cases entrusted to them”. Contemporary Czech law draws a strict, albeit implicit, distinction between internal and external counsel in the area of legal professional privilege. Pursuant to Section 21 of the Act on the Legal Profession, only advocates (advokáti), i.e. members of the Czech Bar Association, are subject to the right and obligation not to divulge any information obtained when providing legal services in their capacity as attorneys. There is no general legal provision regarding the applicability of LPP to communications and advice provided by corporate lawyers, although these may be subject to a special duty of confidentiality and non-disclosure for in-house counsel working for state organisations or regulated businesses.[2] The reason for this distinction is that company lawyers are traditionally viewed as lacking the independence of external attorneys since their position depends on an employment relationship in which they fulfil work obligations according to the instructions of their employer, and they are financially dependent on the employer and therefore considered “loyal” to them.[3] It should also be noted that Article 6 of the Code of Ethics of the Czech Company Lawyers Association obliges members of the Association to observe the confidentiality of matters of which they learned in the course of their activity as in-house lawyers, although this obligation does not apply where the law imposes an obligation to disclose such confidential information.
[1] See Act No. 85/1996 Sb. of 13th March 1996 on the Legal Profession
[2] See Lex Mundi Multi-Jurisdictional Survey, In-House Counsel and The Attorney-Client Privilege, Czech Republic (2007)
[3] Jiří Plachý, Bulletin-advokacie.cz, Legal professional privilege as an institute of confidential communication protection (2013)
Denmark
Company lawyers are not regulated as a specific legal profession in Denmark, although they are allowed to be members of the bar while being employed as in-house counsel. In the absence of specific legal provisions, it is currently unclear whether their communication and advice can be covered by legal professional privilege (LPP).
What is the word for “company lawyer” in Danish?
Virksomhedsjurist.
Is the title of “company lawyer” officially recognised by law?
No, as the law does not regulate access to or exercise of the in-house profession.
Are company lawyers required/permitted to register with the national bar?
Yes, as no legislative provisions specifically prevent in-house lawyers from becoming members of the Advokatsamfundet, Denmark’s National Bar Association.
Are communications and advice provided by company lawyers covered by legal professional privilege?
Yes – even no relevant case law has been developed opposing this. Coupled with the fact that there are no significant restrictions on in-house counsel being members of the Bar, this indicates for advice by registered in-house counsel to fall under the scope.
Company lawyers in Denmark
Certified lawyers under Danish law who are employed as in-house legal counsel are allowed to keep the title and therefore the qualification of a lawyer. As they are not regulated as a distinct legal profession, company lawyers can be fully qualified lawyers under Danish law. Chapter 12 Section 119 of the Administration of Justice Act, which regulates the conditions under which attorneys can be appointed by the Minister of Justice, does not contain any specific provision preventing individuals practising law within a relationship of employment from becoming advokater. It is also possible for an individual to work as an in-house counsel without holding the qualification of advokat and without being a member of the bar. In general, when they are registered attorneys, company lawyers are subject to the same ethical and professional requirements as private practice attorneys, including Section 126 of the Danish Code of Civil Procedure, which provides good practice guidelines for all legal professionals. They are also subject to the disciplinary supervision of the Danish Bar Association. In the event that they receive instructions from their employer which contradict their legal obligations, company lawyers are expected to comply with the statutory legal rules rather than their general duties under employment law.
Legal professional privilege
It is not currently clear whether or not the communications and legal advice provided by company lawyers in Denmark are covered by legal professional privilege. Since the Administration of Justice Act draws no distinction between the rights and obligations of external and internal counsel, including on the matter of professional secrecy, it could be presumed that in-house lawyers who are also members of the bar association benefit from LPP in accordance with the same conditions as private practice attorneys. However, in cases where company lawyers are not registered attorneys, the provisions on professional secrecy would not be applicable. This has led to uncertainty on the subject, as in practice corporate legal departments employ both types of qualified attorneys to work side-by-side as “regular” legal counsel, making it extremely difficult to establish the origin of any given document or communication. This has led to divergent opinions on the matter, with some believing that legal privilege applies when the company lawyer is also a member of the bar. Others hold that as all in-house lawyers take instructions from their employer, they do not fulfil the independence requirement and therefore cannot generally benefit from LPP.
England & Wales
Legal professional privilege (LPP) is a long-developed concept and is considered a legal right central to litigation under English law. Company lawyers are recognised by law and can provide legal advice as long as their activities fall under the scope of their employment.
What is the term used to designate company lawyers in England and Wales?
In-house counsel / General Counsel / Head of Legal…
Is the title of “company lawyer” officially recognised by law?
Yes, in-house lawyers in England and Wales can be both solicitors and barristers, provided they fulfil the necessary conditions.
Are company lawyers required/permitted to register with the national bar?
Yes, in-house solicitors may be admitted to the roll of solicitors in England and Wales, kept by the Solicitors Regulation Authority (SRA); similar registration is required for other qualified lawyers.
Are communications and advice provided by company lawyers covered by legal professional privilege?
Yes, provided they are suitably qualified in-house lawyers, they share the same rights and obligations as private practice solicitors.
How many company lawyers are estimated to be in the country?
As of 2019, there were approximately 27,000 in-house lawyers in England and Wales.
Recent case law and developments
After a controversial High Court’s judgment in 2017, the Court of Appeal shed some light on the issue of the “scope” of both litigation privilege and legal advice privilege. While it confirmed litigation privilege applies to communications made with the intention to avoid criminal proceedings, the decision left the door open for the Supreme Court to possibly review and extend the scope of legal advice privilege in the future.
In addition, a judgment in 2021 clarified that foreign in-house lawyers, who originate from countries where there is a legal distinction between in-house and external counsel can claim legal advice privilege while working in England and Wales, even if their home country prohibits the scope of privilege[1].
Company lawyers in England and Wales
Company lawyers are fully recognised by law under the jurisdictions of England and Wales, where they are members of the Law Society of England and Wales and largely share the same rights and obligations of external solicitors. In-house lawyers however are not generally allowed to provide legal advice to individuals.
Pursuant to the in-house section of the SRA Handbook, solicitors must act only on behalf of their employers and their legal work must arise out of the work of their company’s employees or otherwise related individuals, such as managers, board members, trustees, or contributors. Company lawyers are also allowed to conduct work on a pro bono basis and can work as legal advisors in associations, local governments, and other public bodies.
Legal professional privilege
LPP is widely recognised as a “fundamental condition on which the administration of justice as a whole rests”. The concept of legal professional privilege can be distinguished into two types: Legal Advice Privilege (LAP) and Litigation Privilege (LP). LAP protects communications between lawyers and clients, but not communications with third parties. The protection under LAP is only applicable if the purpose of the communication is to give or receive legal advice, regardless of whether litigation is already ongoing. LP covers all confidential communications, including the communication made to or from a third party if they are made for the purpose of litigation.
Recent developments
There are limits to the scope of both legal advice privilege and litigation privilege that in-house counsel can enjoy in England and Wales. The dominant purpose test requires correspondence between a lawyer and their client to have either giving or obtaining legal advice as the primary goal.[2] For this purpose, it is standard practice to separate correspondence on legal and commercial input.
Since Brexit, UK-based lawyers are no longer subject to the jurisdiction of the European Commission, making UK-based lawyers, who have not been admitted to practice in the European Economic Area as lawyers, third country lawyers. A ‘third country lawyer’ is any lawyer without legal qualification in the European Union but legally qualified to practice law outside of the European Union. Unlike a lawyer from the European Union, a third country lawyer is no longer capable of relying on EU LPP and therefore must be aware when advising a client on cross-border EU cases or when practicing as a UK lawyer in the EU, as their legal advice will not be protected by LPP.
The rules in the jurisdiction of England and Wales do not distinguish between advice given from an external or an internal foreign lawyer.[3] In addition, national rules do not require foreign lawyers to be regulated as ‘independent professional lawyers’, making Legal Advice Privilege applicable to in-house lawyers based in an EU Member State where LPP has not been extended to in-house counsel.
[1] Bogolyubov & Ors [2020] EWHC 2437
[2] Jet2.com Ltd v Civil Aviation Authority (2020) 2 WLR 1215)
[3] PJSC Tatneft v Bogolyubov and others (2020) EWHC 2437
Estonia
Company lawyers are not officially recognised under Estonian law and are prevented from registering with the national bar association. Consequently, in-house counsel do not benefit from legal professional privilege (LPP), although their communications and advice can be protected from disclosure if they are part of correspondence with an external attorney.
What is the word for “company lawyer” in Estonian?
Ettevõtlusjurist
Is the title of “company lawyer” officially recognised by law?
No, the profession of company lawyers is not recognised or regulated by Estonian law.
Are company lawyers required/permitted to register with the national bar?
No. The Estonian Bar Association Act considers being subject to an employment contract or contract of service as grounds for refusal of membership to the Eesti Advokatuur, Estonia’s bar association.
Are communications and advice provided by company lawyers covered by legal professional privilege?
No, as legal professional privilege only applies to law offices, lawyers who are members of the bar or employees of the bar association.
How many company lawyers are estimated to be in the country?
There are no official numbers available, but the latest estimation places the total number of company lawyers in the country at around 500, compared to 1,028 lawyers who are members of the bar association.[1]
Company lawyers in Estonia
Estonian law does not recognise company lawyers as a distinct legal profession and does not specifically regulate them. According to Section 27 (4) of the Bar Association Act, the simple fact of being in a relationship of employment or service is sufficient to be refused admission to the bar, which of course includes the framework in which in-house lawyers typically conduct their professional activities. This stems from the concern that such a hierarchical relationship would not guarantee sufficient independence to company lawyers and would not allow them to meet the requirements for the professional ethics expected from attorneys. Although company lawyers can represent their employer in court proceedings, representation to the Supreme Court – which in Estonia acts both as a cassation and a constitutional court – is reserved for external lawyers who are members of the bar.
Legal professional privilege
The protection provided by legal professional privilege does not extend to communications between in-house counsel and officers, directors or employees of the companies they work for. Pursuant to Article 43 (2) of the Bar Association Act, only lawyers registered with the bar and employees of the bar association or of a law office can legally refuse to give testimony about matters which they became aware of while providing legal services to their clients. Consequently, in case of a public authorities’ investigation, only communications between in-house lawyers and external attorneys will be protected by LPP. However, where an internal document or communication between an inhouse counsel and their employer is transmitted to an independent external lawyer, its content can fall under the scope of LPP, provided that the related information and/or document have been placed in a separate file which is clearly labelled as related to communications with a law firm, thus preventing the disclosure of its contents in a court of law. Company lawyers who are members of the Eesti Juristide Liit MTÜ (EJL), the Estonian Lawyers Union, are nevertheless bound by the Association’s Code of Ethics, which requires them to respect the confidentiality of information they acquire in their professional capacity, but only if the disclosure.
[1] CCBE Lawyers’ Statistics 2018
Finland
Company lawyers in Finland are not regulated as a specific legal profession and they do not generally benefit from legal professional privilege (LPP). They may, however, refuse to testify and legally withhold evidence if the information in question has been acquired through correspondence with a company’s client in relation to a lawsuit.
What is the word for “company lawyer” in Finnish?
Yrityksen asianajaja
Is the title of “company lawyer” officially recognised by law?
No, the profession of company lawyers is not recognised nor regulated by Finnish law.
Are company lawyers required/permitted to register with the national bar?
No, as registration with the Suomen Asianajajaliitto, the Finnish National Bar Association, is deemed incompatible with any employment relationship, with very few exceptions.
Are communications and advice provided by company lawyers covered by legal professional privilege?
No, as the benefit of legal professional privilege is only extended to bar-registered attorneys, asianajajista.
How many company lawyers are estimated to be in the country?
It is estimated there are approximately 2,900 company lawyers currently working in Finland.
Company lawyers in Finland
The profession of company lawyers is not recognised nor regulated under Finnish law, and their status is not equal to that of external attorneys. As a matter of fact, Sections 3 and 5 of the Advocates Act of 1958 state that, to be eligible to register as a lawyer, asianajajaksi, there can be no employment relationship with a legal entity other than a law firm, and more generally the lawyer cannot engage in
any occupation “that may be presumed to adversely affect their independence as a lawyer”. The law does provide for limited exceptions to this rule, as the Executive Board of the Bar Association has the power to allow the registration of an employed lawyer for special reasons, which must be justified by the candidate. When applying to the bar, lawyers in an employment relationship must also provide a statement attesting that the legal profession is not contrary to their duties, clarify what their duties entail, as well as provide their supervisor’s opinion on this matter, pursuant to Section 6 of the bylaws of the Finnish Bar Association. This possibility should however be interpreted narrowly, as most company lawyers currently practising in Finland are not registered with the Asianajajaliitto.
Legal professional privilege
Under Finnish law company lawyers do not benefit from legal professional privilege. Indeed, both Section 5c of the Advocates Act of 1958 and Chapter 17, Section 13 of the Code of Judicial Procedure, which respectively deal with attorney-client confidentiality and the prohibition against lawyers testifying in court, only apply to asianajajista, licensed attorneys who are members of the bar association. While it is clear from the Code of Judicial Procedure that only independent, non-employee lawyers benefit from legal professional privilege regarding communications produced in connection with tasks other than legal proceedings – i.e., legal advice – the situation is not entirely clear regarding the cases where in-house lawyers were to act in their capacity as legal counsel of the employer in the context of legal proceedings.[1]
Section 38(3) Competition Act enables undertakings to refuse to deliver to the Finnish Competition Authority documents which contain confidential correspondence between an outside legal consultant and the client specifically. However, in-house counsel is legally allowed to refuse testimony and object to the confiscation of documents when these actions relate to information obtained through correspondence with a company’s client in connection with a lawsuit, which has been handled by internal counsel as a part of their employment contract.[2]
[1] DLA Piper Global Guide on Legal Professional Privilege (2019).
[2] Lex Mundi Multi-Jurisdictional Survey, In-House Counsel and The Attorney-Client Privilege, Finland (2007)
France
Company lawyers in France are recognised – but not regulated – by law, and do not have the same rights and obligations as external attorneys. They currently do not benefit from legal professional privilege (LPP), but recent developments seem to indicate a possible legislative shift on this issue.
What is the word for “company lawyer” in French?
Juriste d’entreprise.
Is the title of “company lawyer” officially recognised by law?
Yes and no. Since 1971 French law has recognised company lawyers as a distinct legal profession, but it does not regulate the conditions for becoming an in-house counsel or provide for specific ethical and deontological rules.
Are company lawyers required/permitted to register with the national bar?
Yes and no. Company lawyers are not permitted to register with a local bar association in their capacity as corporate counsel, but they can apply to be admitted as (external) attorneys after eight years of practising in-house without having to pass the standard bar examination.[1]
Are communications and advice provided by company lawyers covered by legal professional privilege?
No, as the law currently recognises the benefit of legal professional privilege only for bar-certified avocats (attorneys).
How many company lawyers are estimated to be in the country?
According to a study conducted by the French Company Lawyers Association, Cercle Montesquieu and the IPSOS Group, as of the end of 2017 there were over 17,000 company lawyers working in France.
Recent case law and developments
A parliamentary report published in June 2019 seems to have paved the way for recognition of legal professional privilege for company lawyers. The report supports the recognition of LPP for in-house legal advice as a tool for protecting both the French economy and sovereignty, putting the country’s corporations on an equal footing with most of France’s international partners – where company lawyers already enjoy better legal protection.
Company lawyers in France
French law recognises in-house lawyers as a specific category of legal professionals, explicitly allowing them to provide legal advice to the exclusive benefit of the company for which they work.[2]
Nevertheless, company lawyers are not equal to external attorneys in the eyes of the law, as they are not allowed to join a local barreau (bar association) in their capacity as corporate counsel and are not considered to be part of a “regulated” profession. According to a study conducted in 2017 by the two main professional associations representing company lawyers in France,[3] there was a 7% increase in the number of in-house counsels in the country between 2010 and 2017, showing the growing attractiveness of the profession for both lawyers and corporations. Moreover, 60% of the surveyed corporate legal departments report directly to the general management, demonstrating the increasingly strategic role they play in the company’s undertakings.
Legal professional privilege
Company lawyers in France do not currently benefit from LPP, which is reserved for the legal services provided by external, bar-certified attorneys. Nevertheless, after over thirty years of work and a failed reform attempt in 2015, it appears that France may be approaching a turning point on the issue of legal professional privilege for in-house lawyers. On 26 June 2019, a parliamentary report authored by MP Raphael Gauvain recommended the adoption of legal provisions to protect the confidentiality of legal advice provided by company lawyers to defend French economic interests on the international stage. Since in-house lawyers working in France do not enjoy the same level of legal protection as their international colleagues, the report found that corporations often find themselves at an unfair disadvantage when faced with legal proceedings in foreign countries, which ends up costing them – and thus the French economy – billions of euros in losses. According to Gauvain’s recommendations, company lawyers would be registered in an ad hoc list maintained by the local bar associations, which would subject them to deontological obligations, protect their independence, and place their legal advice under the protection of LPP in case of investigations. In-house counsel would nevertheless maintain their status of regular employees under labour regulations and would still not be authorised to represent their employer in
a court of law. This sentiment was reflected in 2020 by Eric Dupond-Moretti in this inaugural speech as the French Minister of Justice, who proposed strengthening LPP.
On 26 of January 2022, the French Cour de Cassation clarified what falls within the scope of professional secrecy under French law.[4] It held that even if correspondence is not from or addressed to a lawyer, if it repeats a defence strategy put in place by the outside counsel, legal privilege must be extended to such documents and correspondence. This decision follows the consistent reasoning of the Cour in recent case law, whereby communications exchanged between a lawyer and their client can be seized within the scope of Article L450-4 of the French Commercial code, if the seizure does not infringe upon the exercise of the rights of the defence.[5] The decision respects the right of companies to internally discuss the substance of their legal defence without fear of their defence losing the appropriate professional secrecy rules.
[1] Article 98(3), Décret n°91-1197 du 27 novembre 1991 organisant la profession d’avocat.
[2] 15 Law n. 71-1130 of 31 December 1971, Article 58
[3] Study conducted by AFJE, Cercle Montesquieu, Paris II University and Legal Suite, in cooperation with IPSOS Group.
[4] Judgement of Cour de Cassation, Criminal Division, of 26 January 2022, no 17-87.359
[5] Cass. Crim. 25 November 2020, n.19-84.304
Germany
Company lawyers have been officially recognized in Germany since 2016 and can benefit from legal professional privilege (LPP) in the context of civil proceedings. However, legal privilege does not apply to in-house counsel in the context of criminal or internal investigations.
What is the word for “company lawyer” in German?
Syndikusrechtsanwalt, if they are registered with a regional bar association or, more broadly, Unternehmensjurist.
Is the title of “company lawyer” officially recognised by law?
Yes, since 2016 the title of Syndikusrechtsanwalt has been officially recognised by law.
Are company lawyers required/permitted to register with the national bar?
Yes, as registration with a local bar association, Rechtsanwaltskammer, is a prerequisite for qualifying as a Syndikusrechtsanwalt.
Are communications and advice provided by company lawyers covered by legal professional privilege?
Yes and no, as legal professional privilege applies in the context of civil judicial proceedings, but not with regards to criminal investigations.
How many company lawyers are estimated to be in Germany?
It is estimated there are currently between 35,000 and 40,000 company lawyers working throughout the Federal Republic of Germany, of which approximately 20,000 are registered with a local bar association.
Recent case law and developments
In 2018, a Federal Constitutional Court ruling held that, in the absence of criminal proceedings specifically targeting the company, legal professional privilege does not cover documents and advice produced by any lawyer in the context of a corporate internal investigation.[1]
Company lawyers in Germany
Company lawyers have been officially recognised in Germany since 1 January 2016, when Article 46 of the Federal Lawyer’s Act was amended and codified the status of in-house counsel for the first time. To qualify as a Syndikus, company lawyers must possess the necessary qualifications to be an attorney, i.e., hold the required law degree and be eligible to be a judge in Germany (second state exam). Additionally, in-house lawyers must obtain a licence from a Rechtsanwaltskammer (regional bar association) to which membership is mandatory by law. Company lawyers are free to represent and advise their employers on an exclusive basis or practice on behalf of multiple clients. They are also permitted to perform non-legal tasks provided they do not make up most of their work. If in-house counsel work full-time for their company, they are not allowed to represent it in court in cases where representation by an attorney is mandatory by law. However, this can be circumvented if Syndikus lawyers maintain a practice as independent attorneys in addition to their main employment within a company. Finally, to preserve their intellectual independence, the 2016 law makes it clear that employers do not have the right to issue direct instructions to their employed lawyers.
Legal professional privilege
Company lawyers in Germany have benefited from legal professional privilege since legal recognition and regulation of their status in 2016, but only in the context of civil judicial proceedings. Unlike external attorneys, company lawyers do not have the right to refuse testimony in criminal proceedings when acting in their capacity as legal counsel for their company. This also applies to the seizure of records in the possession of a lawyer. In June 2018, the Bundesverfassungsgericht (Germany’s Constitutional Court) confirmed that, in the absence of criminal proceedings against a company, lawyers generally do not benefit from legal privilege when carrying out internal investigations.[2] The backdrop for the court’s decision was a raid of a law firm’s offices and the seizure of documents and data supposedly related to the Volkswagen emissions scandal. The doctrine of privilege was not applicable in the case at hand, the court argued, because the law firm in question, had not been retained by Volkswagen in relation to any criminal investigations in Germany – it had been engaged solely for purposes of internal investigations.
[1] BVerfG, 27 June 2018 – 2 BvR 1562/17 -, para. (1-54).
[2] Federal Constitutional Court of Germany decisions as of 27 June 2018; Case numbers: 2 BvR 1405/17, 2 BvR 1780/17, 2 BvR 1562/17, 2 BvR 1287/17, 2 BvR 1583/17 of 27.06.2018.
Greece
Company lawyers in Greece share the same rights and ethical obligations as external attorneys, as the law explicitly allows attorneys to provide legal services in the context of an employment relationship. They benefit from legal professional privilege (LPP), although exceptions are possible if they hold other roles in the company in addition to their legal function.
What is the word for “company lawyer” in Greek?
Έμμισθος δικηγόρος
Is the title of “company lawyer” officially recognised by law?
Yes, company lawyers are officially recognised by the Κώδικας Δικηγόρων (Code of Lawyers).
Are company lawyers required/permitted to register with the national bar?
Yes, company lawyers are required to register with a local bar association.
Are communications and advice provided by company lawyers covered by legal professional privilege?
Yes, as the Code of Lawyers does not provide for any distinction between in-house lawyers and external attorneys on this matter.
How many company lawyers are estimated to be in the country?
There are no official numbers, but it is estimated there are approximately 4,000 company lawyers practising in Greece.
Company lawyers in Greece
Company lawyers are formally recognised by the Greek Code of Lawyers, which generally regulates the pursuit of the legal profession. Articles 3 and 42 of the Code provide for the existence of “salary lawyers”, i.e., legal professionals who are remunerated based on a fixed salary and offer their legal services to a
specific client on a permanent basis. Notwithstanding their employed position, salaried lawyers are also free to carry out legal work for other people or legal entities, either as external or internal legal counsel, unless their employment contract specifies otherwise. Company lawyers can be employed both in the private and public sectors, although not both at the same time. In the latter case, recruitment must be performed in line with a specific public tender procedure, which is laid out in Article 43. Finally, when in-house lawyers enter a new relationship of employment, they are required to notify the responsible local bar association about the entity to which legal services will be provided
within three months.
Legal professional privilege
Company lawyers in Greece benefit from legal professional privilege under the same conditions as external attorneys, as the Code of Lawyers draws no distinction between categories of lawyers on this matter. Article 38 of the regulation generally defines the concept of legal privilege as the obligation of lawyers to maintain strict confidentiality about whatever information their client has entrusted to them. LPP is a pervasive concept in Greek law, protected under the Constitution, the Attorney’s Code of Conduct, and the Codes of Judicial Procedure. It should be noted that legal professional privilege applies not only to communications and legal advice, but more broadly to all information be it oral, written, or electronic obtained by lawyers in their capacity as legal advisors, whether provided directly by the client or not. While in-house counsel generally benefits from LPP like all other lawyers, the impact of the Akzo Nobel ruling has led to possible distinctions
being drawn regarding in-house lawyers on this subject. In cases where lawyers are in an exclusive relationship of employment and they exercise other duties within the company that do not constitute provision of legal services, their communication related to those parallel duties is generally not covered by legal professional privilege. However, the courts have the power to decide whether legal privilege should be granted on an ad hoc basis, and in practice the trend has been to recognise privilege rather than deny it.
Ireland
Considered a cornerstone of the administration of justice and the rule of law, legal professional privilege (LPP) is a longstanding principle under Irish law. In-house solicitors can benefit from legal professional privilege, although each situation must be examined on a case-by-case basis.
What are the words used to designate company lawyers in Ireland?
There is no set title. Examples used would include In-house solicitor, In-house counsel / General Counsel / Head of Legal
Are “company lawyers” officially recognised by law?
Yes, in-house solicitors in the private and public sectors in Ireland are fully recognised as solicitors, provided they hold a practising certificate issued by the Law Society of Ireland.
Are company lawyers required/permitted to register with national bar or equivalent?
Yes, as no formal distinction between in-house solicitors in the private and public sectors and private practice solicitors exists when they both hold annual practising certificates. No opinion has been expressed on barristers providing advice in an in-house capacity.
Are communications and advice provided by company lawyers covered by legal professional privilege?
Normally yes, in-house solicitors can benefit from legal professional privilege.
How many company lawyers are estimated to be in the country?
As of April 2019, there were approximately 2,812 in-house solicitors working in Ireland.
Company lawyers in Ireland
In Ireland, in-house lawyers in the private and public sectors are fully recognised as “solicitors”, provided they hold a practising certificate issued by the Law Society of Ireland. No formal distinction between in-house and private practice solicitors exists when they both hold annual practising certificates. Like all solicitors, in-house solicitors are registered on the Irish Roll of Solicitors and are required to hold a practising certificate before providing legal services of any kind. It is both professional misconduct and a criminal offence for a solicitor, other than a solicitor in the full-time service of the State or a solicitor solely engaging in conveyancing services for a non-solicitor employer, to practise without a practising certificate. A solicitor shall be deemed to practice as a solicitor if they engage in the provision of legal services. “Legal services” are services of a legal or financial nature provided by a solicitor arising from that solicitor’s practice as a solicitor. Each situation must be examined to decide whether a practising certificate is needed in the circumstances. Irish in-house solicitors are bound by the same professional and ethical standards that apply to solicitors in private practice and both are subject to the same regulatory regime. As a result, solicitors can freely choose to change roles from private practice to in-house and vice versa.
Legal professional privilege
Legal professional privilege is a long-established principle in Ireland, with the rationale for its existence tracing back to the XIX century, when the High Court of Chancery held that the protection conferred by LPP should apply not only to communications connected with judicial proceedings but also to legal advice in general “in so far as every transaction may, by possibility, become the subject of judicial inquiry”.[1] LPP will apply to adversarial proceedings and documents which are considered confidential communication between a lawyer and their client. The term ‘communication’ relates not only to written statements but also to oral conversations or documents generated by the lawyer during formulation of legal advice.
There are two categories of professional privilege: legal advice privilege (LAP), which covers confidential communications made for the purpose of obtaining legal advice between a solicitor and their client; and litigation privilege (LP), which covers communications made for the dominant purpose of gathering evidence to use in court proceedings, and can include communications with third parties, provided they are related to that purpose. To fall under the scope of LAP, communications must be confidential, made within a professional legal relationship between a solicitor and their client, and for the purpose of giving or receiving legal advice. The most important factor is that the solicitor must be acting within their professional capacity. As Ireland is a common law country, it is important to remember that legal professional privilege is largely regulated through judicial precedents, and that whether LPP applies in a specific situation is assessed on a case-by-case basis.[2]
[1] Greenough v. Gaskell (1833) 1 My & K 98; 39 E.R. 618
[2] The previous section is based on ECLA’s own research regarding legal professional privilege, it is not intended to provide legal advice and does not in any way represent the legal opinion of the Law Society of Ireland on this matter.
Italy
Company lawyers are not a recognised legal profession under Italian law, and they do not benefit from legal professional privilege (LPP), although limited exceptions are possible for in-house counsel working in the public sector.
What is the word for “company lawyer” in Italian?
Giurista d’impresa
Is the title of “company lawyer” officially recognised by law?
No, the profession of company lawyers is not recognised nor regulated by Italian law.
Are company lawyers required/permitted to register with the national bar?
No, as the profession of avvocato, which exclusively refers to attorneys registered with one of Italy’s local bar associations – Ordine degli Avvocati – is deemed incompatible with any relationship of subordinate work, with few limited exceptions.
Are communications and advice provided by company lawyers covered by legal professional privilege?
No, as registration with a local bar association is required to benefit from legal professional privilege.
How many company lawyers are estimated to be in Italy?
The Italian In-House Lawyers Association (AIGI) estimates there are around 6,000 company lawyers currently practising in Italy.
Recent case law and developments
Since 2012, the law regulating the legal profession explicitly allows company lawyers to deliver extra-judicial legal advice within an exclusive relationship of employment. However, the same law extended the activities reserved for registered external attorneys to include extra-judicial legal advice to third parties (and not only to litigation as previously was the case). This directly contradicts a proposal issued by the Italian Antitrust Authority dated August 2012 (n. AS974), which found that the incompatibility between employed work and registration with the bar is not proportionate or necessary to ensure the proper practice of the legal profession and should be resolved.
Company lawyers in Italy
The profession of company lawyers is not recognised nor regulated by Italian law. In-house counsel are not permitted to register with the bar association or to represent their employer in court because they provide legal advice in the context of an employment relationship, which is deemed incompatible with the profession of a lawyer (avvocato) as it is classically intended.[1] As a matter of fact, subordinate work is considered irreconcilable with the intellectual independence and autonomy typical of an external lawyer and in-house lawyers are commonly considered too susceptible to the influence and directions of their employer. Nevertheless, in-house lawyers working for public entities, or former public entities that have since been privatised, are permitted to register on a special list associated with the local bar associations, and benefit from the same rights and status as external lawyers. This dichotomy is said to be justified by the fact that such entities have specially dedicated legal offices, set up specifically to allow legal counsel to work in complete freedom and autonomy.[2] This interpretation conflicts however with the fact that many former public companies are now indistinguishable from private corporations in the way they are structured and how they operate. As pointed out by AIGI[3], this represents a violation of Articles 3 and 41 of the Italian Constitution, which asserts the equal treatment of public and private corporations operating within the same sector.
Legal professional privilege
Under Italian law, legal professional privilege applies to information exchanged for the purpose of legal assistance between a client and an independent, external lawyer who is not bound to the client by any employment relationship and is member of a local bar association. LPP protects all information exchanged and sent between, by or to lawyers in the context of a professional relationship, including preparatory or internal documents, if its primary purpose is to obtain legal advice. Although they do not benefit from legal professional privilege, in-house lawyers are still bound by Article 2105 of the Italian Civil Code on the duty of loyalty, under which employees are forbidden to disseminate information about their company’s organisation, or to use such information to cause detriment to the company.
AIGI’s Code of Conduct also obliges members to keep all information related to their professional activities private and confidential. However, these provisions may not be invoked in the context of law-enforcement investigations and do not provide legal advice delivered by in-house counsel with equivalent protection to legal professional privilege.
[1] See Law of 31 December 2012, n. 247, reforming the regulation of the legal profession, Art. 18(d)
[2] See Advisory Opinions from the Consiglio Nazionale Forense, 279/2017, 188/2015
[3] AIGI Press Release, May 2009
Lithuania
The company lawyer profession of is not recognised under Lithuanian law, which considers it inconsistent with the work of external attorneys. Communications and advice provided by in-house counsel are not protected by legal professional privilege (LPP), although they are able, under certain conditions, to refuse testimony about their company’s activities in the context of civil and administrative proceedings.
What is the word for “company lawyer” in Lithuanian?
Bendrovių teisininkų
Is the title of “company lawyer” officially recognised by law?
No, the profession of company lawyers is not recognised nor regulated by Lithuanian law.
Are company lawyers required/permitted to register with the national bar?
No, as holding any paid position is considered incompatible with the title of Advokatas (attorney), except if employed by the bar association itself.
Are communications and advice provided by company lawyers covered by legal professional privilege?
No, as registration with the Lietuvos Advokatūra, the Lithuanian National Bar Association, is a necessary pre-condition for benefiting from legal professional privilege.
How many company lawyers are estimated to be in the country?
As of the end of 2019, it is estimated there are approximatively 300 company lawyers currently working in Lithuania.
Company lawyers in Lithuania
Company lawyers are not recognised by Lithuanian law, which does not regulate the conditions under which the profession can be accessed or practised. Article 43 of the Advokatūros įstatymas (Law of the Bar Association) prohibits registered attorneys from holding any paid position, i.e., an employed position in companies other than a law firm under penalty of being retroactively removed from the list of practising Lithuanian lawyers as of the date on which employment began. Consequently, company lawyers in the country are also unable to represent their employer in court, as the right to representation in legal proceedings is exclusively reserved for bar-certified external attorneys.
Legal professional privilege
The concept of legal professional privilege in Lithuania has its legal basis in Article 46 of the Law of the Bar Association, which prevents lawyers from being called as witnesses to testify on circumstances they have become aware of within the context of their professional duty. It also prohibits the inspection or seizure of any document related to the activities and communications of a lawyer, except in cases where the lawyer is suspected or accused of a criminal offence. However, this provision exclusively applies to advokatas (registered external lawyers) and is therefore not applicable to the work of company lawyers. As a result, communications and legal advice provided by in-house counsel are not protected
by legal professional privilege against disclosure in official investigations or legal proceedings. Nevertheless, company lawyers in Lithuania do benefit from some protection of confidentiality in the case of civil and administrative proceedings.
In-house counsel do not enjoy privilege in litigation, criminal investigations, or advice protection but they are bound by the confidentiality obligations as an employee. In these instances, representatives of a company cannot be called to testify about facts that they have become aware of while acting as the representative of a company.[1] However, these provisions are not applicable in criminal proceedings, and do not generally protect companies against the seizure of documents and legal advice provided by their in-house counsel.
[1] See Lex Mundi Multi-Jurisdictional Survey, In-House Counsel and The Attorney-Client Privilege, Lithuania (2007)
The Netherlands
Company lawyers in the Netherlands are recognised as fully qualified lawyers and can be admitted as members to the Dutch Bar Association. As members, their communications and advice benefit from legal privilege under the same conditions as private practice attorneys, provided that their professional independence from their employer can be reasonably demonstrated.
What is the word for “company lawyer” in Dutch?
Bedrijfsjurist, In-house lawyer.
Is the title of “company lawyer” officially recognised by law?
Yes, the title in-house counsel is officially recognised as a specific category of lawyers under Dutch law.
Are company lawyers required/permitted to register with the national bar?
Yes, in-house lawyers can register with the Dutch Bar Association under Article 5.9(g) of the Byelaws on the Legal Profession.
Are communications and advice provided by company lawyers covered by legal professional privilege?
Yes, in-house counsel can benefit from legal professional privilege, although certain conditions apply with regard to their independence.
How many company lawyers are estimated to be in the country?
It is estimated there are approximately 3,600 company lawyers currently practising
in the Netherlands.
Recent case law and developments
In November 2019, a District Court reaffirmed[1] the necessity of professional independence for in-house lawyers as a precondition to benefitting from legal professional privilege. It held that documents and communications could not be considered privileged if the legal counsel’s ties to the company’s management are too close, or if formal steps to guarantee the legal counsel’s independence of management have not been undertaken. The Dutch Supreme Court upheld[2] the Rotterdam District Court decision with regards to foreign in-house counsel employed abroad, in which the local rules and regulations confer the rights that the lawyer in question enjoys. Company lawyers based aboard cannot invoke legal professional privilege when they are employed by a Dutch company unless the regime gives them the right to do so. Foreign in-house counsel who work in the Netherlands must sign a professional statute, in accordance with the Dutch Bar Association, in order to meet the conditions under Dutch law in which in-house counsel can invoke legal professional privilege. This entails that for foreign company lawyers in the Netherlands to enjoy the same rights as Dutch company lawyers, the conditions for guaranteeing independence are identical.
Company lawyers in the Netherlands
Company lawyers are recognised as fully qualified legal professionals under Dutch law. While they are not specifically regulated as a separate profession, Article 5.9(g) of the Byelaws on the Legal Profession as adopted by the Dutch Bar Association allows registered lawyers to practise law as employees of a company or organisation, if they only act on behalf of the employer or of legal entities belonging to the employer’s group, and that their activities remain primarily focused on legal practice. In addition, Article 5.12 requires both in-house lawyers and their employers to sign a professional statute guaranteeing the professional independence of the in-house counsel. The General Council of the Bar Association established the scope for this professional statute, which requires that employers, amongst others, not interfere with the free and independent exercise of the lawyer’s profession; not attempt to influence their professional conduct; and not place the in-house counsel in situations where potential conflicts of interest may arise. In return, in-house lawyers are required to follow instructions issued by their employer, provided that these instructions do not conflict with their obligations as members of the Bar, and to promote order and good practice within their organisation. According to Article 5.15, the professional statute must be signed and submitted by the lawyer to the President of the Bar Association before the start of their employment contract.
Legal professional privilege
Communications and advice delivered by in-house lawyers can benefit from legal professional privilege under Dutch law, provided the counsel they emanate from has been admitted to the Dutch Bar Association. Sections 10a and 11a of the Advocatenwet (Legal Counsel Act) require all registered lawyers, including those practising within a relationship of employment, to maintain confidentiality regarding information acquired “by virtue of practising [their] profession”. This means that, in cases where in-house lawyers hold multiple roles within a corporation, legal professional privilege will only apply to the documents or communications that were clearly provided within their capacity as legal counsel. Furthermore, as intellectual independence is a defining characteristic of the profession, in-house lawyers cannot claim legal privilege unless they have previously signed and submitted the professional statute guaranteeing them the same level of professional independence as any other member of the Dutch Bar. In this regard, the Rotterdam District Court recently held that, as foreign lawyers working in the Netherlands are governed by the Dutch Bar regulations, lawyers who do not comply with the professional statute requirement cannot validly claim legal professional privilege. The Court also denied a Head of Legal’s privilege claim on the grounds that they were also a member of the company’s Executive Committee and therefore, held a role of co-responsibility within the company and were not fully independent of management.
[1] Judgment of the Rotterdam District Court of 28 January 2021, Shell and others v. Dutch Public Prosecution Service, 10/997376-16, NL:RBROT:2021:527
[2] Judgment of the Dutch Supreme Court of 24 May 2022, NL:HR:2022:760
Norway
Company lawyers enjoy total equality to external attorneys under Norwegian law as they are registered with the national bar association and benefit from legal professional privilege (LPP) under the same conditions as all other categories of lawyers.
What is the word for “company lawyer” in Norwegian?
Bedriftsjuristen / Bedriftsadvokat.
Is the title of “company lawyer” officially recognised by law?
Yes, in-house counsel in Norway is fully recognised as lawyers.
Are company lawyers required/permitted to register with the national bar?
Yes, in-house lawyers need to register with the Advokatforeningen, Norway’s National Bar Association.
Are communications and advice provided by company lawyers covered by legal
professional privilege?
Yes, if the targeted information relates to their capacity as legal advisors.
How many company lawyers are estimated to be in the country?
There are no official numbers, but the latest survey conducted in August 2018 by the Advokatforeningen, the Norwegian Bar Association, estimates there are approximately 1,240 company lawyers working in Norway.
Recent case law and developments
An Expert Committee appointed in 2017 by the Ministry of Finance has recently held that, when acting as tax advisors, company lawyers should be treated like any other company employee, and thus not be covered by legal professional privilege, citing amongst others the Akzo Nobel ruling.
Company lawyers in Norway
Norwegian law recognises in-house counsel as lawyers, as Section 233 of the Lov om domstolene, Courts Act, provides for an explicit exception allowing attorneys to carry out legal assignments for an employing company or companies belonging to the same group, the rationale being to make it possible for companies to meet their needs for legal assistance without necessarily having to rely on external law firms.
The rules regulating the legal profession are expected to be updated and modernised within 2022. A separate section covering in-house lawyers will include an explicit subsection, whereby company lawyers have the legal right to refuse tasks for their employer that would affect their independence.[1] This rule would also extend to legal assistants within the corporate legal department.
As an exception to the general right of management, the employer should not give instructions to its internal lawyers regarding their work or professional advice, as only senior in-house counsel should be permitted to direct the activities of their subordinates. There should be limits to whom internal counsel are authorised to provide legal assistance, as some level of connection with the employing company is always required. In general, however it is believed that labour law regulations also play a role in preserving the lawyer’s independence, protecting them from unfair dismissal, so that their employer could not fire them for the simple reason it did not agree with the legal advice they provided.
Legal professional privilege
Although it is an established principle with multiple legal implications, LPP has no explicit statutory base in Norwegian law, except for Section 211 of the Criminal Code, which bars courts of law from accepting the testimony of lawyers and their subordinates regarding information entrusted to them in their professional capacities. This protection extends to documents and other items containing confidential information, which cannot be seized by public authorities. According to Norway’s Supreme Court, LPP protects not only information entrusted by the client stricto sensu, but also all other relevant information collected autonomously by the lawyer. Company lawyers benefit from legal professional privilege under the same conditions as external attorneys, meaning if their communications are made in connection with the obtention of legal advice.
[1] The draft proposal can be accessed at https://www.advokatforeningen.no/aktuelt/advokatlov/internadvokater/, last accessed 6 December 2022.
Poland
Company lawyers in Poland belong to the category of “attorneys-at-law” but are generally subject to the same rights and obligations of external attorneys. They benefit from legal professional privilege (LPP) under the same conditions as private practice lawyers, are members of district bar associations and subject to specific ethical regulations.
What is the word for “company lawyer” in Polish?
Radca prawny.
Is the title of “company lawyer” officially recognised by law?
Yes, company lawyers and legal advisors in general are fully recognised as equal to adwokatów, external attorneys.
Are company lawyers required/permitted to register with the national bar?
Yes, company lawyers are required to register with one of the nineteen Okręgowa Izba Radców Prawnych, district bar associations, in order to qualify as legal advisors.
Are communications and advice provided by company lawyers covered by legal professional privilege?
Yes, as legal advisors who are members of a district bar association are bound by the duty of professional secrecy, pursuant to the Law on Legal Advisors.
How many company lawyers are estimated to be in the country?
There are no official numbers, but it is estimated there are approximately 7,100 company lawyers currently practising in Poland.
Recent case law and developments
On 15 July 2015 amendments to the Ustawa o Radcach Prawnych, law on attorneys-at-law, came into effect, allowing them for the first time to represent clients in criminal proceedings and effectively bringing the status of legal advisors – which includes company lawyers – on an equal footing with external attorneys.
Company lawyers in Poland
Company lawyers are fully recognised as qualified attorneys-at-law in Poland. While the two categories of legal advisors (radca prawny and adwokat) have been historically regulated as separate professions, their status has been identical in most matters since 2015, when legal advisors were for the first time granted a general right to represent their clients in all types of court, including criminal cases and proceedings before the Supreme and Constitutional Courts. As of 2019, the two categories of legal advisors are effectively equal under Polish law, the sole difference being that only attorneys-at-law (radca prawny) are allowed to practise law under an employment contract, i.e. as company lawyers. Apart from this, internal and external lawyers share the same rights and obligations, and are both bound by ethics codes that guarantee their independence and professional standards. Company lawyers in particular are bound by the Kodeks Etyki Radcy Prawnego, Code of Ethics of Attorneys-at-Law, which regulates, amongst others, the basic values of the profession, including intellectual independence, professional secrecy and the avoidance of conflicts of interest.
Legal professional privilege
Company lawyers benefit from legal professional privilege under the same conditions as external attorneys under Polish law, as long as they are fully qualified attorneys-at-law, i.e. they have fulfiled all educational requirements and have been admitted to one of Poland’s Okręgowa Izba Radców Prawnych, district bar associations. Pursuant to Article 3.3 of the law regulating attorneys, company lawyers are required to keep all information that they become aware of in connection with the legal assistance they provide to their client confidential. The provision however clarifies that this obligation does not apply to information made available on the basis of anti-money laundering and counterterrorism regulations. In addition, in the context of criminal investigations, legal professional privilege only applies to knowledge and documents held by the attorney, not the client, and therefore does not prevent relevant information from being disclosed in case it is found in possession of the client.[1] It should also be noted that Article 180, Sections 1 and 2 of the Code of Criminal Procedure allow the courts to release lawyers from the duty of professional confidentiality “only when it is necessary for the benefit of the administration of justice, and the facts cannot be established on the basis of other evidence”, thus allowing for cases where LPP can be effectively waived by a court’s decision, as attorneys are not allowed to refuse testimony in this case.
[1] DLA Piper, Global Guide on Legal Professional Privilege, Poland (2019)
Portugal
Company lawyers working in Portugal enjoy full legal recognition and benefit from legal professional privilege (LPP) in the same ways and under the same rules as external attorneys. Case law on this matter consistently rejects the idea that a relationship of legal subordination is incompatible with their intellectual independence.
What is the word for “company lawyer” in Portuguese?
Advogados de Empresa.
Is the title of “company lawyer” officially recognised by law?
Yes, in-house counsel in Portugal is fully recognised as advogados, lawyers.
Are company lawyers required/permitted to register with the national bar?
Yes, registration with the Ordem dos Advogados, Portugal’s National Bar, is mandatory for all lawyers under Portuguese law.
Are communications and advice provided by company lawyers covered by legal professional privilege?
Yes, as in-house counsels have the same rights and are bound by the same duties
as independent lawyers.
How many company lawyers are estimated to be in the country?
According to the latest estimates from the Portuguese National Bar, there are approximatively 5,700 company lawyers currently practising in the country.
Recent case law and developments
An opinion from the General Council of the Bar Association delivered in 2007 confirmed that no discrimination amongst lawyers can be drawn when assessing the scope of legal professional privilege, and that the seizure by public authorities of documents on which LPP had been claimed by in-house lawyers is not only null and void but amounts to criminal behaviour.30
Company lawyers in Portugal
Portuguese law does not draw any formal distinction between external attorneys practising in a law firm and company lawyers. On the contrary, according to both the Statutes of the National Bar and the interpretation adopted by its General Council over the years, in-house counsel have the same rights and are bound by the same duties as independent lawyers. Both are required to register with the bar association to practise law, and there are no limitations regarding the possibility to switch from one profession to another. According to a survey conducted in 2006 amongst 1,094 in-house lawyers by the Instituto dos Advogados de Empresa (IAE), the average profile of a typical Portuguese company lawyer could look something like the following: 30 to 50 years old, has been practising law for less than 15 years, works predominantly in companies in the commerce and services sector, participates in the negotiation of contracts and specialises in two or more legal areas, with particular emphasis on commercial / corporate law and labour law.
Legal professional privilege
Legal professional privilege and professional secrecy are mainly regulated by the Statute of the Portuguese Bar Association, enacted by Law No. 145/2015 of 9 September 2015. Legal professional privilege only exists for members of the Portuguese Bar Association (advogados). Therefore, communication of and with company lawyers in Portugal are only protected by legal professional privilege if they are member of the bar association and registered as advogado. The fact that legal professional privilege also applies for the profession of in-house counsel in Portugal was also confirmed by the Lisbon Court of Appeal on 10 November 2016.[1]
Pursuant to Article 92 of the Bar Association Statute, all lawyers are required to maintain professional secrecy with regards to all facts and information they come to know in the performance of their duties or services. The legal foundation for legal professional privilege can be found in the Portuguese Constitution itself,
as Article 208 provides that “the law shall ensure that lawyers enjoy the immunities needed to exercise their mandates and shall regulate legal representation as an element that is essential to the administration of justice”. As the body responsible for deliberating on all matters concerning the exercise of the legal profession, the General Council of the Bar Association has also weighed in on the issue of the scope of LPP with regard to in-house lawyers, which is in line with the aforementioned constitutional principle.
Indeed, in its Opinion No. E-07/07, the Conselho held that, since the exercise of the legal profession is fully compatible with legal subordination, no negative discrimination can be drawn against any type of lawyer, and that the search and seizure by the National Competition Authority of documents and computers of an in-house lawyer is to be considered not only void but also amounts to criminal conduct. Therefore, under the precedent set by the Akzo Nobel ruling at the EU level, it is important for Portuguese professionals to always consider the applicable law in each situation, as domestic legislation provides for much more vigorous protection of in-house lawyers in competition cases than at the EU level.
Under Portuguese law, LPP does not cover facts known to the public, facts which have been previously proven in court, facts which lead to the assumption that the lawyer is a suspect having played an active role in a crime, facts which have been described in public documents or deeds, and facts which have been disclosed in the client’s benefit with the authorization of the Bar Association.
[1] Judgment of the Lisbon Court of Appeal of 10 November 2016, No. 782/14.2TVLSB-A.L1-6
Slovenia
Company lawyers are not regulated as a specific legal profession and their legal advice is not covered by legal professional privilege (LPP), although they can benefit from some level of protection in the case of civil proceedings.
What is the word for “company lawyer” in Slovenian?
Korporacijski pravnik.
Is the title of “company lawyer” officially recognised by law?
No, the profession of company lawyers is not recognised nor regulated by Slovenian law.
Are company lawyers required/permitted to register with the national bar?
No, as holding a paid position is deemed incompatible for registration with the Odvetniškazbornica Slovenije, Slovenia’s national bar association.
Are communications and advice provided by company lawyers covered by legal professional privilege?
No, as registration with the national bar association is required to benefit from legal professional privilege.
How many company lawyers are estimated to be in the country?
There are no official numbers, but it is estimated there are approximately 1,500 company lawyers currently practising in Slovenia.
Company lawyers in Slovenia
The profession of company lawyers is not officially recognised nor regulated by Slovenian law. As a matter of fact, there is no specific legislation which defines the status of company lawyers as a special profession in terms of prescribing specific requirements to access the profession or granting them distinct status from
other legal professionals. Pursuant to Articles 21 and 30 of the Law on Attorneys of 1993, holding a paid position in fields others than science, teaching, art, or journalism is not only incompatible with the profession of odvetnik, an attorney, but also grounds for disbarment if a lawyer enters an employment contract after registering with the bar association. Although company lawyers can represent their employer in court when granted a power of attorney, unlike external attorneys they are not entitled to claim reimbursement from the opposing party for the costs arising from procedural disputes and may usually only claim travel expenses.
Legal professional privilege
Under Slovenian law, company lawyers cannot generally benefit from legal professional privilege, as there is no specific legal provision which protects the communications of in-house counsel and the employees of the company.
Articles 6 and 14 of the Law on Attorneys only recognise the right and obligation to maintain the confidentiality of information acquired within the scope of professional capacity for external attorneys who are members of the bar, thus excluding those practising within the context of an employment relationship. Nevertheless, communications and the legal advice provided by in-house lawyers can benefit from some level of protection. The Slovenian Employment Relationship Act requires of employees, including in-house counsel, to protect the employer’s business secrets, except when called as a witness in criminal, administrative or civil proceedings. Furthermore, pursuant to Article 231 (1) of the Slovenian Code of Civil Procedure, witnesses have the right to refuse testimony “on what the party has confessed to [them] as their attorney” indicating that, when an in-house lawyer is representing their company after having been granted power of attorney, they can legally refuse to disclose information about their legal work and services before a civil court of law. This provision is not however equivalent to the protection of legal professional privilege, as this type of privilege is based solely upon an employment contract, and not on an independent professional duty of confidentiality stemming from being a part of the legal profession. In contrast to LPP, the option is also not applicable in the context of competition or criminal proceedings.
Spain
Company lawyers in Spain have the same rights and are bound by the same professional and ethical obligations as external attorneys. They are fully recognized by law since 2021 and benefit from legal professional privilege.
What is the word for “company lawyer” in Spanish?
Abogados de Empresa.
Is the title “company lawyer” officially recognised by law?
Yes, in-house lawyers in Spain are fully recognised as abogados (lawyers).
Are company lawyers required/permitted to register with the national bar?
Yes, all legal practitioners must register with one of the 83 local Colegio de Abogados, Spain’s local bar associations, in accordance with their geographical area of residence.
Are communications and advice provided by company lawyers covered by legal professional privilege?
Yes, Spanish law does not distinguish between external and in-house counsel, which means that they both benefit equally from legal professional privilege.
How many company lawyers are estimated to be in the country?
There are no official numbers, but it is estimated that there are approximately 8,000 company lawyers currently practising in Spain.
Recent case law and developments
Company lawyers in Spain
The General Statute of Spanish Lawyers, enacted in 2021 includes an explicit reference to in-house lawyers, a first in the Spanish legal system. Article 37 states that lawyers can exercise their profession as employees and Article 39 expressly refers to company lawyers stating that they are allowed to exercise their profession under a standard labour agreement. The Statute requires that company lawyers labour agreement will have to respect the basic freedom, independence and legal privilege required to exercise the profession.
Legal professional privilege
Company lawyers in Spain fully benefit from legal professional privilege, even though there are no specific provisions in this regard, as in-house and external counsel are subject to identical duties and rights in the framework of the performance of their legal services. Nevertheless, some recent developments in the field point to a possible weakening of the principle of legal professional privilege and are cause for some concern. First, following the Akzo Nobel ruling, the Spanish Competition Authority now repeatedly acts as if in-house counsel does not benefit from LPP, even in cases where inspections are carried out in accordance with national legislation. This approach has been challenged in court, as the Akzo Nobel case should have no influence on domestic competition regulations, but Spain’s Supreme Court has yet to address the issue directly.
The introduction of the revised General Statute extends legal professional privilege to company lawyers. The scope of legal professional privilege extends to “all facts, communications, data, information, documents and proposals known, issued or received by legal professionals in the course of legal representation”. This regulation also includes all persons who collaborate with the lawyer in question. Moreover, the designation and duty of a lawyer, or legal professional, novel terms under Spanish law, corresponds exclusively to the professional who assumes the direction and defense of the parties in all kinds of proceedings and the one who provides legal advice and counsel.
The revised General Statute does, for the first time, provide lawyers with the right to ask that any search of their premises by the authorities be conducted in presence of the President of the Bar. This ensures that legal professional privilege is preserved during the inspection of any document.
There are two fundamental requirements that enable company lawyers to be protected by legal professional privilege within the framework of the new General Statute:
– Company lawyers must belong to a relevant Bar Association as a practicing member;
– Company lawyers must state expressly that the relevant correspondence is protected by legal professional privilege.
Sweden
Company lawyers in Sweden are not on equal footing with external attorneys as their employed position prevents them from registering as members of the bar. They are generally allowed to represent their employer in court, as there is no monopoly of legal services under Swedish law, but do not benefit from legal professional privilege (LPP).
What is the word for “company lawyer” in Swedish?
Bolagsjurister.
Is the title of “company lawyer” officially recognised by law?
No, the profession of company lawyers is not recognised nor regulated by Swedish law.
Are company lawyers required/permitted to register with the national bar?
No, people employed by private entities are prevented from registering with the Sveriges Advokatsamfund, Sweden’s national bar association.
Are communications and advice provided by company lawyers covered by legal professional privilege?
No, as legal professional privilege is reserved for external attorneys who are members of the national bar.
How many company lawyers are estimated to be in the country?
There are no official numbers, but it is estimated there are currently approximately
9,000 company lawyers practising in Sweden.
Company lawyers in Sweden
Company lawyers are not officially recognised as equal to external attorneys and are not regulated as a specific category of legal professionals under Swedish law. According to Section 3 of Stadgar för Sveriges advokatsamfund (Charter of the Swedish Bar Association), people employed by a private entity other than a law firm cannot be admitted as members of the National Bar Association unless they are employed by the Bar Association itself or unless the Board decides to grant a specific exception. This provision stems from concerns related to the professional independence of in-house lawyers, which are seen as likely to be subjected to undue influence and direction from their organisation based on their employment relationship and the ensuing financial dependence.
Legal professional privilege
The communications and legal advice provided by company lawyers in Sweden are not protected by legal professional privilege and can be seized and used by public authorities as evidence in judicial proceedings. When addressing the legal professionals’ possibility of withholding testimony on matters which have been confided to them in their professional capacity, Swedish law only refers to advokater, a term which exclusively designates external attorneys who are members of the bar. Therefore, to protect their communications with directors and employees of the company against seizure and disclosure, in-house lawyers have no choice but to entrust those documents to the services of an external counsel that is also a member of the bar association, in which case LPP will protect virtually every piece of information entrusted to the external attorney in their professional capacity. However, even in this case, it should be kept in mind that under Chapter 3 Section 5 of the Procedural Code, the law can provide for exceptions to be made on the legal professional privilege of advokater, which can for example be waived in cases where the defendant is being tried for a criminal offense carrying a prison sentence of a minimum of two years.[1]
[1] DLA Piper, Global Guide on Legal Professional Privilege, Sweden (2019)
Switzerland
Company lawyers are not a regulated legal profession under Swiss law, and their communications and legal advice do not currently benefit from legal professional privilege (LPP). However, the upcoming revision of the Code of Civil Procedure could potentially reform and include passages on company lawyers.
What is the word for “company lawyer” in German, French and Italian?
Unternehmensjurist, Juriste d’entreprise, Giurista di impresa.
Is the title of “company lawyer” officially recognised by law?
No, the profession of company lawyers is not recognised nor regulated by Swiss federal or cantonal law.
Are company lawyers required/permitted to register with the national bar?
No, as employed lawyers are prevented from registering with the cantonal Registers of Lawyers, with very few exceptions.
Are communications and advice provided by company lawyers covered by legal professional privilege?
No, as only bar-registered, external attorneys can benefit from legal professional privilege.
How many company lawyers are estimated to be in the country?
There are no official numbers, but it is estimated there are approximately 3,200 company lawyers currently practising in Switzerland.
Recent case law and developments
In 2016, the Committee for Legal Affairs of the Swiss Federal Council examined a proposal seeking to extend the benefit of legal professional privilege to in-house lawyers in the context of civil judicial proceedings. The Committee declared itself generally in favour of the proposed reform but decided to postpone the debate until 2020 while waiting for further information.
Company lawyers in Switzerland
The profession of company lawyers is not officially recognised under Swiss law, neither at the federal or cantonal level. While cantons have the authority to create the Register of Lawyers practising within their territory, Article 8 of the Federal law on the free movement of lawyers explicitly prevents individuals in a relationship of employment from seeking admission to such registers, unless they are employed by another registered attorney. Some exceptions appear to be possible, as federal case law has in the past accepted the admission of corporate counsel to the register of lawyers on the condition that their independence is clearly formulated, specifically by the means of a supplementary agreement clarifying that the employer’s right to issue instructions under the employment contract is excluded in matters related to legal consulting and litigation mandates.[1] This is, however, not established case law, as similar cases over the years have seen contradictory outcomes. Company lawyers employed by recognised public interest organisations can also request to be admitted to the Register of Lawyers but must limit their legal services to tasks specifically related to the organisation’s goals.
Legal professional privilege
Communications and legal advice provided by company lawyers are not currently protected by legal professional privilege, although the issue has been the subject of debate for over a decade. As part of the ongoing revision of civil procedure law, discussions are ongoing to introduce the protection of professional secrets for corporate lawyers in civil proceedings. The revision of the Code of Civil Procedure was discussed end of June 2022. The National Council and the Council of State have come to agree with the fact that legal professional privilege should be inserted into the code of civil procedure to strengthen Swiss companies. While both chambers agree on the introduction in principle, certain modalities are yet to be finalized. It is currently anticipated that the definitive version will be passed in spring of 2023 at the earliest. Swiss business representatives are in favour of this proposal, stressing the importance of having legal professional privilege in international conduct, which would turn Swiss companies more competitive on a global scale.[2]
[1] Case 2A.101/2003 of December 13, 2003.
[2] ‘Mehr Schutz für Unternehmensjuristen stärkt unseren Standort’ (Economiesuisse, 20 January 2021) accessible at https://www.economiesuisse.ch/de/artikel/mehr-schutz-fuer-unternehmensjuristen-staerkt-unseren-standort last accessed 15 December 2022.
The status of company lawyers across the World
Australia
Company lawyers are recognised as qualified legal professionals within the Commonwealth of Australia. It is generally accepted that their communication and advice attract legal professional privilege, although conditions apply in relation to the purpose of the documents and to the professional independence of the lawyer.
What is the term used to designate company lawyers in Australia?
In-house counsel / General Counsel / Head of Legal.
Is the title of “company lawyer” officially recognised by law?
Yes, in-house lawyers in Australia are recognised as fully qualified attorneys and are generally subject to the same obligations and professional qualifications.
Are company lawyers required/permitted to register with the national bar?
Yes, in-house counsel needs to be admitted to a local admission authority and obtain a practising certificate from the responsible law society to be able to practise law.
Are communications and advice provided by company lawyers covered by legal professional privilege?
Yes, in-house lawyers can benefit from legal professional privilege under Australia’s common law, although certain conditions apply.
How many company lawyers are estimated to be in Australia?
It is estimated there are currently 12,132 company lawyers practising throughout the states and territories of Australia.
Recent developments
In 2007, the Federal Court held that draft documents by an in-house legal advisor were not covered by legal professional privilege, considering the counsel did not act in a sufficiently independent matter within their employment relationship. The case was decided by a single judge and gave no specifications as to how such independence should be demonstrated in practice but could still jeopardise claims of in-house professional privilege in the future.
Company lawyers in Australia
Company lawyers in Australia are recognised as fully qualified legal professionals and generally possess the same qualifications as external attorneys. Although specific professional requirements vary from state to state, in-house lawyers are generally required to complete either a Bachelor of Law or a Juris Doctor degree as well as a practical legal training; to gain admission from the relevant local admission authority; to apply for and obtain a practising certificate from the local law society; and to complete a minimum time of supervised training at a law firm. Some jurisdictions may impose specific practice requirements for company lawyers, such as the Australian Capital Territory, where the grant or renewal of a practising certificate is conditional on the requirement that the in-house counsel “must not engage in legal practice otherwise than by providing in-house legal services to the corporation”[1] or to other bodies related to the company. According to figures released by the Association of Corporate Counsel (ACC) in 2016, company lawyers represent roughly 30% of the legal profession in the country, with 90% of organisations having at least one general counsel or equivalent. This figure climbs to 99% for publicly listed companies. Still, only 4% of organisations in Australia have more than 25 people employed in their legal department, with 68% of legal departments consisting of only 2 to 10 people.[2]
Legal Professional Privilege:
Communications and advice provided by in-house lawyers in Australia can fall under the scope of legal professional privilege, provided that they meet certain conditions. Generally, as is the case for all attorneys, the documents in question must be confidential and have been created for the dominant purpose of either preparing for anticipated litigation or obtaining legal advice. Other additional conditions are specific to in-house legal privilege, as courts usually only consider LPP to be applicable in cases where in-house counsel act in their capacity as lawyers and possess the necessary independence to provide unimpeded legal advice.[3] This means that in cases where the in-house lawyer is found to have acted in a commercial or managerial role, communications will fall outside the scope of privilege. This may also apply if the in-house lawyer’s independent professional judgment can be called into question, for example in situations where they appear to be acting at the direction of their manager, or if doubt is cast on the overall autonomy of the legal department for which they work. Notable examples of factors taken into account by courts in determining a lawyer’s lack of independence include the physical location of the legal department within the organisation, remuneration schemes for in-house lawyers that relate to the financial success of the business, or whether counsel hold a current practising certificate. However, none of these factors provides sufficient evidence on their own and assessment varies on a case-by-case basis.[4]
[1] Legal Profession Act 2006 (A2006-25), Article 38 (2b)
[2] The Evolving Role and Future of In-House Lawyers, Volume 90/6 of The Australian Law Journal
[3] DLA Piper, Global Guide on Legal Professional Privilege, Australia (2019)
[4] See Lex Mundi Multi-Jurisdictional Survey, In-House Counsel and The Attorney-Client Privilege, Australia (2009)
Brazil
Company lawyers in Brazil are recognised and regulated as fully qualified attorneys with equal status to external attorneys. Their communications and advice are covered by legal professional privilege if provided while acting in their capacity as lawyers and if the concerned lawyer is a member of a local section of the Brazilian Bar Association.
What is the term used to designate company lawyers in Portuguese?
Advogado Empregado.
Is the title of “company lawyer” officially recognised by law?
Yes, in-house lawyers in Brazil are recognised and regulated as fully qualified attorneys.
Are company lawyers required/permitted to register with the national bar?
Yes, like all lawyers, in-house counsel is required by law to register with the competent local section of the Ordem dos Advogados do Brasil, the Brazilian Bar Association.
Are communications and advice provided by company lawyers covered by legal professional privilege?
Yes, Brazilian law draws no specific distinction between external and in-house attorneys in relation to professional rights and obligations.
How many company lawyers are estimated to be in Brazil?
It is estimated that there are approximately 200,000 company lawyers currently practising throughout the Federative Republic of Brazil.
Company lawyers in Brazil
Company lawyers in Brazil are recognised and regulated by law as fully qualified legal attorneys. Federal Law 8,906/94 – which regulates the Brazilian legal profession – clearly states in Article 18 that a lawyer’s employment relationship
does not reduce “the professional independence inherent to the practice of law”. As members of the Brazilian bar, company lawyers are also bound by Article 4 of its Code of Ethics and Discipline, which requires attorneys who are members of a legal department to ensure their freedom and independence. These provisions represent an explicit derogation from the general labour law rule, which states that
employees are bound to their employers by a relationship of legal subordination and allow employed lawyers to maintain their freedom and independent professional judgment. The Federal Law also regulates the working time of in-house lawyers, which is limited to four hours a day and twenty hours per week in
cases of non-exclusive employment contracts. Rules on salary conditions have also been laid out, according to which any overtime must be compensated by at least double the normal hourly rate, irrespective of any written contract between the parties.[1] Many state laws throughout the country also provide for a legal minimum wage for employed lawyers, which is calculated based on the hours made available
to their employer. Other states have opted for a minimum but unofficial remuneration, also known as the “ethical floor”.[2]
Legal professional privilege
Under Brazilian law company lawyers benefit from legal professional privilege at the same conditions as external attorneys. Legal advice given by an in-house lawyer of a parent company to a subsidiary company is also protected by attorney-client privilege.[3] In-house lawyers are subject to the same obligation to maintain professional secrecy and the same right to withhold testimony as external attorneys, as Brazilian law draws no specific distinction between in-house and external counsel in view of professional rights and duties. As such, provided that the communication in question is related to legal matters and that the attorney from which it emanates is licensed to practise law at the relevant local bar association[4], legal professional privilege applies. Pursuant to Chapter III of the Code of Ethics of the Brazilian Bar Association, professional secrecy is an obligation incumbent upon the lawyer, and as such gives them the right to refuse testimony about facts related to clients or former clients, even if authorised or requested to do so by the person concerned. Confidentiality cannot be breached by lawyers without “good cause”, which – according to the Brazilian Bar Association’s interpretation – includes cases of “serious threats to life or to honour” or in which the attorney must defend themselves against the client. A lawyer’s infringement of this obligation constitutes both a disciplinary and criminal offense.
[1] See Articles 18 to 21 of the Lei n. 8.906 of 4 July 1994
[2] Como está seu salário? Migalhas online
[3] https://www.klalaw.com.br/wp-content/uploads/2022/04/Legal-Professional-Privilege-and-Professional-Secrecy-in-Brazil-Overview-002.pdf
[4] See Article 3 Federal Law No. 8.906/1994
Canada
Company lawyers are a recognised legal profession under Canadian law and are required to register with a local bar association. Their communications and legal advice are covered by legal professional privilege (LPP) provided they are delivered in their capacity as lawyers and are meant to be kept confidential.
What is the term used to designate company lawyers in the Canada?
In-house counsel / General Counsel / Head of Legal…
Is the title of “company lawyer” officially recognised by law?
Yes, in-house lawyers in Canada are recognised as fully qualified attorneys.
Are company lawyers required/permitted to register with the national bar?
Yes, in-house counsels need to be members of one of the twelve local bar associations in Canada to be able to practise law.
Are communications and advice provided by company lawyers covered by legal professional privilege?
Yes, in-house lawyers benefit from legal professional privilege under the same conditions as external attorneys when they act in their capacity as legal counsel.
How many company lawyers are estimated to be in Canada?
It is estimated there are currently around 12,100 in-house lawyers practising throughout the ten provinces and three territories of Canada.
Company lawyers in Canada
Company lawyers are recognised as fully qualified attorneys throughout the ten provinces and three territories of Canada. Conditions on access to the profession differ according to local regulations, but generally aspiring in-house lawyers need to complete a law degree and gain admission to one of the twelve local bar admission courses, which usually include written examinations and some duration of practical training. As two separate legal systems co-exist in Canada, i.e., French civil law in Quebec and English common law in all other provinces and territories, the choice of province in which to attend law school also determines the province in which lawyers will be able to practise law, although mobility agreements allow
lawyers licensed in one common-law jurisdiction to practise in another. According to a 2018 survey conducted by The Counsel Network and The Canadian Corporate Counsel Association (CCCA), the financial services and insurance sectors have
the most in-house counsel, followed by oil and gas, and government. The survey also revealed an ongoing demographic shift, with 40% of respondents having less than 10 years’ experience, compared to 30% in 2016.[1]
Legal professional privilege
Communications and legal advice provided by in-house counsel to representatives of their employing corporation are covered by legal professional privilege, although some conditions apply. First, in-house counsel must be acting in their capacity as lawyers when engaged in the pertinent communication, as privilege does not apply to work or advice provided in a different capacity, such as an executive or managerial role, which is the case for any lawyer. Therefore, business, or strategic advice falls outside the scope of legal privilege, while advice relating
to “as to what should be done in the relevant legal context”[2] is protected. However, because the distinction between the two aspects is not always clear, as they are often intertwined in practice, Canadian courts have usually opted for a broad interpretation of the communication’s purpose, and have demonstrated a commitment to protecting privilege in cases of “intertwining legal advice with business advice”.[3] Second, privileged communications must be related to either the request for or provision of legal advice, regardless of ongoing or contemplated legal proceedings against the company. Finally, it must be demonstrated that the communication or document was intended to be confidential to benefit from privilege. Where the conditions are met, it is commonly accepted that there is no distinction between external counsel and in-house counsel acting in their capacity as lawyers when it comes to the legal privilege of their communications. There are however some exceptions to legal professional privilege: no privilege is granted for the purposes of assisting another with the commitment of a crime; privilege is set aside to afford an accused person the right to make a full answer and defence when innocence is at stake; or if there is a ‘clear, serious and imminent threat to public safety’.
[1] In-House Counsel Compensation and Career Survey Report 2018
[2] Samson Indian Band v. Canada, (1995) 125 D.L.R. (4th) 294
[3] Perimeter Transportation Ltd. v. Vancouver International Airport Authority, 2007 BCSC 1120 at paras. 3, 5
India
Company lawyers in India are a rapidly growing profession but are not fully recognised as qualified attorneys. Although they are not able to register as members of the bar while practising in-house, some state courts have argued that the advice they provide in their capacity as lawyers is eligible for the same protection under legal professional privilege as external lawyers.
What is the word for “company lawyer” in Hindi?
कंपनी के वकील (kampanee ke vakeel)
Is the title of “company lawyer” officially recognised by law?
No, the profession of company lawyers is not recognised nor regulated by Indian law.
Are company lawyers required/permitted to register with the national bar?
No, as people in a relationship of employment are specifically forbidden from registering as advocates with one of India’s State Bar Councils.
Are communications and advice provided by company lawyers covered by legal professional privilege?
Yes, provided they are suitably qualified, in-house attorneys can benefit from legal professional privilege, albeit under certain conditions.
How many company lawyers are estimated to be in the United States?
It is currently unclear whether company lawyers in India can benefit from legal professional privilege.
Company lawyers in India
Under current Indian law, company lawyers are not officially recognised as advocates, which is the term used to designate qualified attorneys that are also members of a State Bar Council. Rule 49 of the Bar Council of India Rules – established under the Advocates Act of 1961 – specifically states that advocates must not be full-time salaried employees of any person, government, firm, corporation, or organisation while they are in practice. Consequently, if an advocate wishes to enter a relationship of employment, they would be required to notify the competent bar council and to cease to practise for as long as they maintain the employment relationship. Likewise, advocates are not permitted to personally engage in any business activity or to assume managerial or executive positions on any board of directors. This also means that, unlike external advocates, in-house counsel is not able to represent their employer before the courts and must limit their legal services within the company to formulating extra-judicial legal advice.
Legal professional privilege
It is currently unclear whether the communication and advice delivered by company lawyers in India are protected by legal professional privilege. Generally, professional communications between a legal advisor and a client are protected by the Indian Evidence Act of 1872, which states that the request for and provision of legal advice from a practising advocate registered with a local bar council are protected from disclosure. In addition, Rules 7 and 15 of the Bar Council of India Rules on advocates’ duties forbids attorneys from disclosing communications with and advice given to their clients – under penalty of disciplinary proceedings. However, since the provisions on legal professional privilege only apply to advocates who are members of the bar, and as in-house lawyers are barred from practising as advocates while employed on a full-time basis, it could be argued that in-house lawyers cannot benefit from legal professional privilege.
Nevertheless, the Bombay High Court has diverged from this interpretation and has held that salaried employees who advise their employers on questions of law or matters related to litigation must benefit from the same protection as would any advocate. Therefore, communications made in confidence for the purpose of obtaining or giving legal advice should be protected under the Indian Evidence Act, although the court did specify that this protection could not extend to advice delivered by or to in-house lawyers in a non-legal capacity.46[1] In a later judgment, the same court also clarified that, in order for legal professional privilege to apply, the legal advice in question “must be given by a person who is qualified to give legal advice”[2], indicating that the protection afforded to confidential advice might depend more on the lawyer’s specific professional qualifications than on their relationship of employment.[3]
[1] Municipal Corporation of Greater Bombay v Vijay Metal Works, AIR 1982 Bom 6
[2] Larsen & Toubro Ltd v Prime Displays (P) Ltd [2003] 114 Comp Cas 141 (Bom)
[3] Lexology, Legal Privilege & Professional Secrecy in India (2019)
The United States
Company lawyers are an established and regulated profession in the Unites States and their communication and advice can be covered by legal professional privilege. The criteria for assessing in-house privilege have varied between state jurisdictions and over the years, but there is generally a focus on the purpose for creating the documents when evaluating privilege.
What is the term used to designate company lawyers in the United States?
In-house counsel / General Counsel / Head of Legal…
Is the title of “company lawyer” officially recognised by law?
Yes, in-house lawyers in the United States are recognised as attorneys and must meet the same professional
qualifications and fulfil the same obligations.
Are company lawyers required/permitted to register with the national bar?
Yes, in-house lawyers, like any other law practitioner, are required to pass a state bar
examination to qualify to practise as attorneys.
Are communications and advice provided by company lawyers covered by legal professional privilege?
Yes, provided they are suitably qualified, in-house attorneys can benefit from legal professional privilege,
albeit under certain conditions.
How many company lawyers are estimated to be in the United States?
It is estimated there are approximately 125,000 in-house lawyers currently practising
throughout the 50 U.S. states and territories.
Recent case law and developments
The Court of Appeals for the D.C. Circuit held that all sensitive correspondence handled by in-house counsel should be covered by legal professional privilege (LPP), even when intertwined with strategy and business advice, if obtaining or providing legal assistance remains one of its relevant aspects.
Company lawyers in the United States
Company lawyers are fully recognised as qualified attorneys in the jurisdictions of all 50 U.S. states and territories, although the rules to qualify as a member of a state bar may vary according to local regulations. In most states, to qualify to practise law, aspiring in-house lawyers must complete a juris doctor degree, take, and pass a state bar examination as well as undergo a character and fitness review. While the qualifications required to practise law are the same for external and in-house attorneys, company lawyers face some unique challenges because of the nature of their work. One example is the option of practising across state lines, either because their employer operates in multiple locations across the country or based on employee mobility within companies. To this end, the American Bar Association (ABA) has adopted Rule 5.5 on multijurisdictional practice, which allows lawyers admitted in at least one other United States jurisdiction to “provide legal services through an office or other systematic and continuous presence”[1] in another jurisdiction without needing to undergo the regular admission process. Nevertheless, most U.S. states still require in-house lawyers to obtain a pro hac vice admission in case they wish to represent their employer in a court district outside of their home state jurisdiction.
Legal professional privilege
The rule of confidentiality is a fundamental principle in the lawyer-client relationship, obliging the lawyer to not disclose any information relating to the client’s representation. The attorney-client privilege applies to specifically court proceedings and prevents the lawyer from being called as a witness or to produce evidence regarding the client. The difference between the rule of confidentiality and the attorney client privilege is that the attorney-client privilege only applies to confidential communications between the lawyer and the client, unlike confidentiality, which applies to all confidential information provided by the client.
The communications and advice provided by in-house lawyers are generally protected by legal professional privilege, as an employing corporation is considered a client for the purposes of privilege under U.S. law. Nevertheless, some conditions must be met for LPP to apply, as communications are not protected simply because the in-house counsel from which they emanate is an attorney. Documents that relate only to business advice or which were not originally intended to be kept confidential will likely not be protected by privilege, which means that LPP is usually assessed by courts on a case-by-case basis. Although the method for assessing legal privilege varies depending on the state court performing the review, there seems to be two prevalent approaches to the issue. Traditionally, jurisdictions had opted for the “control group test”, which limits privilege to communications with employees who hold the authority to steer the corporation’s legal affairs. This approach, however, was rejected by the Supreme Court in Upjohn v. United States, which adopted the “subject matter test”.[2] According to this method, privilege applies to communication between in-house counsel and corporate employees for the specific purpose of securing legal advice for the employing corporation. More recently, another approach to in-house privilege has emerged, the so-called “significant purpose test”,[3] according to which communications can be protected provided that giving or seeking legal advice remains at least “one of the significant purposes” of the document.
Corporations have often been subjected to assessing whether and when privilege should be waived in light of governmental investigations. Relevant agencies have, in the past, rewarded such behaviour.[4] However, the US Department of Justice has altered its policies, now forbidding the government from requesting such a waiver, not taking it into consideration when assessing co-operation credit.
[1] ABA Model Rules of Professional Conduct, Rule 5.5: Unauthorized Practice of Law; Multijurisdictional Practice of Law
[2] Upjohn v. United States, 449 U.S. 383, 390-96 (1981)
[3] Kellogg Brown & Root, Inc., 14-5505, 2014 WL 2895939 (2014)
[4] Privilege: The US Perspective (Global Investigations Review), Richard M Strassberg and Meghan K Spillane
Acknowledgements
The comprehensive content of this yearbook is a team effort of highly skilled authors, who have shared their broad knowledge on the situation of in-house counsel in Europe
as well as the status of confidentiality. We would like to thank the following authors for their contributions in the Yearbook 2023:
Jonathan Marsh
President of ECLA
Marcus M. Schmitt
General Manager of ECLA
Marten Männis
Legal Project Manager at ECLA
Javier Ramirez
Chair of Advocacy at ACC Europe
As well as:
Marion Lupin
Alexandra Tiedeman
Vincent von Neuhoff
And all the member associations of the European Company Lawyers Association for their contribution:
Austria
Vereinigung Österreichischer Unternehmensjuristen
Belgium
Institut des juristes d’entreprise
Croatia
Udruga korporativnih pravnika
Czechia
Unie Podnikových Právníků České republiky
Denmark
Danske Virksomhedjurister
England & Wales
The Law Society of England and Wales
Estonia
Eesti Juristide Liidu Ettevõtlusjuristide Ühendus
Finland
Teollisuus Lakimiesten Yhdistysry
France
Association Française des Juristes d’ Entreprise
France
Cercle Montesquieu
Germany
Arbeitsgemeinschaft Syndikusanwälte im Deutschen Anwaltverein
Greece
Ελληνική Ένωση Εμμίσθων Δικηγόρων
Ireland
The Law Society of Ireland
Italy
Associazione Italiana Giuristi di Impresa
Lithuania
Bendrovių ir institucijų teisininkų asociacija
Norway
Norges Juristforbund, NJ-P Private Sector
Poland
Krajowa Izba Radców Prawnych
Portugal
Instituto das Modalidades de Exercício da Advocacia
Slovenia
Sekcija Kororacijskih Pravnikov
Spain
Sección Abogados de Empresa at Ilustre Colegio de la Abogacia de Madrid
Sweden
Sveriges Bolagsjurister
Switzerland
Vereinigung Schweizer Unternehmensjuristen