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.
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.
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).
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)
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.
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
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
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)
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
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.
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.
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.
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
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)
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
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.
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)
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
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.
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.
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)
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.
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)
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
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
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)
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