LAW DEPARTMENT MANAGEMENT
As in-house attorney-client privilege comes under pressure in Europe, Canadian legal departments look at their own practices.
By Andi Balla
The in-house privilege of being
On a February night in 2003, the European Commission, the execu- tive arm of the European Union, sent its competition officials to raid the offices of an international chemical company in Manchester, England. Aided by their U.K. colleagues, they were investigat- ing alleged anti-competitive behaviour. But when the officials stumbled on five documents — two dealing with com- munications with external counsel and three with the company's Dutch gen- eral counsel — they stopped and made
a judgment call. The EU officials sealed the external counsel communications in a bag, as these documents are protected by litigation privilege in the European Union, but decided the in-house com- munications were fair game in their investigation — a practice that was seen as valid among many of the 25-member bloc's civil law countries. The regulators' decision to use the
in-house counsel communications in their case, challenged by the company all the way to the EU's highest court
— the European Court of Justice in Luxembourg — would ultimately offi- cially strip all EU in-house lawyers of the right to have privileged communi- cations with their companies. But beyond Europe, last September's
decision by the European Court of Justice in Akzo Nobel Chemicals Ltd. and Akcros Chemicals Ltd. v. European Commission caused concern among in- house lawyers everywhere, including Canada, where solicitor-client privilege, regardless of whether it is in-house or
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