Revealed: Akzo Nobel threat to global firms

The Akzo Nobel ruling, which controversially stripped in-house counsel of privilege, has again come under fire for having the same impact on non-European private practice lawyers in the EU.

The Akzo Nobel ruling, which controversially stripped in-house counsel of privilege, has again come under fire for having the same impact on non-European private practice lawyers in the EU.

The worrying scenario for global firms has been sparked by a senior silk’s opinion on the matter after concerns were raised by DLA Piper partners about the implications of the 2007 European decisions in AM&S Europe v Commission and Akzo Nobel v Commission.

In the advice, seen by The Lawyer, the senior silk stated: “My clear view is that the written advice from the non-EEA [European Economic Area]-qualified lawyer would not be protected from production [in public proceedings].” The QC goes on to state that having a European lawyer at a meeting or later confirming advice would not qualify that information as privileged.

The ramifications, according to one magic circle partner, could be dramatic, as firms with international competition practices could never integrate fully unless the law is overturned. “A client isn’t going to use, say, a firm’s US lawyer in an EU competition case if they want to stop private issues ending up in the public domain,” the partner told The Lawyer. “It means firms simply can’t have global competition practices in the true sense.”

DLA Piper competition head Mike Pullen confirmed that the firm had sought the opinion on behalf of a client.

“The opinion will be passed on to the [European] Commission as its ramifications add to the debate on Akzo Nobel,” said Pullen.

The news comes as the Law Society seeks leave to intervene before the European Court of Justice in Akzo Nobel.

The representative body is supporting the appeal against the ruling that legal professional privilege does not extend to communications between in-house lawyers and their companies.

Law Society chief executive Des Hudson said in-house lawyers and private practitioners should be afforded the same level of protection.

“It’s in the public interest to ensure that clients can communicate openly and in confidence with their in-house lawyers,” he said.