European Court of Justice Finds In-House Legal Advice Not Protected by Legal Professional Privilege
On September 14, 2010, the European Court of Justice (“ECJ”) decided Akzo Nobel Chemicals, Ltd. and Akcros Chemicals, Ltd. v. Commission (“Akzo Nobel”) and affirmed the European Court of First Instance’s opinion excluding communications between companies and their in-house counsel from protection under the E.U.’s legal professional privilege rules. Case C-550/07 P, Akzo Nobel (September 14, 2010) (affirming Joined Cases T-125/03 and T-253/03, Akzo Nobel Chemicals, Ltd. v. Comm’n (Sept. 17, 2007)). In the U.S. and many other countries, communications with in-house counsel are protected from involuntary disclosure by attorney-client privilege. Akzo Nobel highlights the possibility that for companies subject to scrutiny by European Union institutions, such as the European Commission, communications with in-house counsel may be seized and used as evidence in E.U. courts. We anticipate that this exposure will lead to future disputes about the loss of privilege under U.S. law.