Some doubt about privilege

There’s a a storm (or is it a gaggle?) of negative stories brewing about the ECJs decision saying legal professional privilege (LPP) does not apply to in-house counsel.  Now, I’m going to confess immediately that this is an area of professional practice where I have not made up my own mind about where I stand on the debates surrounding LPP but it is worth pointing out that LPP is not an unalloyed good.  I have a number of reservations with the arguments advanced for LPP, but let me concentrate on one that seems to me to be somewhat difficult to accept.  Take this one from the Guardian today. “Unfortunately, the decision reinforces the view that the EU and its institutions are out of touch with the reality of day-to-day commercial life, and it fails to recognise the genuine desire of in-house lawyers and business to be legally compliant. In real life it is often this very closeness that allows in-house lawyers to assist business (and indeed in many instances external lawyers) in performing the complex factual, legal and economic analysis required in “self-assessing” antitrust risks, as required by EU law.”    The problem I have with this is, if there is a genuine desire to comply, and the company and their lawyers are doing all that they can to comply, then how will the ‘privileged’ material damage them?  Such self-assessments will presumably be positive evidence of the compliance.  If the company wants to avoid compliance, or argue in favour of a particular interpretation of what what constitutes compliance. or only comply in part, then the evidence would be more problematic, but that is a rather different argument to one that promotes legal compliance.  That approach allows lawyers and companies to be creative in their interpretation of legislation to advance their client’s interest but it is more open to doubt as to whether it is advancing the public interest (and privilege is ultimately there to protect the public interest).

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Postscript

The Law Society has issued this note by way of information.

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About Richard Moorhead

Director of the Centre for Ethics and Law and Professor of Law and Professional Ethics at the Faculty of Laws, University College London with an interest in teaching and research on the legal ethics, the professions, legal aid, access to justice and the courts.
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