Copyright 2021 CEP Magazine, a publication of the Society of Corporate Compliance and Ethics (SCCE).
The principle of legal professional privilege is a cornerstone of the legal profession—at least in common-law jurisdictions such as those in England and Wales, Ireland, Northern Ireland, the United States, Canada, South Africa, Australia, New Zealand, etc. It enables clients to correspond with their lawyers for the purposes of seeking legal advice in the knowledge that this correspondence is confidential and protected from disclosure. The concept of legal privilege in European Union (EU) law is somewhat narrower, perhaps understandably so given the combination of common- and civil-law jurisdictions that make up the EU (both before and after Brexit). At its narrowest, EU legal professional privilege (EU privilege) has always been concerned with the notion that advice between a company and its legal counsel can be protected from disclosure to the European authorities in the course of an investigation. Typically, this would be in the context of antitrust investigations by the European Commission.
The extent of the EU privilege rules has been a matter of some contention, particularly for in-house lawyers, for some time. There can be no doubt that Brexit has further complicated the situation. Now that the United Kingdom (UK) is no longer a member state of the EU, it follows that lawyers qualified in its constituent legal systems of England and Wales, Northern Ireland, and Scotland will be treated as third-country lawyers for the purposes of EU law. This in turn will raise questions for clients continuing to seek international legal advice from UK solicitors and what protections, if any, such advice will have against disclosure to European authorities in the course of an investigation. In this article, we explore the concept of EU privilege as it has evolved in the case law of the European courts and the impact of Brexit on the status of advice by UK solicitors.