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CCCA_V4No4_Privilege-FIN.qxd:CCCA_V1No1_DriversSeat-FIN.qxd 10/27/10 3:27 PM Page 35 Don’t assume that solicitor-client privilege Feature extends to in-house counsel everywhere. As legal departments abroad have learned, counsel must remain vigilant to navigate this murky area. Aquestion of privilege By Bev Cline n-house counsel around the world were hoping that the European Court of Justice would finally reverse its 30-year refusal to recognize the application of solicitor-client privilege to Icompetition law matters in the EU. But their hopes were in vain. In a highly anticipated deci- sion handed down in September, the ECJ dismissed the appeal in Akzo Nobel Chemicals Ltd. v Commission, denying the application of legal professional privilege, as it is called there, to commu- nications between in-house lawyers and their employer’s representatives. The court decision “is very disappointing, although it was not unexpected given that, in April, the Advocate-General had given an opinion advising against the recognition of legal privilege for in-house lawyers,”says Jean-Charles Savouré,chairman of the AFJE,France’s in-house counsel asso- ciation, and associate general counsel at IBM Europe. It must be noted, he added, that the decision applies only to European competition/antitrust matters and is of no effect on matters — including competition law — that fall under the national jurisdiction of EU member states. What the Akzo Nobel decision ultimately does, however, is leave many in-house lawyers strug- gling to reconcile their need to communicate independence of thought to their clients in a global context where different countries have different rules about privilege. The case concerned a claim for privilege with respect to documents — two e-mails in particu- lar — seized during an EU investigation on possible anti-competitive practices at the U.K. prem- CARLOS AMAT ises of Akzo Nobel’s subsidiary Akcros Chemicals.The e-mails had been exchanged between the managing director and Akzo Nobel’s co-ordinator for competition law,a Dutch lawyer working for the paint company’s legal department. HIVER 2010 CCCA Canadian Corporate Counsel Association 35