EU legal professional privilege after Brexit

Scope of EU legal professional privilege

The scope of EU LPP concerns communications relating to a European Commission administrative or enforcement procedure.

Unlike English and Welsh law, there is no distinction between legal advice privilege (LAP) and litigation privilege (LP).

The only factor is whether the matter falls within the remit of protected communications.

EU LPP does not concern a company’s right to withhold privileged documents from private parties or relate to other government authorities.

National LPP rules continue to apply in all national administrative procedures.

EU LPP is derived from the European Convention on Human Rights, the EU Charter on Fundamental Rights, as well as other principles at the national level.

The scope of protection in a host country administrative procedure under national law may be either broader or narrower than EU LPP, depending on the country.

A major limitation of EU LPP is that it does not apply to lawyers admitted to practise in jurisdictions outside of the European Economic Area (EEA).

In addition, EU LPP has been held – in case law (Akzo Nobel C-550/07) and subsequent Commission working documents – not to apply to in-house lawyers.

This is on the basis that in-house lawyers are not sufficiently independent from the company, so their advice is not independent legal advice. This reflects the treatment of in-house lawyers in most civil law jurisdictions.

Importantly, however, the summarising of external legal advice by in-house lawyers enjoys privilege because the matter itself is held to be privileged, provided that no commentary or opinion is added to the summary.

EU LPP also applies to a document that is part of the preparation for a request for external legal advice.

The European Commission has no direct jurisdiction over UK-qualified lawyers working in private practice or in-house in England and Wales after Brexit, where their communications with clients will ordinarily be privileged in domestic courts.

However the Commission may override that privilege where those communications are sent to, or are available to, clients (including employers, in the case of in-house lawyers) within the EU who are subject to its jurisdiction.

EU rules on third country lawyers

Following the end of the Brexit transition period, UK lawyers who have not been admitted to practise as EEA lawyers are treated as third-country lawyers.

This is not impacted by the EU-UK Trade and Cooperation Agreement.

Third-country lawyers practising in the EU have been held to not be covered by EU LPP.

The underlying reasoning was touched upon in the appeal in Akzo Nobel C-550/07, where it was stated in the AG’s opinion (paragraph 190), endorsed by the court, that there is:

“no adequate basis for the mutual recognition of legal qualifications and professional ethical obligations to which lawyers are subject in the exercise of their profession. In many cases, it would not even be possible to ensure that the third country in question has a sufficiently established rule-of-law tradition which would enable lawyers to exercise their profession in the independent manner required and thus to perform their role as collaborators in the administration of justice.”

The existing EU position on excluding LPP for third-country lawyers has been a longstanding source of grievance for non-EU lawyers based in Europe, and there have been calls for the EU to re-examine its position.

This has largely been due to:

• concerns over whether such a position is compatible with the European Convention on Human Rights (ECHR), to which the EU is obliged to accede
• its detrimental impact on EU-US trade, where US corporates have flagged concerns over whether advice from US counsel on EU operations could be held not to be subject to legal privilege

However, any shift in the Court of Justice of the European Union’s position is not expected in the short term.

Practical guidance

Given the challenges, non-EU lawyers have explored a number of practical solutions now relevant to UK lawyers who do not hold an EEA qualification.

For example, it is common practice for US lawyers based in the EU to co-operate with EU lawyers when providing legal advice, so EU co-counsel can consequently sign off on any issued guidance or advice to clients.

This is most applicable where law firms employ both EU and non-EU lawyers.

Care should be taken to avoid the temptation to use a 'rubber stamp' from an EU lawyer, as it's likely that a substance-over-form test will be applied to any question of authorship of relevant work-product.

The Association of Corporate Counsel (ACC) identified other practical steps that can be used by non-EU/EEA lawyers. These include:

• where possible, representations should be led by EU-admitted lawyers, and this should be specifically referenced in communications
• where non-EU lawyers are providing advice, engagement letters should clarify specific roles and how non-EU lawyers are assisting, but not leading, the representation

Additionally, the ACC notes that in-house non-EU lawyers can provide internal documents that will be privileged if they have been generated exclusively for the purposes of obtaining legal advice from an EU lawyer.

UK lawyers based in the EU and/or advising EU-based clients should review how they provide and/or participate in legal advice to ensure it can be relied upon in EU administrative or enforcement proceedings without jeopardising client confidentiality.

Steps to ensure compliance and/or protection in the case of an investigation by EU authorities can include:

• being aware that any additions not covered by EU LPP to advice that is covered by EU LPP are not themselves protected and risk the privilege of the original advice
• clearly labelling advice that comes from external, EU-qualified legal counsel – this can be done, for example, by labelling both hard and soft copies of documents, as well as the folders

It's also recommended, wherever possible, that English and Welsh solicitors requalify in an EEA jurisdiction and act in their capacity as EEA-qualified lawyers when providing advice to EU clients.

National legal privilege

A lawyer practising in an EU member state should also bear in mind the national rules on LPP.

These rules relate to:

• the confidentiality of legal communications with regards to national courts
• investigations by national authorities
• litigation between private parties

Following the end of the Brexit transition period, the respective member state is no longer bound by the EU Lawyers Directives towards UK lawyers.

These directives had, among other things, enabled UK lawyers to practise in a host EU member state as registered European lawyers (RELs), which in turn ensured that both host-country and home-country legal privilege attached to them.

Post-Brexit, UK lawyers can no longer register as RELs by virtue of their UK legal professional qualification, meaning there is no guarantee of legal privilege before national courts in certain jurisdictions.

This is often the case where:

• the national regime does not contain provisions for non-EEA lawyers, such as foreign legal consultant status, or
• the concept of legal professional privilege does not exist

Jurisdictions where there is no clear legal assurance of national LPP for foreign lawyers include:

• Bulgaria
• Croatia
• Denmark
• France
• Greece
• Hungary
• Italy
• Latvia
• Lithuania
• Luxembourg
• Slovakia
• Slovenia
• Sweden
• Switzerland

Even in jurisdictions where legal privilege is explicitly granted to foreign lawyers, this can be subject to registration with the national bar.

For example, in France a UK solicitor registered as a foreign legal consultant can advise clients on home country law and public international law, for which French LPP (professional secrecy) will apply.

This contrasts with the English law position, which recognises privilege over communications between lawyers acting in their professional capacity and their clients (or employers, in the case of in-house lawyers), regardless of a lawyer's national bar registration, as long as such communications are made in connection with the provision of legal advice: see PJSC Tatneft v Bogolyubov [2020] EWHC 2437 (Comm).

It's also important to make sure that a UK solicitor is practising in a manner that is compliant with local bar, tax and immigration requirements. These may differ from state to state.

In some EU countries, the practice of law without membership of the local bar (whether as a locally qualified lawyer, registered European lawyer or foreign legal consultant) is an offence, and an offender is unlikely to succeed in arguing that legal privilege attaches to an illegal activity.

UK lawyers should check the rules of relevant bars to comply with any local requirements.