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End of transition period guidance: EU legal professional privilege
This guidance sets out the implications for UK solicitors in relation to EU legal professional privilege (LPP) from the expiry of the transitional period.
It’s relevant for UK lawyers:
- based in the EU after 2020 who choose to provide legal advice as a third country lawyer
- based in the UK but providing advice on cross-border EU operations
Scope of EU legal professional privilege
The scope of EU LPP concerns communications relating to a Commission administrative or enforcement procedure.
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 will continue to be relevant in all national administrative procedures.
UK qualified lawyers are covered by EU LPP until the end of the transitional period.
Under Articles 86 and 92 of the Withdrawal Agreement, EU courts and EU bodies retain jurisdiction over judicial cases and administrative proceedings which are initiated during the transitional period.
Further, Articles 88 and 94 cover the procedural rules for each, and these ensure that existing EU rules and standards apply, including treatment of lawyers who are representing or assisting a party in relation to such proceedings.
The major limitation within EU legal privilege is that it has been held in case law (Azko Nobel C-550/07) and in subsequent working documents of the Commission not to apply to in-house lawyers, on the basis that they’re not sufficiently independent from the company and therefore their advice is not independent legal advice.
There are several important caveats: for example, the summarising of external legal advice by in-house lawyers does enjoy privilege, as it’s the matter itself that’s held to be privileged. Similarly, a document which is part of the preparation of a request for external legal advice is protected.
EU rules on third country lawyers
After the end of the transitional period, UK lawyers who have not requalified as EEA lawyers will be treated as third country lawyers.
Third country lawyers practising in the EU have not been held to be covered by legal privilege.
The underlying reasoning was touched upon in the appeal in Akzo Nobel C-550/07, where it was stated in the AG’s opinion (para 190), endorsed by the court, that there‘s:
“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 long-standing 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, and following 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.
Any shift in the Court of Justice of the European Union’s position is not expected in the short term.
The fact that non-EU lawyers based in the EU, or involved in cross-border EU proceedings, have experienced this difficulty has led to the emergence of a number of practical solutions which will be relevant to UK lawyers post-2020 (assuming they have not sought to requalify as EEA lawyers).
In particular, it has become common practice for US lawyers based in the EU to co-operate with EU lawyers when providing legal advice, so that EU counterparts or colleagues 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.
Other practical steps have been identified by the Association of Corporate Counsel (ACC) and include ensuring that where possible representations are led by EU-admitted lawyers and that this is 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 non-EU lawyers can provide internal documents which will be privileged if they have been generated exclusively for the purposes of obtaining legal advice from anEU lawyer.
It’s strongly recommended that UK lawyers based in the EU review before the end of 2020 how they will provide and/or participate in legal advice which could be relied upon in proceedings subject to an EU administrative or enforcement procedure without jeopardising client confidentiality.
National legal privilege
A lawyer practising in an EU member state post-2020 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 and litigation between private parties.
Upon the expiry of the transitional period, the respective member state is no longer bound by the EU Lawyers Directives which ensure recognition of home title by a UK lawyer, and the privileges which accompany this, including legal privilege. Instead, national rules apply.
The national rules differ across the EU, and UK lawyers are warned there’s 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 where the concept of legal professional privilege does not exist.
Jurisdictions where there’s no clear legal assurance of national LPP for foreign lawyers include:
Further, even in those jurisdictions where legal privilege is explicitly granted to foreign lawyers, this can be subject to registration with the national bar.
UK lawyers are therefore urged to check the rules of relevant bars, to ensure compliance with any local requirements.