EU legal professional privilege post-Brexit

This guidance reflects ongoing discussions on EU legal privilege (LPP) for UK practitioners, especially those operating in the EU as third country lawyers following the end of the transitional period.

The advice is relevant for:

  • UK lawyers based in the EU after 2020 who choose to provide legal advice as a third country lawyer
  • UK lawyers based in the UK but providing advice on cross-border EU operations

EU legal privilege

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

Until the end of the transitional period, UK qualified lawyers are covered by EU LPP.

Under Articles 86 and 92 respectively EU courts and EU bodies retain jurisdiction over judicial cases and administrative proceedings which are initiated during the transitional period.

Articles 88 and 94 cover the procedural rules for each, and these ensure 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 are not sufficiently independent from the company and therefore their advice is not independent legal advice.

There are a number of important caveats, for example the summarising of external legal advice by in-house lawyers does enjoy privilege, as it is the matter itself which is 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 an EEA lawyer, will become a third country lawyer.

Third country lawyers practising in the EU have not been held to be covered by 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 (para 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 exclusion of EU LPP is one of the reasons we continue to encourage UK qualified lawyers based in the EU 27 to requalify as an EEA lawyer where possible before the end of the transitional period.

To assist with EEA requalification post 2020, we’ve been calling, with regards to the upcoming UK-EU FTA, for a robust framework for mutual recognition of qualifications, as developed in CETA, which should be coupled with a clear path for requalification into the host state legal profession.

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 (Justine N Stefanelli, ICLQ vol 60, April 2011, pp 545-556).

This has largely been due to concerns over whether such a position is compatible with the 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.

Yet, any shift in the position of the CJEU is not expected in the short term.

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 and litigation between private parties.

Given the difference in scope, national LPP rules should not conflict with EU legal privilege, but they’ll differ depending on the member state.

In the case of the Belgian Brussels Bar, non-EU lawyers are permitted to register on the B-List, but this does not grant a range of rights or privileges, including legal privilege.

Practical guidance

The fact that non-EU lawyers based in the EU, or involved in cross-border EU proceedings, have experienced this difficulty to date has led to the emergence of several practical solutions which will be relevant to UK lawyers post-2020 (assuming they have not sought to requalify as an EEA lawyer).

It has become common practice for US lawyers to work on legal advice but to co-operate with EU lawyers, who consequently can sign any issued guidance/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 in communications this is specifically referenced (ACC, Quick Overview: Brexit, UK lawyers, and Legal Professional Privilege, 26 Sep 2019).

Where non-EU lawyers are providing advice, engagement letters may be able to help clarify their roles and how they are assisting in, 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 an EU lawyer.

It’s strongly suggested that UK lawyers consider before the end of 2020 how they will deal with EU clients 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.

This is applicable to both UK lawyers seeking to remain in the EU, subject to the upcoming FTA negotiations, and UK lawyers based in the UK but involved in EU cross-border advice.