ACSeS warns on presentation of legal advice following ECJ decision on in-house professional privilege
The Association of Council Solicitors and Secretaries (ACSeS) has warned local authority lawyers to take care over the presentation of the advice they give, following the recent decision b the European Court of Justice (ECJ) that communications between in-house lawyers and their employer clients in relation to EU Commission Competition Investigations, do not attract legal professional privilege.
In August, the First-Tier Tribunal (Information Rights) ruled that advice given by a solicitor in the role of monitoring officer did not attract legal professional privilege, and although the ECJ's decision applies only to legal advice given in the context of competition law investigations, ACSeS warned that “local authority lawyers giving privileged legal advice to their councils (perhaps in the capacity of monitoring officer or as Chief Legal Officers), should be careful to make clear the nature and context of their legal advice.”
ACSeS President, Dr. Mirza Ahmad, criticised the implications of the ECJ's ruling in the Akzo Nobel Chemicals Ltd v. Commission of the European Communities (C-550/07 P) case. He said: "I regret that the ECJ has failed to give due weight to the substantial professional integrity and independence of employed lawyers. Positioned as we are at the heart of corporate and ethical governance, we are ideally positioned to ensure the highest standards of probity, propriety and good governance from the earliest stages of decision-making to positive solutions and outcomes for our employers.
"The ECJ should have used this golden opportunity to update the law in this area and help to raise good governance standards across the EU. I entirely support, therefore, the submission that '. . .in-house lawyer enrolled at a Bar or Law Society is, simply on account of his obligations of professional conduct and discipline, just as independent as an external lawyer'.
"I also do not accept the validity of the ECJ's view that the in-house lawyer's economic dependence on and close ties with the employer act to compromise his/her professional judgement or independence. I know that ACSeS members are constantly having to give robust and independent professional advice which, whilst in the interests of their authorities, may not, on occasions, be to the liking of their employers."
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