Akzo Nobel Chemicals and Akcros Chemicals v. Commission, Case C-550/07 P (2010)

Brief Summary
The European Union’s high court, the Court of Justice, held that a corporate client’s communications with its in-house lawyers were not privileged because such lawyers are not independent from their clients.

Complete Summary
The Court of Justice addressed the issue of whether the legal professional privilege (LPP)—Europe’s version of the attorney-client privilege—applied to communications with in-house counsel. The LPP protects lawyer-client communications which involve an attorney who is independent from the client. The independence requirement is designed to ensure that the lawyer’s role in collaborating in the administration of justice is not overridden by the attorney’s role in advancing the client’s interests.

The Court held that independence under the LPP requires the absence of an employment relationship between lawyer and client. The Court noted that, “an in-house lawyer is less able to deal effectively with any conflicts between his professional obligations and the aims of his client.”

This holding was not precluded, the Court noted, by the principle of equal treatment, which prohibits comparable situations from being treated differently and different situations from being treated in the same way. The Court held that, despite being subject to the same ethical rules as outside counsel, in-house lawyers are in a different situation based on, inter alia, their financial dependence on their employers.

Significance of Opinion
This holding may encourage corporations that do business in Europe to utilize outside counsel when seeking candid legal advice. Notably, this decision applies to European Union courts, but not to the courts of the Union’s member states. The member states do not have uniform LPP rules, and some states treat communications with in-house lawyers as privileged.

This alert has been prepared by Hinshaw & Culbertson LLP to provide information on recent legal developments of interest to our readers. It is not intended to provide legal advice for a specific situation or to create an attorney-client relationship.

REGISTER NOW for the Tenth Annual Legal Malpractice & Risk Management Conference and receive a 10% Early Bird Discount before December 1, 2010

Attend the Tenth Anniversary of the industry's premier event focused on current and important developments in the law and litigation of malpractice claims, legal malpractice insurance and risk management strategies. Each conference panel examines recent case law and significant developments throughout the last year. One and one-half days will be devoted to legal malpractice (February 16-17), and one and one-half days will be devoted to risk management (February 17-18). The Conference will be held in Chicago at The Westin Chicago River North Hotel.

Earn up to 15 hours of CLE credit, including up to 6.50 ethics credit!

Conference Topics

Legal Malpractice Sessions (February 16-17) 

• Settle and Sue: Is Legal Malpractice a Remedy for An Inappropriate Settlement or for the Settlement That Did Not Happen?
• What You Need to Know About Lawyers’ Liability Under the Federal and State Securities Laws
• Establishing a Fiduciary Breach
• Using Pretrial Remedies — Anti-SLAPP Statutes, and Other Evidentiary Early Disposition Motions
• Significant Developments in Litigating Legal Malpractice Claims
• Insurance Law
• Stump the Panel

Legal Malpractice/Risk Management Cross-Over Sessions (February 17)

• The Insurance Marketplace and Considerations
• Who is a “Partner” — The Legal Implications of Titles
• Mitigating or Avoiding the Loss

Risk Management Sessions (February 17-18)

• The General Counsel Forum
• Don’t Ignore the “Basics” — Engagement, Disengagement and End-of-Representation Letters
• The Growing Threats to Client (and Firm) Data — Managing Technology to Meet the Challenges
• High Tech Tools — and Traps — for Mergers and Lateral Hiring
• On the Horizon: Is Susskind Right? Technology and the Future of Large Law Firms

Registration Fees

$1,300 for the Entire Conference — February 16-18
$925 for the Legal Malpractice Sessions Only — February 16-17
$925 for the Risk Management Sessions Only — February 17-18

Discounts (maximum 15% discount per registration)
Returning registrants receive 5% off the conference price Multiple registrants receive 15% off when two or more colleagues from the same company register for the conference
Early birds receive 10% until December 1, 2010

For more information, please visit www.LMRM.com or click here to Register Now!

To speak with the Conference Planner, Katherine McCormack, please call 312-704-3329.