EU legal professional privilege and Brexit

This article is particularly relevant to UK lawyers based in the EU who provide legal advice in their capacity as UK solicitors; and those providing advice on cross-border EU operations who are based in the UK.

1. What is legal privilege?

• Privilege is a fundamental legal right that allows individuals and corporate entities to seek confidential legal advice and avoid disclosure of confidential information.
• There are two main types of privilege under English law: legal advice privilege and litigation privilege. There are strict rules governing when each type applies (see section 8). 
• Not all communications with lawyers and other advisers are protected and privilege can be lost by circulating privileged material.

2. EU vs English law privilege

• The EU has its own rules when it comes to legal professional privilege (LPP) and the application of those rules to UK lawyers has changed since the UK left the EU on 31 December 2020. EU member states also have their own LPP rules separate from EU LPP and Brexit has affected the application of these national rules (see section 7). 
• Which LPP rules apply depends on the nature of the advice sought and the jurisdiction(s) in which the companies/individuals seeking the advice operate in.

3. What is EU LPP?

• EU LPP is part of the EU's recognition that every individual has the fundamental right to legal advice without fear that the information disclosed for the purposes of obtaining that advice will be used against them. It grants companies the ability to prevent disclosure of documents in the course of a European Commission investigation, particularly in relation to EU competition rules. 
• EU LPP's scope of application is quite narrow and only grants confidentiality to communications relating to the European Commission's administrative or enforcement procedure. It does not enable companies to withhold documents from private companies or government authorities.

4. Conditions for claiming EU LPP

• In the case of AM&S France Ltd v Commission, the European Court of Justice (ECJ) set out strict requirements covering the extent to which companies can prevent disclosure of their documents to the European Commission.
• The following conditions are cumulative and both must be satisfied to trigger EU LPP:

1. The correspondence was sent for the purpose of the client's right to defence to the European Commission's investigations; and
2. The correspondence must be with an independent external lawyer, who is qualified to practice in a European Economic Area member state. It is important to note that advice from an in-house lawyer does not fall under the scope of EU LPP.

• Since the end of the transition period, legal professionals qualified to practice in the UK do not satisfy the above-mentioned requirements. They will therefore be subject to a different set of rules (see section 5) unless an agreement on preferential market access for legal services is reached in the future.

5. EU LPP Post Brexit

• Following the end of the transition period on 31 December 2020, lawyers qualified to practice in the UK are treated as "third-country lawyers".
• This means UK lawyers can no longer rely on EU LPP and must exercise extra caution when advising clients on cross-border EU operations or when practising as a UK lawyer in the EU.
• Correspondence with a UK lawyer is therefore not subject to EU LPP and is disclosable to the European Commission. The justification for this was expressed in the Attorney General's opinion in the case of Akzo Nobel C-550/07, where he stated: "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".

6. Practical tips to ensure that EU LPP continues to apply

• There are practical ways in which UK lawyers can ensure correspondence with clients remains protected under EU LPP. Many of these practices have already been widely adopted by US lawyers who operate in the EU.
• The Association of Corporate Counsel (ACC) has provided useful tips, including:

1. Ensure that advice to European clients is signed off by a colleague who is qualified in the EEA.
2. Ensure representations are led by EU-admitted legal practitioners.
3. Ensure that engagement letters clarify that non-EU admitted lawyers are assisting but not leading in providing representations.
4. Communications talking about representations (made by an EEA qualified lawyer) should specifically reference said representations.
5. Exercise caution when forwarding privileged information to a non-EU admitted lawyer. The same practice when forwarding to in-house legal counsel should be adopted.

7. National legal privilege in EU Member States

• It is also important to note that many of the EU member states have their own national LPP rules. These rules apply to legal communication in relation to investigations conducted by national authorities and disputes within national courts in member states.
• Prior to the UK's departure from the EU, UK lawyers benefitted from what is known as home title recognition under Lawyers' Services Directive (1977/249/EEC) (LS Directive). This gave UK lawyers the legal privilege benefits enjoyed by any national lawyer within an EU member state. 
• The UK's departure from the EU now means that home rule recognition no longer applies to UK lawyers. They are now treated as foreign lawyers in all EU member states. They must therefore must have regard to the national privilege rules on foreign lawyers when operating nationally within an EU member state.

8. National legal privilege in relation to foreign qualified lawyers in England and Wales

• Legal professionals practising in the EU should also be aware of England and Wales' national rules on privilege. This is because as of 1 January 2021, these rules will apply to EU lawyers practising in the UK.
• National privilege rules in England and Wales do not differentiate between advice provided by external, in-house and foreign lawyers.
•  Fieldfisher was recently involved in the case of PJSC Tatneft v Bogolyubov and others [2020] EWHC 2437 (Comm), which affirmed this position. In that case, it was held that privilege also extends to communications with in-house and private practice foreign lawyers without regard to their particular national standards, regulation or rules on legal privilege, as long as those lawyers are carrying out "the role of lawyer". The fact that in-house lawyers are not independent but paid employees of the recipient of their legal advice is irrelevant under English law. There is also no additional requirement that foreign lawyers be "appropriately qualified" or regulated as "professional lawyers". 
• There are two types of legal privilege in England and Wales:

Legal Advice Privilege: This applies to all communication between a lawyer and their client where the dominant purpose of said communication pertains to the provision of legal advice in the relevant context. It is important to note that communication between a lawyer and the client's employees or third parties does not satisfy this definition.

Litigation Privilege: This applies once litigation is pending, existing or reasonably contemplated. The scope of this privilege extends to communication between the client or their legal representative and a third party, where the dominant purpose of said communication is for use in or obtaining evidence for litigation. This includes preparatory work.