Knowing what information will be subject to disclosure to whom, and how to minimise the likelihood that sensitive information will be disclosed, should form a central plank of any company’s risk management and compliance strategy.
The most effective shield for sensitive documents is legal privilege. If documents are privileged, antitrust regulators and third parties (e.g. complainants) are not entitled to see them and they cannot be relied upon in litigation. In the EU, legal privilege rules vary as amongst Member States and as between national and EU investigations. For example, in nine EU member states, legal privilege extends to communications between in-house/employed lawyers and their employee clients; in 19 it does not.
In EU investigations, legal privilege does not extend to communications with in-house lawyers. Documents may, however, benefit from privilege if they were prepared by in-house lawyers solely for the purpose of seeking legal advice from an external lawyer in exercise of the rights of defence.
In order to benefit from privilege, the external lawyer must in all cases be qualified to practise in the EU. Advice from external US lawyers who are not also qualified to practise in the EU will not be privileged.
Therefore, as the EU rules on legal privilege currently stand, the following principles apply:
Advice from EU qualified external lawyers
Communications with EU qualified external lawyers seeking advice in exercise of the client's rights of defence
Internal company notes confined only to reporting the text or content of legal advice received from an EU qualified external lawyer in exercise of the rights of defence
Advice from in-house counsel
Documents prepared by in-house counsel which are then discussed with an external lawyer
Advice received from an external lawyer which has then been annotated or updated by in-house counsel
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