Legal Professional Privilege Post-Brexit – Anti-trust/Competition Law

Copyright 2021 CEP Magazine, a publication of the Society of
Corporate Compliance and Ethics (SCCE).

The principle of legal professional privilege is a cornerstone
of the legal profession—at least in common-law jurisdictions
such as those in England and Wales, Ireland, Northern Ireland, the
United States, Canada, South Africa, Australia, New Zealand, etc.
It enables clients to correspond with their lawyers for the
purposes of seeking legal advice in the knowledge that this
correspondence is confidential and protected from disclosure. The
concept of legal privilege in European Union (EU) law is somewhat
narrower, perhaps understandably so given the combination of
common- and civil-law jurisdictions that make up the EU (both
before and after Brexit). At its narrowest, EU legal professional
privilege (EU privilege) has always been concerned with the notion
that advice between a company and its legal counsel can be
protected from disclosure to the European authorities in the course
of an investigation. Typically, this would be in the context of
antitrust investigations by the European Commission.

The extent of the EU privilege rules has been a matter of some
contention, particularly for in-house lawyers, for some time. There
can be no doubt that Brexit has further complicated the situation.
Now that the United Kingdom (UK) is no longer a member state of the
EU, it follows that lawyers qualified in its constituent legal
systems of England and Wales, Northern Ireland, and Scotland will
be treated as third-country lawyers for the purposes of EU law.
This in turn will raise questions for clients continuing to seek
international legal advice from UK solicitors and what protections,
if any, such advice will have against disclosure to European
authorities in the course of an investigation. In this article, we
explore the concept of EU privilege as it has evolved in the case
law of the European courts and the impact of Brexit on the status
of advice by UK solicitors.

Read the full article in PDF format: Legal professional privilege
post-Brexit. You can also view the article via the COSMOS website.

The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.