Privilege afforded to communications between a lawyer and his client by the European Court of Justice.
The ultimate test which needs to be carried out in respect of whether communications between a lawyer and his client which involves legal advice ought to be legally privileged or otherwise, is to assess whether such legal advice was given by a lawyer ‘in full independence’, namely whether or not the advice provided by a lawyer who, ‘structurally, hierarchically and functionally, is a third party’ in relation to the person or undertaking receiving the advice.
According to the European Court of Justice, the concept of an independent lawyer is not based on a requirement of a membership of a bar or Law society, and it is neither based on a requirement for such lawyer to be subject to professional discipline and ethics, but is rather based on a specific requirement for such a lawyer not to be bound to his client by a relationship of employment.
Essentially this means that for the European Court, any communications with in-house lawyers who are employed by an undertaking, are expressly excluded from the legal professional privilege afforded to independent lawyers.
Such a position clearly puts in-house lawyers and external lawyers in very different situations, hence why according to the Court, owing mostly to the integration of in-house lawyers with their employers, no infringement of the principle of equal treatment arises when they are treated differently from each other in respect of legal privilege protection rules.
In conclusion, according to the Court, communications between a lawyer and his client are protected only if such communications are made for the purposes of the exercise of the client’s rights of defense and that they also emanate from independent lawyers.
Dr Mark Muscat
Court of First Instance, joined cases T-125/03 and T- 253/03