Legal Village

Akzo Nobel ruling cannot divide our profession

Posted 18/02/2008 by Andrew Holroyd

In my last post I underlined the Law Society’s strong concerns over the allegations that solicitors have been routinely bugged at Woodhill prison. It goes without saying that legal professional privilege and the solicitor-client relationship are absolutely sacrosanct and doing everything we possibly can to protect it is one of our top priorities.

Today, we have announced that we shall be seeking leave to intervene before the European Court of Justice (ECJ) in the Akzo Nobel case.

For those of you who don’t know the background, Akzo Nobel is a Netherlands-based chemicals company. It is seeking a review and annulment of the findings of the Court of First Instance in September 2007 upholding a European Commission decision to read a number of its documents obtained during an investigation.

The crux of the case is simple. Akzo Nobel argues that the documents disclosing communications between company personnel and its in-house lawyer team were protected by lawyer-client confidentiality - and that the Commission’s action was therefore unlawful.

We agree. As it stands, this anomaly effectively splits our profession and it is time it is corrected. It shouldn’t matter if you are a legal aid practitioner, a solicitor overseeing a multimillion-pound merger or in-house counsel. We are one profession. We all share the same ethical values, the same education and the same code of conduct and disciplinary rules.

England and Wales can rightly boast one of the most vibrant and respected in-house sectors. It is also the fastest expanding sector of the profession. Today, they make up roughly a quarter of the profession and in the future it will become a career choice for an increasing number of our members.

So often a voice of reason, it’s worth recalling the words of one Mr Denning in the Court of Appeal. He described the position of salaried legal advisors as "regarded by law as in every respect in the same position as those who practice on their own account. The only difference is that they act for one client only and not for several clients".

He continued: "I have always proceeded on the basis that the communications between the legal advisers and their employer (who is their client) are the subject of legal professional privilege."

That was in 1972. I don’t know a single solicitor who feels any differently in 2008.