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In-house counsel's confidentiality retained

Posted by: Laurence Simons 10/04/13

The protection of legal advice given by in-house counsel has long been a contested issue in Europe, with some analysts suggesting it should only be secret if spoken in a whisper and others noting that the tendency of lawyers to couch their advice in the most abstruse language possible renders the idea of confidentiality irrelevant.

Nevertheless, the argument has rumbled on, but may have been finally laid to rest earlier this month when the Brussels Court of Appeal held that advice drafted by in-house legal counsel is to be considered as covered by legal professional privilege when facing an investigation under the Competition Act.

Its decision follows an appeal made by Belgacom, the largest telecommunications operator in Belgium, against the decision by the Competition Authority to seize documents and emails to and from its in-house counsel in a dawn raid made in 2010.

Unfortunately, the court's judgement did not touch upon the issue of why these raids always happen at dawn, rather than at the most apathetic hour of the day (a quarter past seven, if you're wondering), but it did set out some of the parameters of legal privilege in a way that could be helpful for European lawyers.

"In practical terms, the court's decision allows companies to oppose the seizure of documents drafted by their in-house counsel during dawn raids by the Competition Authority; the same applies to dawn raids carried out by the Competition Authority at the request of the European Commission or of another national competition authority," the organisation explained, rubbing balm on the wounds of sleepy policemen across the continent as they roll over in bed and place a pillow over their face in a bid to ignore the chinks of light seeping through the window.

The judgement applies not only to advice given by in-house counsel, but also to requests for legal advice, correspondence relating to this, draft opinions of internal lawyers and other preparatory documents.