1. In-house lawyers and legal privilege in competition law investigations
Paolo Palmigiano, Solicitor
Head of Competition Law, Group Legal
Lloyds Banking Group
CLA, 29 April 2013

2. Summary Introduction Key cases
Why legal privilege for in-house lawyers matters
Key challenges for in-house lawyers

3. Introduction Legal privilege and rules on discovery
In Europe, rules about discovery, privilege and in-house lawyers differ considerably
UK : litigation privilege and legal advice privilege
Italy (and civil law jurisdictions): duty of professional confidentiality and roles in-house
EU : legal privilege does not apply to in-house lawyers

4. Importance of LPP in competition law
Competition authorities (Commission and NCAs) have wide-ranging powers to request information
Formal requests for information
Dawn raids
Access to the premises
Documents (electronic or not)
Interviews

5. Key cases - 1 AM & S Europe v Commission (case C155/79)
Akzo – ECJ judgment of 14 September facts
In EU competition law investigations, in-house lawyers cannot benefit from legal professional privilege, even if they are subject to national professional rules. Their independence is compromised by the employment relationship
Reasoning
Lack of independence (notwithstanding professional rules and safeguards)
There is no unequal treatment
Different situation in various member states – no predominant trend
Modernisation (and self-assessment) has not changed the role
Right of defense and principle of legal certainty unaffected
No violation of principle of national autonomy in procedural matters

6. Key cases - 2 P.U.K.E. v Commission (6 Sept 2012)
A party is not permitted to act itself but must use the service of a third person authorised to practise before a court of a member state
Only a lawyer authorised to practise before a court of a MS may represent
Polish in-house lawyers are authorised to practise before Polish court
However, Court finds they are not independent
Statute of the Court imposes a necessary condition:
A lawyer representing a party before European Court is entitled to practise before a Member State court.
That is not however a sufficient condition:
Every lawyer entitled to practise before a court of a MS is not automatically allowed to act before the Courts of the EU.
Brussels Court of Appeal – (5 March 2013) (Dawn raid of Belgacom by Belgian NCA)

7. Why in-house legal privilege matters - 1
In-house lawyers admitted to the bar are bound by the same professional and ethical rules (but perception matters)
Regulation 1/2003 imposes increasing responsibilities on undertakings to perform self-assessment to comply with competition law
Incentives to comply with competition law have increased, given the major legislative changes and the nature of penalties (corporate and personal)

8. Why in-house legal privilege matters - 2
Increased number of in-house competition lawyers
Greater importance of their role and responsibilities
In-house resource readily available to the business ex ante (which fosters compliance)
Key role in setting up corporate compliance programs
In-house lawyers work closely with the business to ensure compliance of commercial propositions
In-house lawyers need to be able to follow-up on concerns of potential breaches without fear of discovery
Sending everything outside is not possible

9. Key challenges in-house
Definition of an in-house lawyer
Who is likely to investigate? UK? EU? Others?
In UK, who is the client in a company?
Business people do not understand privilege
Fact-finding investigations and mock exercises
v phone
When to involve an external lawyer

10. MANY THANKS