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The impact of Brexit on legal professional privilege in cross-border communications

Published: 24th February 2021
Area: Litigation & Dispute Resolution

Following the end of the UK-EU transition period, it is now clear that there is no agreement on preferential market access for legal services. This has significant implications for the UK legal services sector. UK solicitors are no longer recognised as solicitors qualified to practice within the EU.

So how does this affect legal professional privilege in cross-border communications with lawyers? As UK departs from the EU, both lawyers and businesses need to reassess their ability to assert legal professional privilege before national courts as well as the European Commission.

What does legal professional privilege mean?

Legal professional privilege entitles a party to withhold evidence (written or oral) from a third party or the court, such as legal advice privilege (confidential communication between lawyers and their clients for the purpose of seeking or giving legal advice), or litigation privilege (confidential communication between lawyers and their clients/third party for the dominant purpose of being used in connection with actual or pending litigation).

Legal professional privilege in England and Wales

As far as English law is concerned, communication with foreign lawyers is not excluded from legal professional privilege.

The English court has recently clarified that, as far as court proceedings in England & Wales are concerned, legal professional privilege will continue to extend to communications between a client and its foreign lawyer, irrespective of the location where the lawyer is practising (PJSC Tatneft v Bogolyubov & Ors). Additionally, the English court will also not investigate the foreign regulatory requirements in determining whether legal professional privilege applies.

The decision offers a welcome relief to UK organisations that either employ internal legal teams of internationally qualified lawyers or solicit advice from foreign lawyers.

Legal professional privilege in the EU 

For businesses operating in the EU, or embroiled in legal proceedings in the EU, the position is different. In the absence of any agreement between UK and the EU, all UK lawyers (who have not re-qualified as EU lawyers) are now treated as third-country lawyers in the EU.

What this means is:

In the context of actual or potential EU and EEA competition proceedings before the EC, legal professional privilege will no longer extend to communications with UK qualified lawyers (unless they also requalify in the EU). This is because EU law dictates that LPP does not extend to third-country lawyers (Akzo Nobel C-550/07).

Risk of disclosure could potentially arise in scenarios where:

  • the company receiving legal advice is based in the EU/EEA;
  • one of the recipients of legal advice is physically based in the EU/EEA; or
  • the parent company of the recipient company is based in the EU/EEA and has access to its UK subsidiary’s documents.

Going forward, clients (and lawyers) will need to be mindful of how legal advice is procured (and given), particularly when it touches upon competition law issues that may eventually come before the EC.

EU member states will also no longer be bound by the EU Lawyers’ Services Directive. Instead, national rules on legal professional privilege will apply in proceedings before national courts, national investigations and private party litigation.

Legal professional privilege rules vary greatly across the EU, so clients (and lawyers) will need to carefully review the national laws in their relevant jurisdictions to assess whether, and if so how, legal professional privilege applies.

Practical tips to protect legal professional privilege in the EU

 

  1. Specifically reference recognised EU lawyers on all communications.
  2. UK lawyers should liaise with EU lawyers so that any issued guidance or formal advice is signed off by the EU counterpart.
  3. Where possible, cross-jurisdictional teams should be formed where EU Lawyers formally lead representations and this should be recorded in communications.
  4. Any material produced by UK lawyers generated exclusively for the purpose of obtaining advice from an EU lawyer will remain privileged.
We’re here to help

With our Multilaw membership, we have direct access to over 10,000 lawyers across 150 commercial centres, allowing us to work alongside local partners, offer cross-jurisdictional services and support our clients with on-the-ground representation across the EU (and other continents).

If you have any questions on how the change in legal professional privilege rules could affect your business, or would like any additional guidance or support, please get in touch with Sneha Nainwal in our commercial disputes team.

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