The association is pushing back against a bid to force in-house counsel to disclose documents
The Association of Corporate Counsel has applied to intervene in the matter of Broadcom and VMware International v Commission, which sits before the European General Court.
The association is pushing back against the European Commission's bid to force the disclosure of documents generated by in-house counsel in the US. The ACC said that the case “could have significant implications for legal professional privilege and the protections afforded to in-house counsel.”
“ACC's intervention in this case reflects our commitment to protecting the independence and effectiveness of in-house counsel, whose legal guidance is critical to promoting compliance, ethical business practices, and risk management. The outcome of this matter could affect ACC members practicing throughout the European Union and beyond, making it imperative that the voice of the global in-house legal community is heard by the court,” said Susanna McDonald, ACC’s chief legal officer and vice president, in a statement.
The association emphasized in-house counsels’ role as employees and management’s initial point of contact in the face of legal, regulatory, compliance, and business concerns. Client confidentiality and legal professional privilege protection are central to in-house counsels’ ability to conduct internal investigations, evaluate risks, drive compliance, and share legal advice.
The ACC explained that the loss of these protections births significant issues for multinational organizations, especially when legal teams work across various jurisdictions and team up on complex compliance, regulatory, and litigation issues. It criticized the European Commission’s rejection of the recognition of privilege for in-house counsel communications in certain proceedings - especially in competition and antitrust investigations - when jurisdictions like those of European Union member states recognize legal privilege protections for in-house counsel.
“The number of EU member countries recognizing privilege for in-house counsel has more than doubled in the last 15 years, and ACC urges the Commission to consider doing the same,” said Jason L. Brown, ACC’s president and chief executive officer. “Effective compliance programs and sound corporate governance depend on lawyers being able to provide candid legal advice without fear that privileged communications will later be disclosed.”
Brown pointed out that the ACC had intervened in European cases involving legal privilege protections for in-house counsel legal advice in the past. The ACC said that its involvement in Broadcom and VMware International v Commission “seeks to highlight the practical and legal consequences of limiting privilege protections for in-house counsel, and to reinforce the importance of maintaining confidential communications between corporate legal departments and their clients.”
Eric Barbier de La Serre and Anne-Sophie Perraut of Jones Day Paris are representing the ACC. The association filed its application to intervene on Thursday August 13.
