The Law Society aims to intervene in the EU competition case, Broadcom Inc and VMWare International Unlimited Co. v the European Commission, citing potential significant impacts on legal professional privilege outside the EU. This case questions whether the EU must recognise and accommodate LPP attaching under the law of a third country to communications between counsel (including in-house counsel) and their clients.
The Commission claims Broadcom is exploiting its market power in various software sectors by forcing customers to buy bundled offerings, setting excessive rates, restricting compatibility, and making it harder to switch providers.
The dispute asks if the Commission must acknowledge and respect legal professional privilege for communications between attorneys and clients that is recognized by a foreign nation’s laws.
According to Jonathan Goldsmith, a member of the Law Society Council, the case concerning legal professional privilege has two main aspects. Firstly, the Commission is requiring US in-house counsel to turn over documents because this privilege is not recognized in the EU.
Secondly, the court did not decide if the exclusion applies to external lawyers from a third country. The Commission usually states that communications between independent lawyers qualified to practise in third countries outside the territory of the European Union and their clients are not privileged under the case-law of the EU Courts.
The Law Society has asked the EU General Court to intervene in the Broadcom case. Brett Dixon, the vice president, stated that upholding legal professional privilege is vital for preserving the rule of law.
Individuals can only speak openly and truthfully with their attorneys when they know their exchanges are safeguarded, Dixon added. This also holds true for interactions with in-house counsel who must operate independently under guidelines from their regulatory body.
The Law Society’s intervention in the case is a significant step, as they are seeking to protect the rights of lawyers and their clients.
