Let’s get the European bit out of the way first not least because it is, in a sense, old news. There has been an ongoing debate for some time now about whether privilege attaches to communications between a client and an in house lawyer and I have always thought that the courts have tended to the view in Europe that no such privilege attaches on the basis that the in house lawyer is “too close” to the client for the advice to be objective, disinterested and, therefore, worthy of privilege.
Now the Court of Justice (ECJ) in Akzo Nobel Chemicals Ltd and Akcros Chemicals Ltd v European Commission has decided that view is correct. Quoting from an excellent commentary on the decision helpfully provided by Baker & McKenzie in one of their regular client alerts:
“Lack of independence – due to the economic reliance of an employee on its employer – is the spoiling factor, meaning that “an in-house lawyer is less able [than an external lawyer] to deal effectively with any conflicts between his professional obligations and the aims of his client”.
This will be disappointing for companies and their in house Counsel but it is not all that surprising. The purpose of mentioning it here is to draw the attention of lawyers involved in contentious work to the now authoritative ruling on the subject which will necessarily impinge on the advice they give their clients when it comes to disclosure, electronic or otherwise.
One George Avory, described as the Head of Legal and Business Affairs at the Royal Opera House, Covent Garden (ROH) is said to have threatened legal action against a blogging site which published pictures of the ROH on its website. [see Royal Opera House threatens to sue blogger over photo row, The Lawyer, 10th Sept 2010] but should you want to see how the ROH uses the money it is given by Government grants and the enormous cost of tickets for its performances I suggest you go to the Intermezzo website and read Without Prejudice – why all the Royal Opera House posts have disappeared where you will find the correspondence between the blogger and Mr Avory as well as some fairly critical comments about the attitude adopted by and the grammar used by Mr Avory AND the apology published by ROH’s Head of Corporate Communications, Elizabeth Bell.
Apparently the threat of legal action still remains so I am going to hide behind that old canard “sub judice” for the time being. What I will say, however, is that a blogger’s life is not always a happy one nor even an easy one!
I am supported in that last point by a serious article in Volume 21 issue 2 of the Society for Computers and Law magazine of June/July 2010. Written by Clive Freedman of 3 Verulam Chambers (a link to whose excellent round up of the law relating to e-disclosure can be found in our resources section), the article gave me pause for thought as the subtitle addressed the liability of the operator of a blog with multiple contributors where one of the posts is libellous.
I must look to my fellow contributors although I am sure they would not write anything scurrilous!
Although the judge, Stadlen J decided in favour of the blogger on the claimant’s application for summary judgment, the judge declined to strike out the claim.
Clearly, it is not all plain sailing as a blogger after all!