St. Mary's Law Journal


Sue Bentch


Professional ethics for corporate counsel in the European Union (EU) differs from the standards required in the United States. Consequently, conflicts may arise when US corporations deal with EU countries. For instance, if an issue regarding confidentiality emerges, the company bears the burden to prove to the European Commission that a particular document is protected from disclosure. Under EU’s Regulation 17, the European Commissioner has broad powers to investigate and adjudicate suspected violations of EU competition law. The Commissioner is the equivalent of an investigator, prosecutor, judge, and jury, all rolled into one. If a communication from a company was made to in-house lawyers or non-EU lawyers, the Commissioner’s investigation and sanctions move at lighting speed and the company will be ordered to disclose the confidential documents. Nonetheless, the issues of confidentiality, legal professional privilege, and corporate counsel in the EU are evolving. Furthermore, a new EU competition regulation is expected to replace Regulation 17 and make companies increasingly responsible for their own investigation. Two organizations, European Company Lawyers Association (ECLA) and Council of the Bars and Law Societies of Europe (CCBE), have made confidentiality a cornerstone of their efforts. Thanks to ethical training and regulation provided by the CCBE and ECLA, legal professional privilege has been extended domestically to qualified in-house counsel. Because of the efforts of CCBE, ECLA, and others, change in Europe is coming. Therefore, anyone interested in doing business with a country in the EU should be paying attention to the changing developments of the law.


St. Mary's University School of Law