In-House v External Lawyers: A Level Playing Field?

Author:Mr Edward Miller, Katherine Holmes, Angela Gregson and Marjorie C. Holmes
Profession:Reed Smith

The Competition Appeal Tribunal (the "CAT") recently confirmed that an in-house lawyer should only be required to give the same form of undertaking as external counsel and solicitors, despite this being disputed by external lawyers. This welcome decision goes some way towards bridging the gap in equality between the treatment of in-house and external lawyers. The gap nevertheless remains pronounced by the different treatment of in-house lawyers and external lawyers in the context of legal professional privilege at the EU level. On 25 January 2012, in the case of Telefonica UK Limited v Office of Communications, the chairman of the CAT, Mr Justice Henderson, gave an order in relation to the ability of an in-house solicitor to give an undertaking in a confidentiality ring to ensure that confidential information exchanged for the purpose of the hearing is kept within a limited number of the parties' legal advisors. The exchange of sensitive information is high on the agenda of competition authorities around the world. Confidentiality rings are increasingly being used by companies to allow the exchange of business-sensitive information between individuals who undertake not to disseminate that information to their wider organisation or anyone else, and so prevent any risk of an impact on competition. This case highlights the increasing use of confidentiality rings. Mr Justice Henderson ordered that in establishing a confidentiality ring, an in-house solicitor of Everything Everywhere ("EE") "should give the same form of undertaking as that to be given by the parties' external counsel and solicitors". Mr Justice Henderson found that "no good reason... [had] been given for requiring a different form of undertaking from EE's in-house lawyer"; that "the in-house lawyer in question is subject to the same professional obligations as external solicitors"; and that "given the professional standing and experience of the EE in-house lawyer, it would be invidious and unreasonable to require her to give additional confidentiality undertakings that are not also required from external lawyers". The in-house lawyer in question is a solicitor admitted to practice law in England and Wales who has around 25 years of experience as a practising solicitor. In these circumstances, it was found to be invidious and unreasonable to require her to give additional assurances not required from external lawyers. However, the same in-house lawyer with 25 years of...

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