The Law Society defends legal professional privilege for in-house lawyers
The Law Society’s recent move to intervene in the case of Broadcom Inc and VMWare International Unlimited Co. v the European Commission defends legal professional privilege (LPP) for in-house lawyers. The European Commission is attempting to compel disclosure of legal advice created by US-based in-house counsel. This case is a reminder of the information-gathering powers extended to the European Commission under EU competition law, the interplay with the application of LPP in specific jurisdictions and the sanctity of privilege.
Broadcom v EC and the advancement of LPP
The Commission is investigating Broadcom’s acquisition of VMware in 2023 for potentially anti-competitive behaviour and abuse of its dominant position and sent a request for information (RFI) in February 2026. Broadcom applied to suspend the RFI, arguing that communications with in-house counsel should benefit from LPP. The General Court dismissed Broadcom’s application and the matter is now the subject of an appeal to the ECJ.
Law Society intervention
The Law Society, amongst other bodies including the Association of Corporate Counsel, have intervened in the appeal over concerns of the “significant implications” for the protection of LPP. The Law Society has advocated for the application of LPP to communications between any legal advisors, including in-house counsel, and including in competition and antitrust proceedings.
Whilst LPP applies uniformly across EU jurisdictions, it is generally limited to external legal advisors and excludes in-house counsel and lawyers qualified outside the EEA/EU. There has been an increase in individual member state recognition of LPP for in-house counsel in the last decade, and this intervention by the Law Society serves to support that movement.
Conclusion
The outcome of the appeal is eagerly awaited by the legal community. The case shines an important spotlight on the differing treatment of LLP for in-house lawyers across the EU and will particularly be noted by those who are advising their businesses across different territories.
Confidentiality is essential in an in-house setting. In-house counsel are often the first to be consulted when there are any regulatory discussions or concerns and without protecting this line of communication, it may in fact encourage a lack of transparency, damaging corporate compliance and ethics. In-house lawyers are also compelled to maintain strict professional independence under the SRA Principles and that independent advice must be protected.
The Law Society’s intervention shows that it is seeking to defend these important principles for in-house counsel, with the following themes in mind:
“Under the laws of England and Wales, legal professional privilege extends to qualifying advice given by solicitors in private practice as well as in-house solicitors. Maintaining the principle of legal professional privilege is important for the protection of the rule of law. People can only communicate fully and honestly with their lawyers if they know that their communications are protected.”
Brett Dixon, Vice President of the Law Society
If you would like to discuss anything in this article further, please contact:
Emma Haymes
Senior Associate – Dispute Resolution
T: +44 (0) 161 393 9028 M: +44 (0) 7856 312 289
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The Law Society defends legal professional privilege for in-house lawyers
The Law Society’s recent move to intervene in the case of Broadcom Inc and VMWare International Unlimited Co. v the European Commission defends legal professional privilege (LPP) for in-house lawyers.
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