The European General Court has held that employed lawyers do not
have the right to represent their in-house clients before it.
Building on the controversial rejection of the application of
legal privilege to communications with in-house counsel in
the Akzo case (14 September 2010, full
report not yet published), the Court has decided that even where an
employed lawyer is a registered member of a national bar and has a
right of audience in his or her home state, the fact that the
in-house lawyer is employed by an internal client deprives the
in-house lawyer of the independence required to represent that
client before the European courts.
The first instance decision – now on appeal to the
European Court of Justice – (Order of the General Court
(Seventh Chamber) of 23 May 2011, Prezes Urzędu
Komunikacji Elektronicznej v European Commission, Case T-226) concerns Article 19 of the Statute
of the Court. This says that whilst the European institutions
themselves and Member States may be represented by an
"agent" who may be assisted by a lawyer, other parties
must be represented only by a lawyer. The lawyer must have the
right to appear before the courts of a member state.
The case in question was an appeal against a Commission decision
where the Polish appellant was not a state or European institution,
and was represented by two employed lawyers with the title
radca prawny (analogous to an English solicitor or French
former conseil juridique). Even though a radca
prawny does have a right of audience (except in certain
criminal matters) before the Polish courts, the European Court of
First Instance held that the fact that the Polish lawyers were
employed meant they could not represent their client before it.
If upheld by the European Court of Justice, the ruling will
further exemplify the outdated and destructive attitude of the
European jurisdictions to the important role of in-house
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Alastair Brett v Solicitors Regulation Authority; a recent reminder to in‐house lawyers of their dual duties to client and Court – a cautionary tale all in‐house lawyers should have across their radars.
This week we will be publishing an update each day covering a different reform contained in the (now passed) Courts Reform (Scotland) Bill. This update will cover the increase in the privative jurisdiction of the Sheriff Courts.
The final instalment of our series of updates on the (now passed) Courts Reform (Scotland) Bill has finally arrived. This update will consider the new procedures for appeals to the Inner House of the Court of Session and to the Supreme Court.
Part three of our series of e-updates on court reform addresses
the establishment of a new Sheriff Appeal Court.
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