A Problem of Privilege: In-House Counsel and the Attorney-Client Privilege in the United States and the European Community

attorney-client privilege that exists for independent attorneys in the EC.' The decision was based on the assumption that once attorneys are employed by a corporation they can no longer be independent.'This assumption was the basis for the decision of several countries of the EC not to permit attorneys who became employees to remain members of the bar.7 The decision by the ECJ raises the question of whether in-house counsel should be treated like other attorneys, or whether there are significant differences which require that in-house counsel be governed by different rules.This Note will answer that question by exploring the attorney-client privilege in the EC and the U.S., and whether its policies and goals can be better met when the privilege is given to in-house counsel.Section II of the Note will discuss the rules that apply to attorneys in the EC, and how and why the rules were formed.Section Im will focus on the same issues in the U.S. Section IV will discuss whether the attorney-client privilege should be available to in-house counsel.The final section will conclude that the EC should modify its rules to permit in-house counsel to exercise the attorney-client privilege in Member States where they remain members of the bar. II. THE RULES OF ATTORNEY-CLIENT PRIVILEGE IN THE ECAlthough the attorney-client privilege is not specifically granted by the laws of the EC, the ECJ held in AM & S v. Commission,' that under ' The case posing the question for the ECJ was Case 155/79, AM & S Europe Ltd.v. Commission, 1982 E.C.R. 1575.After this decision was