Maison d’être

The European Company Lawyers Association’s General Assembly was hosted from 3-4 April at the Law Society. ‘Où est la bibliothèque?’ asks Mary Hallissey

In-house lawyers are a powerful yet sometimes overlooked force within the legal profession across Europe, according to French lawyer Stéphanie Fougou, president of the European Company Lawyers Association.

With an estimated 160,000 in-house lawyers working across Europe, the profession has seen significant growth over the past few decades.

However, though working in companies and industries of all sizes, in-house lawyers can find their professional recognition and legal privilege differing from one European country to another.

Founded in 1983, the European Company Lawyers Association (ECLA) – representing 24 national associations – is the voice of these professionals, working to advocate for their profession at European level.

ECLA’s only working language is English.

Liberté

In-house lawyers make up approximately 25% of the legal profession in some Western European countries, with this percentage continuing to grow.

“The further you go to the east, due to the history of the rule of law, the share of company lawyers drops significantly, to 10 or even 5%,” says ECLA’s general manager Marcus M Schmitt.

In the Netherlands, however, with its strong trading history, a dedicated association for in-house counsel has existed for over a century, helping shape the practice of business law.

In Britain and Ireland, the profession is similarly robust, with well-established systems in place for training and professional development. In 50 years,

France has seen a tenfold increase in company lawyers, from 2,000 to 20,000. It’s a cohort that grown rapidly as companies become more well-known and sophisticated in their endeavours, according to Stéphanie Fougou.

The strong Anglo-Saxon business-law environment in northern and middle Europe stands with a long history of in-house lawyers accompanying the development of business, she said.

In Southern and Eastern Europe, the recognition of in-house lawyers is weaker. In Italy and France, lawyers have to resign from bar associations when they switch from external firms to in-house positions, further blurring their status within the broader legal community.

Egalité

Perhaps the most pressing issue facing in-house lawyers in Europe is the lack of uniform recognition of legal professional privilege in favour of their clients.

This is a fundamental right that allows lawyers to provide candid legal advice to clients without the fear of disclosure and self-incrimination in legal proceedings.

However, in-house lawyers in certain countries may find themselves excluded from this protection, and not afforded the same level of privilege as their external law firm counterparts.

Progress can appear a bit slow, although a clear trend towards recognition of this privilege is notable in Europe.

The European Commission and other EU institutions are restricted from interfering with the state’s appreciation of the profession of lawyers due to the Lisbon Treaty, said Schmitt.

This alone has not been enough to ensure that all in-house lawyers can rely on privilege in every circumstance, particularly in high-stakes cases involving competition law.

“Even company lawyers for Ireland cannot rely on legal professional privilege when it comes to an investigation by the EU Commission in competition law cases,” Schmitt comments.

Fraternité

In countries where in-house lawyers lack official recognition, voluntary associations have sprung up across Europe, giving in-house lawyers a platform to connect, share best practice, and advocate for their rights.

These groups often create their own ethical codes, setting professional standards in the absence of national regulations.

These voluntary associations, though crucial in providing support and a sense of community, are still not enough to overcome the legal hurdles that many inhouse lawyers face.

ECLA has been working hard to elevate the profession at the European level. Its advocacy ranges from the recognition of in-house lawyers as a distinct profession, to securing broader access to legal professional privilege across the continent.

The ultimate goal is to bring about a unified standard of recognition and protection for in-house lawyers that spans all of Europe, ensuring that their expertise and role within the business world is formally acknowledged and properly safeguarded.

ECLA and its national counterparts are pushing for a future where in-house lawyers can work with the same level of professional respect, protection, and privilege as any other legal professional.

The association also emphasises the value of transcontinental networking. “For Irish solicitors to meet colleagues from all across Europe, to have a bit of best practice sharing – this is invaluable,” says Stephanie.

As legal issues such GDPR and ESG regulations evolve, members can learn from how their peers in different jurisdictions address these challenges. This cross-border exchange fosters a stronger, more informed legal community, Stephanie believes.

Providing members with continuous professional development ensures that solicitors are on top of legal advancements. ECLA membership offers free benefits that include webinars, courses, and roundtables, all designed to keep members’ skills sharp.

“There is a variety of things where they can actually get to know each other — whether virtually or physically,” she says.

“All in-house solicitors at the Law Society have the advantage to benefit from this ‘power of the crowd’ at European level,” Marcus Schmitt adds.

Je ne sais quoi

ECLA vice-president Mark Cockerill is based in Ireland, but sees ECLA as a gateway to a wealth of resources.

“Access to all of these [resources] is provided as part of the practising certificate,” he says.

This is especially beneficial for solicitors working in companies with international reach, as it bridges the gap between national and European legal practices.

As a transnational organisation, ECLA can also foster dialogue between common-law and civil-law systems. An understanding of both legal frameworks, through ECLA, enables in-house solicitors to navigate cross-border issues with greater expertise.

“We never take it that there’s a separation between common law and civil law. We know there is both, and we know that all our in-house lawyers need to understand both. When they negotiate, they need to have both in mind,” emphasises Stéphanie, pointing to the educational needs of this dual perspective.

“This knowledge is particularly crucial in multinational environments where both systems often overlap.”

This dual knowledge enables solicitors to “make better comparisons, adapt contracts, and understand how it’s running within each country”.

The GDPR, one of Europe’s most influential pieces of legislation, has also set a global benchmark. Cockerill refers to the ‘Brussels Effect’, where European laws often set high standards that other countries follow.

“The US adopted the California Consumer Privacy Act, which adopted GDPR-like features. India and Singapore have suggested similar legislation,” he notes.

“Understanding different countries’ viewpoints and challenges is essential, especially for in-house lawyers working for multinational companies. That’s one of the benefits of ECLA, expanding that understanding and awareness, and that network to discuss and bounce things around.”

Mary Hallissey is a journalist with the Law Society Gazette