The English courts distinguished the two separate types of LPP. Legal advice is the first type of LPP, which protects the communication between lawyers and their clients. Second, litigation privilege that protects the information and documents created with the intention of litigation (Hostettler 2009, pp. 82). Furthermore, litigation privilege covers documents and advice given to by third parties.
Historically, litigation privilege is the first form of LPP that the English courts recognized. The first time ECJ dealt with LPP was in a case involving AM & S v Commission. The ability of the commission to have access to communication between an undertaking, which is suspected of anti-competitive behavior and its lawyers, was the main concern of the case (Jones & Newburn 2007, pp. 102). The case maintained that written communications exchanged between an independent lawyer and his customer, made for the purpose and interest of the client’s rights of defense had the privilege.
A directive in 1991 significantly influenced the LPP of the community because it placed a wide-range of limits on the protection accorded to the lawyers and their clients. Consequently, controversy arose during the Directive’s drafting process and its last amendments. In Order bar, the ECJ reviewed the legality of Article 2 a (5) of the 1991 Directive. Based on the review of the directive’s legality, some group of legal professionals has the obligation to inform competent authorities of any act likely to indicate attempts of money laundering. In addition, the directive compels legal professional to avail to the relevant authorities all required information upon their request. Article 6(3) of the 1991 directive also allows the Member States to make an exception to these disclosure obligations. More than a few advocate bars challenged the disclosure obligation brought before the Belgian Constitutional Court. The grounds for challenging the disclosure obligation were that it impeded the principles of professional secrecy and the independence of lawyers, which are part of the most important right to a fair and respect of rights of defense. . .