Legal Professional Privilege
Global Guide, 4th Edition, 2017

Welcome to The 2017 Edition

Welcome to the 2017 edition of DLA Piper's Legal Professional Privilege Global Guide, the ultimate guide to legal professional privilege around the world!

With the help of DLA Piper's unparalleled global network, we continue to clarify the scope and key limitations of legal professional privilege in various jurisdictions. But this Guide is not just a legal comparison but rather a practical toolkit for companies with cross-border operations.

Here is why we think this matters to you:

1. You are a Compliance Director for your listed company located in Country A getting to know that some problematic conduct has occurred in your subsidiary in Country B.

Scenario A: You are about to send an e-mail to your in-house colleague in Country B with a legal assessment of the conduct in question. Before you push the button, you think about the scope of legal privilege. You will ask yourself: "Does Country B protect in-house lawyer communications? Or can my mail be seized by inspectors or discovered in court?" Our guide provides a first answer.

Scenario B: You plan to forward the legal advice received from DLA Piper to your colleague in Country B. Now you ask yourself the following question: "What is the scope of legal privilege in Country B?" Indeed, virtually all jurisdictions recognize the concept of privilege, but there is a big difference in terms of when privilege (e.g. only after start of an investigation) or how broad it is. Again, our guide gives you a first answer.

2. You are a freshly appointed Compliance Director for your internationally active company, and no clouds darken your horizon - yet. Before engaging a new communications policy you want to find out about the underlying privilege issues. Here our Guide provides initial guidance in your strategic legal communications and planning, and in shaping your strategy for sourcing and storing legal advice.

But remember, our Legal Professional Privilege Global Guide does not constitute legal advice. We need to go beyond our standard disclaimer here. The "doctrine of legal professional privilege" is not universal but rather embedded in the deepest roots of each particular jurisdiction and may mean different things to different people.

So although this Guide is a first-aid self-help-kit for those interested in the subject and provides practical indications as to the varieties of legal professional privilege incarnations across the world; whenever legal professional privilege matters, please contact the contributors of the individual chapters for comprehensive guidance and advice on your particular case.

Dr. Bertold Bar-Bouyssiere
Partner
Brussels, February 2017

 

 

 

The Concept

The principles of legal professional privilege revolve around the communications between a legal adviser and his client.

In a corporate world, this will often involve an external legal adviser acting for a corporate entity. Here the link between the external legal adviser and the corporate client is often the general counsel and his team. The in-house legal team acts as a vital link in the chain of communication between companies and external advisers, a link which is justly valued by those it serves to connect and unjustly undervalued by, for example, the Court of Justice of the EU, as the unfortunate AkzoNobel (Case C-550/07) ruling confirmed.

More than the term "in-house lawyer", the term "lawyer in residence" or "resident lawyer" reflects the reality that company-retained legal counsel is comprised of lawyers serving one single client. Often an external legal adviser's value is seen in their expertise in a particular specialism, whereas an in-house lawyer's value is measured through his/her intimate knowledge of the client and the client's organisation. In reality therefore, the company's in-house lawyer is indeed the most important link in that chain of communication.

Quite often it is important to go back to basics. The United States Supreme Court once described legal professional privilege as "the oldest of the privileges for confidential information known to the common law" (Upjohn Co. v. United States). Over time, this form of privilege developed into two sub-categories: "legal advice privilege" and "litigation privilege". While the rationale underlying legal advice privilege is the importance of allowing absolute candour, litigation privilege is based on the concept of adversarial litigation. Legal professional privilege thus protects the confidentiality of communications between a lawyer and his client and so has become an exception to the general principle of public policy for full disclosure. It is, in substance, a fundamental human right, and a corollary of the right of access to justice, rather than just a rule of evidence. A person cannot effectively obtain legal advice unless he or she can reveal all to a legal adviser without fear of subsequent disclosure, be it in court or at a police station.

This form of legal professional privilege is the case in the traditional view of English and Welsh common law. Beyond England and Wales, however, the exact format varies. The least variance is seen in other common law jurisdictions where, although the terminology is different ("attorney-client privilege" in the US; "solicitor-client privilege" in Canada), the structure is at least similar. Outside such jurisdictions, the issue becomes blurred further. In Europe, the European Court of Human Rights, which recognises that legal professional privilege is protected by Articles 6 and 8 of the Human Rights Convention, provides only for a roughly similar protection for lawyer-client communications. Additionally, the Court of Justice of the EU accepts legal professional privilege on the ground that it is treated as fundamental in the law of every EU Member State.

Notwithstanding the universality of the concept of legal professional privilege, its scope and limitation vary between jurisdictions.

  • Who is a client?
  • Who is a lawyer?
  • What type of material is covered?
  • What constitutes legal advice?
  • Who can invoke legal professional privilege and when?
  • How is legal professional privilege waived or otherwise lost?
  • What about adverse interferences?

There is no universal answer to these questions and each particular jurisdiction should be considered separately.

About DLA Piper

DLA Piper is a global law firm with lawyers located throughout Europe, the Americas, Asia-Pacific the Middle East and Africa, positioning us to help companies with their legal needs anywhere in the world.

Our clients range from multinational, Global 1000 and Fortune 500 enterprises to emerging companies developing industry-leading technologies. They include more than half of the Fortune 250 and nearly half of the FTSE 350 or their subsidiaries. As we build our global presence, we remain committed to maintaining regional practices around the world where we do great work for long-standing clients. This gives us an understanding of middle market clients and insight into the issues facing both large clients and those seeking to establish a foothold.

For further information visit www.dlapiper.com

Key Contacts

Dr. Bertold Bar-Bouyssiere
Dr. Bertold Bar-Bouyssiere
Partner
T +32 2 500 1535
Michael Marelus
Michael Marelus
Associate
T +1 212.335.4542

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