Attorney/Client Privilege In Cross-Border Advocacy

Deborah R Meshulam, Katrina A Hausfeld, Laura Ford, Piotr Falarz, and Shabaz Ahmed of DLA Piper provide a comprehensive guide to the thorny issue of privilege issues in cross-border investigations. Most jurisdictions allow attorney/client communications some degree of confidentiality, but the scope and nature differ. A big differentiator: In common law countries, the U.S. and the U.K. for example, such communications are treated as a privilege which allows the client to prevent disclosure; In civil law countries the obligation to maintain confidentiality is a duty imposed on a lawyer, not a privilege that prevents disclosure. Work product may be protected in some jurisdictions, but not others. “Failing to recognize and plan for those differences at the outset of any investigation can result in potential loss of the protection of the privilege, creating issues that could have been avoided,” the authors caution.  Privilege varies substantially among EU Member States. It is narrower than common law countries, usually deriving from lawyers obligation to preserve secrecy regarding facts known to them in connection with providing legal services. Mexico has no regulations addressing the privilege outside the antitrust context. China does not expressly recognize attorney/client privilege, but affords some level of protection for communications and work product for licensed Chinese lawyers, and registered foreign lawyers working from an approved office of an international law firm. Russia does not recognize the concept of legal privilege, but information given to an advocate who is providing legal services to a client is protected by law, and the advocate cannot be questioned as a witness. There is a prohibition against using materials contained in the advocate’s file as evidence in the prosecution of the advocate’s clients.