As law departments spread offices around the globe, the patchwork of attorney-client privilege worsens management concerns [metapost attorney-client privilege II 13]
Office locations of in-house lawyers spring up alongside business units and executives. As the latter go global, so will their counselors. One management challenge arises from those foreign locations that this blog has discussed: the absence of attorney-client privilege (See my post of Feb. 16, 2008: attorney-client privilege with 18 references.). If lawyers protected by the privilege unthinkingly write or send something outside the geographic scope of its shield, the company could be harmed.
An article in New England IN-HOUSE, Jan. 2012 at 11, extends the analysis to some countries not previously covered here. The article says that “the majority of EU countries – including France, Austria, Finland, Poland and Germany – appear to have no privilege for communications with in-house counsel.” It adds that “Brazil is reported to recognize a strong form of attorney-client privilege … while in Russia there seems to be no privilege for in-house counsel.” Commentators are unsure about the privilege in India and “there appears to be no attorney-client privilege in China.” The language betrays unknowns and uncertainties, but that is part of the problem with the privilege.
Since my first metapost on the privilege, another baker’s dozen have appeared (See my post of Feb. 23, 2008: steps to protect attorney-client privilege for in-house litigators; Sept. 9, 2008: an intractable tension between giving business and legal advice; Feb. 13, 2009: technology may put privilege at risk; May 10, 2009: audits in a country by a law department seeking legal problems; Feb. 9, 2010 #1: possible change in France; March 9, 2010 #4: use outside counsel for internal investigations; March 22, 2010: argument to separate claims work from legal work; Dec. 16, 2010: e-mail practices and attorney-client privilege; June 17, 2010: equivocal comments about in-house lawyers in India and the privilege; Jan. 12, 2011: Gucci’s loss of privilege since GC was not admitted to practice law; April 25, 2011 #1: explanation of Akzo Nobel decision; Dec. 22, 2011 #4: litigation funding and loss of privilege; and Dec. 31, 2011: dual roles as GC and head of compliance raise privilege tensions.).