Confiding fully in your lawyer without having what you disclose used against you is a cornerstone of the legal profession. Clients and legal professionals alike can take it for granted that what they discuss freely won’t later be disclosed to authorities.

In legal lingo this is the principle of legal professional privilege. Ring a bell? If you’ve ever received an email from a law firm the small print at the end, which often goes unread, concerns precisely this.

Even seasoned users of external legal services rarely pay a second thought to legal privilege. At least not before it’s too late.

So it’s worth taking a slightly deeper look at the principle to ensure the confidences you share with your legal right hand are protected to the extent desired.

Cartel cases are an area of law in which the boundaries and agility of the principle have been tested all the way up to Europe’s highest court, which delivered a ruling in September 2010.

While the courts have systematically recognized the main principle, some issues continue to attract further debate.

  • What type of written documents (for example, meeting memoranda with a competitor – the proverbial ‘smoking gun’), can be protected from disclosure?
  • Are in-house counsel within the scope of the principle? This question is of high significance not only to in-house counsels themselves, but to the companies that employ them.

EU-level laws can differ from those at the member state level. For example, in-house counsel communications are not legally privileged under EU law, but are considered privileged by a growing number of member states.

While the member state-level development is to be applauded, in substance it creates a difficult balance for companies operating in several jurisdictions.

Throw into the mix that the U.S. rules on privilege are markedly different and you can start to see how multinational companies face a potential minefield as far as privilege goes.

Remember the aforementioned ‘smoking gun’? If drafted by, or for, in-house counsel it may well be treated differently based on the jurisdiction in which the question of privilege arises.

The good news is that the minefield of legal privilege can be navigated successfully with appropriate planning and a solid corporate policy.

Want to know more? Join the Attorney-Client Privilege session When is your lawyer not really your lawyer, on Tuesday April 28.


Discuss the issue further
Contact Ami Paanajarvi from Roschier.

Issues like this and many more are discussed at Amcham Legal Committee meetings.

For more information on times and venues, please contact Matthew Wood at Amcham.