One of the things one hears lawyers say a lot in American courts is that attorney-client privilege is considered “sacrosanct.” While the justices in the seminal US Supreme Court case did not explicitly use that word,[1] it reflects the great respect attorney-client privilege is shown in the legal profession in common-law countries.
When available, privilege is an effective shield during a part of civil procedure called “discovery” or “disclosure” used in English-based common-law legal systems that originated in the United Kingdom and Ireland, which form the basis for legal systems in the United States, Canada, Australia, New Zealand, Singapore, and many other countries: 40 in total.[2] Privilege is typically the only objection to a question during a deposition that exempts a witness from having to answer, and oftentimes the only basis for withholding or redacting documents from opposing counsel and the court. It is a wall that protects the communications between clients and their lawyers, “to encourage clients to make full disclosure to their attorneys”[3] because “sound legal advice [and] advocacy” depend on it.[4]
However, attorney-client privilege is also something that many colleagues in continental Europe and other French-based civil-law systems often do not consider (unless they are criminal-defense lawyers). For one, where there is no (civil) discovery procedure, there is no need for privilege. Moreover, European courts have treated privilege as not exactly sacrosanct, since the European Court of Justice allowed the European Commission in 2010 to pierce privilege with respect to communications between an in-house general counsel and his client, finding a lack of independence where the client is also the employer.[5] Indeed, whether in-house counsel advice enjoys any privilege is a debate in many civil-law countries. But even outside-counsel privilege has seen better days when, for example, in 2018, the German Verfassungsgericht—the highest court in Germany that rules on constitutional matters—allowed government investigators to raid the premises of a car manufacturer’s outside counsel in the context of a diesel-emissions investigation.[6]
So why should you care about privilege as an in-house lawyer in a civil-law country? You should care if your company also has offices in common-law countries. You should care because it matters whether or how the civil-law country you are in recognizes privilege. It matters how any of the common-law countries your client operates in view legal advice given by civil-law country in-house counsel. It matters whenever your client is involved in a dispute in a common-law country and your opponent is trying to get access to, or “discover,” communications you had with your client. It matters because discovery does not stop at borders; it stops at “access” and “control.”[7] For example, recipients of a third-party subpoena in the United States are “required to produce materials in [their] control whether or not the materials are located within the district or within the territory within which the subpoena can be served.”[8]
This means that if your client’s offices in one (common-law) country have or can get access to information in offices in another (civil-law) country in the ordinary course of business, then the client may have to turn it over in discovery in the common-law country as well, even though the information is not located there and appears to be outside the jurisdiction at first glance.[9] Hopes that international treaties such as the Hague Evidence Convention would protect against discovery in civil-law countries have been dampened by opinions like Aérospatiale, a 1987 case in which the US Supreme Court found that the convention does not prescribe exclusive or mandatory procedures and was only intended to establish optional procedures for obtaining evidence abroad, and therefore not does not deprive the local courts of their right to conduct proceedings pursuant to their own rules.[10] Attempts to change that view have not seen successful so far. For example, France—the home of the appellant Société Nationale Industrielle Aérospatiale in the Aérospatiale case—subsequently withdrew certain objections to its ratification of the convention with respect to pretrial discovery in the hopes of gaining international comity from US courts in the future, but to no avail.
The most effective defense against discovery is often privilege. And here, some may be surprised to find a whole different view by courts in common-law countries about privilege in civil-law countries. For example, some US courts have expressly recognized attorney-client privilege by French in-house counsel, known as conseil juridique or juristes d’enterprises (as opposed to avocates, meaning outside counsel), even though France itself does not recognize such privilege and French in-house counsel are not members of the same bar or allowed to go to court. Rather, “the requirement [was viewed as] a functional one of whether the individual is competent to render legal advice and is permitted by law to do so.”[11] It helped that in-house and outside counsel go through the same schooling and exams in France and whether to practice in a law firm or in a corporation is essentially just a career choice, not one of different competence or qualification. Other US courts have rejected this analysis, though, insisting on bar membership being a determinative factor.[12]
There is a similar distinction between Rechtsanwälte (outside counsel) and Syndikusanwälte (in-house counsel) in Germany, and US federal courts have come out in favor of privilege for German in-house counsel as well.[13] US courts have also lent privilege to in-house counsel from Sweden, Korea, and Japan, to name just few.[14]
Privilege has even been extended to patent lawyers, as long as they advise within their professional qualifications, for example in Germany (Patentanwälte) and Japan (benrishi), despite those lawyers going through different schooling and only being admitted to practice before the respective country’s patent and trademark office, and before courts only in certain, specialized roles limited to their qualification or in certain, specialized patent courts, respectively.[15] Comparatively, US patent agents, who are only permitted to practice before the US Patent and Trademark Office (USPTO), enjoy only very limited privilege, which is otherwise reserved for patent attorneys, who graduated from law school and are members of a state bar.[16] The difference is that German and Japanese patent lawyers are required to undertake vigorous education in the field, including multiyear apprenticeships complemented with formal schooling and extensive exams, while no specific legal training is required for a patent agent practicing before the USPTO, which is open to any engineer successfully passing a single test (the “patent bar”). European patent attorneys, who are permitted to practice before the European Patent Office, similarly do not enjoy privilege under US law, despite having to go through more extensive schooling and tests than their US patent agent counterparts, as their level of education is still not comparable to a law degree.[17]
For other countries, it has gone the other way, and privilege has not been recognized in the United States for in-house counsel, like for Russian in-house counsel, or for unlicensed Dutch in-house lawyers (which they typically are).[18] However, that can happen to common- law countries as well, like privilege not being recognized for in-house counsel in India, which, as a former member of the Commonwealth of Great Britain, is a common law-country.[19] But even if your country is not on either list (and the ones here are only exemplary, not comprehensive), chances are privilege may apply, but it just may not have been addressed in a published opinion yet.
Once you have accepted that common-law attorney-client privilege is relevant to you, it makes sense to familiarize yourself with the concept. The general rule is easy enough, but its application is not always intuitive.
First of all, attorney-client privilege is not uniformly defined in all common-law jurisdictions in the world, indeed not even necessarily within one country, such as in the United States. That is why the US Federal Rules of Evidence simply define it as “the protection that applicable law provides for confidential attorney-client communications.”[20]
Generally speaking, attorney-client privilege will require the following four elements:
- a communication
- between an attorney and a client
- made in confidence
- for the purpose of seeking, obtaining, or providing legal advice[21]
Also protected is what is commonly referred to as “attorney work product,” which are materials prepared by the lawyer on behalf of the client, even if not communicated to the client, typically in preparation for litigation.[22]
This may sound simple enough, but clients—and also civil-law country lawyers—who are not used to the concept will have questions, sometimes derived from a form-over-substance thinking. A typical question I have heard many times is: “Can I simply copy a lawyer on every email or have a lawyer in the meeting to convey privilege on its contents?” The answer is, of course, no, as it violates the fourth element above: the requirement that the communication concerns the rendering or procurement of legal advice. It would be formalistic and too simple a way to swipe everything under the privilege rug. However, if no lawyer is involved, there can be no privilege to begin with, even if the discussed matter is a legal one, so better to bring counsel to your meeting if you plan to discuss legal issues.
Another typical problem is the risk of privilege waiver by oversharing advice, which can very easily happen with email forwarding. Privilege can be lost if the confidence element is no longer satisfied. Indeed, if the lawyer’s privileged communication is shared with too many people—even within the client organization—including those who don’t have a “need to know,” the privilege protection may be gone.
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Given the global nature of how many organizations work today, it may be wise to consider whether a discussion with a client may be privileged and how to protect it from loss of privilege, no matter where you are in the world. Another worthwhile exercise may be familiarizing yourself with the rules surrounding attorney-client privilege in common-law countries, even if you are an in-house counsel in a civil-law country, because we should all feel privileged, wherever and whenever possible. Your client will thank you.
1. See Upjohn v. United States, 449 U.S. 383 (1981).
2. See Common Law Countries 2023, World Population Review, accessed March 2023, available at worldpopulationreview.com/country-rankings/common-law-countries.
3.Fisher v. United States, 425 U.S. 391, 403 (1975).
4. See Upjohn, 449 at 389.
5. Akzo Nobel Chemicals Ltd. and Akcros Chemicals Ltd. v. European Commission, No. C-550/07 P (E.C.J. 2010).
6. See In re Jones Day, 2 BvR 1287/17 (BVerfG 2018).
7. See, for example, Fed. R. Civ. Proc. 26-37 (discovery in US courts); 45 (subpoenas).
8. Fed. R. Civ. Proc. 45(a)(2) advisory committee’s note (1991 amendment); see also, for example, Camden Iron & Metal, Inc. v. Marubeni America Corp., 138 F.R.D. 438 (D.N.J. 1991) (“control” construed broadly to include all documents that can be accessed in the ordinary course of business).
9. See, for example, Choice-Intersil Microsystems., Inc. v. Agere Systems, Inc., 224 F.R.D. 471 (N.D. Cal. 2004) (third-party US subsidiary ordered to produce documents located in Germany at parent company).
10. Société Nationale Industrielle Aérospatiale v. US District Court, 482 US 522 (1987).
11. Renfield Corp. v E. Remy Martin & Co. SA, 98 F.R.D. 442, 444 (D. Del. 1982).
12. Louis Vuitton Malletier v. Dooney & Bourke, Inc., No. 04 Civ. 5316, 2006 WL 3476735 (S.D.N.Y. Nov. 30, 2006).
13. Teradata Corp. v. SAP SE, No. 18-cv-03670-WHO (EDL), 2019 BL 521368 (N.D. Cal. Sept. 09, 2019) (finding privilege under US law in a US proceeding for advice and work product by German in-house counsel even though German law does not recognize such privilege).
14. Astra Aktiebolag v. Andrx Pharm., Inc., 208 F.R.D. 92, 64 U.S.P.Q.2d 1331 (S.D.N.Y. 2002) (privilege applied to plaintiff’s Swedish and Korean in-house lawyers).
15. See McCook Metals LLC v. Alcoa Inc., 192 F.R.D. 242 (N.D. Ill. 2000) (“[A]ttorney-client privilege protects all communications between a German patent attorney and his client which occur in the rendition of legal services for the client.”); Eisai Ltd. v. Dr. Reddy’s Labs., Inc., 406 F. Supp. 2d 341, 77 U.S.P.Q.2d 1854 (S.D.N.Y. 2005) (attorney-client privilege applies to Japanese benrishi); see also VLT Corp. v. Unitrode Corp., 194 F.R.D. 8 (D. Mass. 2000) (same).
16. See In re Queen’s University at Kingston, 820 F.3d 1287 (Fed. Cir. 2016).
17. See Bristol-Myers Squibb Co. v. Rhone-Poulenc Rorer, Inc., 188 F.R.D. 189 (S.D.N.Y. 1999) (neither French patent agents nor European patent attorneys are entitled to privilege).
18. Veleron Holding, B.V. v. BNP Paribas S.A., No. 12-CV-5966 (CM) (RLE), 2014 BL 233660, 2014 US Dist. Lexis 117509, 2014 WL 4184806 (S.D.N.Y. Aug. 22, 2014) (no privilege extended to Russian in-house lawyer and to unlicensed Dutch in-house lawyer); Anwar v. Fairfield Greenwich Ltd., 306 F.R.D. 117 (S.D.N.Y. 2013) (no privilege extended to unlicensed Dutch in-house lawyer); see also Malletier, 2006 WL 3476735 (S.D.N.Y. 2006) (same).
19. Reckitt Benckiser Pharm., Inc. v. Dr. Reddy’s Labs., SA, No. 14-1451-RGA, 2016 WL 11694169 (D. Del. Nov. 4, 2016).
20. Fed. R. Evid. 502(g)(1).
21. See, for example, John Henry Wigmore, Evidence in Trials at Common Law, Volume 8, Section 2292, revised by John McNaughton, Boston, MA: Little, Brown & Company, 1961 (supplemented 1991).
22. See, for example, Hickman v. Taylor, 329 U.S. 495 (1947); Fed. R. Civ. Proc. 26(b)(3).