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In many jurisdictions, privilege can be waived only with a client’s express consent. However, exceptions exist. For example, it is common for lawyers to be under a duty to disclose client confidential information without client consent where there are suspicions of money laundering activity.
The concept of inadvertent loss of privilege also exists in most jurisdictions, meaning parties must be careful not to lose confidentiality in documents or to display conduct from which a waiver of privilege might be implied. In India, by contrast, the general rule is that waiver must be deliberate; accidental disclosure of privileged communications may not be taken as intended waiver.
Global businesses must remain alive to the risks posed by the fact that advice of in-house counsel is treated differently across jurisdictions. Japan, Thailand and the UK treat in-house counsel identically to external lawyers when it comes to legal professional privilege, whereas many European jurisdictions do not recognise in-house lawyer privilege at all, meaning advice from lawyers within an organisation there may not be protected.
However, here too there are signs of change. Switzerland, France, Italy and South Africa have all engaged in recent debate as to whether privilege should be extended to in-house lawyers.
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