Legal Professional Privilege

A review of law and practice relating to legal professional privilege in 23 jurisdictions across Europe, the Americas and Asia-Pacific is available here on Linklaters’ Client Knowledge Portal*.

Negotiating a path through competing and frequently contradictory laws on privilege can throw up very unexpected results: advice that is privileged in one country may not be protected in others.

Legal professional privilege, or at least a duty to keep legal advice confidential, exists in most jurisdictions but its scope and application vary widely. In many jurisdictions there is no duty of disclosure in court proceedings and protecting confidentiality is not so great an issue. In others, privilege will apply to a large number of communications passing between a lawyer and his or her client and act to prevent their disclosure in litigation. In yet others, however, privilege is barely recognised at all.

In-house counsel advising companies operating in multiple jurisdictions are particularly exposed. Some countries, such as France, do not recognise the concept of in-house lawyer privilege despite moves to extend it to them. Others, like Australia, accord the same status to in-house lawyers as to external counsel, provided they possess the necessary degree of independence.

As both litigation and regulatory investigations become increasingly international, these differences (and their potential consequences) present a significant risk for companies and their legal advisers. Increasingly, regulators are indicating impatience with privilege, which makes it all the more important to understand where the true boundaries lie. The differences between jurisdictions can be stark. For example, in China, regulatory and investigative bodies do not apply the doctrine of privilege at all, whereas in South Africa such bodies are generally subject to the standard disclosure requirements.

Linklaters’ previous review of legal professional privilege was published in September 2013. This revised and fully updated version includes chapters on additional jurisdictions and continues to provide a quick reference tool to practice across the globe. For 23 jurisdictions, including the EU, it provides at-a-glance answers to these basic questions

  • Is the concept of disclosure of documents recognised?
  • Is a right to privilege recognised? If so, what types of document may be privileged?
  • Is the concept of in-house lawyer privilege recognised? Are there any limiting factors?
  • What law determines whether privilege applies to a document or communication?
  • Is the doctrine of privilege respected and applied by regulatory and other investigative bodies?

The review is intended to highlight issues rather than to provide comprehensive advice. If you have any particular questions about privilege, please do not hesitate to contact the Linklaters LLP lawyers with whom you work.

*If you are not a subscriber to the Client Knowledge Portal, you will need to subscribe to access the full report. The Client Knowledge Portal is a one-stop-shop delivering customised knowhow and value-add services to our clients. Please email KnowledgePortalSupport@linklaters.com to gain access.