A duty to keep legal advice confidential exists in most jurisdictions but the basis, application and scope of protection afforded by privilege varies. In the UK, privilege is generally highly respected and maintained in most court proceedings and investigations. Japan, however, has no specific doctrine of legal privilege, only a narrow scope of attorney-client privilege in the context of administrative investigation procedures. Such differing approaches will be a crucial consideration for any business navigating privilege internationally.
The boundaries of waiver of privilege can be controversial but the concept of inadvertent loss of privilege 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 many jurisdictions, privilege can be waived only with a client’s express consent. Exceptions exist, however, and it is common across the globe for lawyers to be under a duty to disclose client confidential information without client consent where there are suspicions of certain activity, such as money laundering.
The extent to which domestic privilege rules apply to regulators varies across jurisdictions. It also continues to be an area of development to which global companies should be alert. For example, the Indian government is considering reforms which would require lawyers to share details of suspicious activity with relevant authorities, while Germany’s reforms to its corporate crime legislation, including rules on the seizure of materials discovered during investigations, are yet to be finalised.
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. However, recent debate in some jurisdictions has led to change; in Switzerland privilege for in-house counsel is soon to be recognised under domestic legislation and Belgium has now enacted laws confirming that in-house counsel legal privilege can apply.