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 recently introduced in the context of administrative investigation procedures. This differing approach will be a crucial consideration for any business navigating privilege internationally.
Waiver of privilege
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.
Respected by regulators
It is essential that global companies are alert to the treatment of privilege by regulators and investigators internationally. In many countries, such bodies respect the rules of privilege as they exist in that jurisdiction but in others, the extent to which the principle extends remains unsettled. It is also a relatively busy area of development, as regulators adapt their approach and response to claims of privilege at various stages of investigations.
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.
A review of law and practice relating to legal professional privilege in 24 jurisdictions across Europe, the Americas and Asia-Pacific.
Zoom in and select a jurisdiction on the map to explore in more detail.