In-house lawyers for corporations with headquarters, divisions, facilities, or offices in the United States and a European Union country often exchange privileged information. For example, an in-house lawyer based at a corporation’s U.S. facility may provide a legal opinion based on U.S. law to her in-house counterpart in the corporation’s German facility for use in a global legal strategy . And while many lawyers assume these communications are perfectly privileged, that is not necessarily the case. Cross-border communications raise many privilege and conflict-of-privilege law questions that should trouble in-house counsel.
In his thoughtful article, The Privilege Stops at the Border Even if a Communication Keeps Going, 80 S.C. J. Int’l L. & Bus. 297 (2012), David S. Jones identifies the conflict-of-law and related issues that arise when U.S. based lawyers exchange ostensibly privileged communications with their E.U. colleagues. The article provides a timely review of the major E.U. decision in Akzo v. Nobel Chemicals Ltd. v. European Comm’n, which held that in-house attorneys have no attorney-client privilege (legal professional privilege) and that no privilege exists for attorneys who are not members of an E.U. member state bar. Mr. Jones discusses how a U.S. federal or state court should analyze the conflict-of-privilege law issues in determining whether to apply the restrictive E.U. law to U.S.-based communications.
The scope of evidentiary privileges in E.U. countries is a continually emerging issue for multi-national corporations. Mr. Jones’ article, which is available at this link, provides a thorough overview of the issues and identifies key points that lawyers and judges should consider when addressing these often first-impression issues. It is well worth the read. And for those wanting a conflict-of-privilege law analysis between federal and state and between states, check out my chapter, The Application of Conflict of Laws to Evidentiary Privileges, published in DRI’s Evidentiary Privileges for Corporate Counsel.
My thanks to the South Carolina Journal of International Law and Business and Scholar Commons for permission to link Mr. Jones’ article in this post.