In Part IV of this series I offer the next of my guiding observations as you consider consultations with legal counsel:
3. Be aware of which legal systems might be used to seek access to information that you want protected. Application of the attorney-client privilege — or its non-U.S. counterparts — can vary in a big way from jurisdiction to jurisdiction.
Consider this hypothetical:
- A U.S.-headquartered corporation has a subsidiary in the Netherlands — and in-house legal counsel at both places.
- During an investigation of alleged anti-competitive conduct the EU Competition Commissioner seizes e-mail messages between in-house counsel of the Dutch subsidiary and non-legal, business personnel.
- The U.S. parent and its Dutch subsidiary assert a “legal privilege” to preclude use of those e-mails against them.
Where you have employed in-house legal counsel who communicates with client company employees on a matter of legal concern, the rules governing the attorney-client privilege (or a foreign law counterpart) might well be different in — for instance — the European Union’s legal system as compared with the U.S.