Articles Posted in Demands of the Legal System

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.

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With all the references to the attorney-client privilege in recent news, I had been meaning to post an article on this important legal protection.

Today’s Wall Street Journal contains an op-ed by former U.S. Attorney General and former federal judge Michael B. Mukasey that surpasses — in practical wisdom and conceptual clarity — any explanation that I’ve received in law school, read in court opinions, or encountered in day-to-day law practice.

The online version requires a subscription — and if one lacks that it’s worth tracking down a hard copy of the newspaper to read this piece.