LEGAL PROFESSIONAL PRIVILEGE – AN OVERVIEW OF CROSS-BORDER ISSUES
As the business world grows increasingly global, international communication has become the day-to-day norm for most. Emails and other electronic communications are being sent to a multitude of recipients, sometimes without even knowing where in the world the recipients are located or in which countries the servers that will hold these media lie. This poses particular challenges for legal advisers who wish to protect their clients’ legal professional privilege in their communications with them.
This article gives an overview of some potential pitfalls arising from the varied privilege regimes across the world, provides a summary of the differences in the willingness of courts to apply the privilege laws of other countries, and offers some practical suggestions to mitigate risk in this area.
Legal professional privilege is relied upon by lawyers and their clients, including their in-house clients, to potentially protect from production a wide range of documents, including advice, correspondence regarding actual or threatened litigation, notes and other work product. There is, however, little agreement globally as to what privilege is. Does it arise as a matter of contract, is it a propriety right, or is it a constitutional right or creation of public policy? Different jurisprudential approaches to these questions, together with stark differences in the extent to which parties are ever obliged to produce documents in litigation, have shaped each country’s regime for protecting lawyer communications.
Jul-Sep 2021 issue
McGuireWoods London LLP