Globalization and the Evisceration of the Corporate Attorney-Client Privilege: A Re-Examination of the Privilege and a Proposal for Harmonization

Abstract

In the past several years, corporate investigations have globalized, with multiple jurisdictions around the globe cooperating to investigate suspected competition law violations, share information regarding the target companies, and pursue parallel litigation against those companies. However, privilege rules remain localized, with jurisdictions applying differing attorney-client privilege rules, primarily with regard to whether communications with in-house counsel are privileged.

While conflicts in privilege rules among jurisdictions had little effect when corporate investigations and prosecutions were conducted solely within a single jurisdiction, the new global nature of corporate investigations mandates that any corporate defense strategy must also be global in nature. Yet, due to the lack of harmonization in privilege law, corporate counsel and clients cannot be certain which privilege rules will eventually apply to any given communication.

This article argues that in order for corporate counsel to effectively advise their multinational clients and thereby assure corporate compliance and access to justice, the privilege rules must be harmonized on a multi-national scale. The article then suggests that the proper parameters of the corporate attorney-client privilege should be determined not by the in-house versus outside counsel distinction, as it is in the European Union and the majority of civil law countries, but rather by a functional analysis which accounts for the differing roles attorneys play in various settings.

Keywords: globalization, cartel, antitrust, ethics, attorney-client privilege, privilege, in-house, European Union, Professional Responsibility, interjurisdictional differences

JEL Classification: F01, F23, H73, K21, K22, K23, L40