Privilege: Introduction

Since our inaugural installment, cross-border trends in government investigations continue to intensify. More than ever, multinational corporations – even of the greatest reach and sophistication – must keep closely abreast of developments relating to regulators where they conduct business or otherwise have a presence, including relationships or interactions among those regulators. Often in conjunction with those developments are changes in the law or best practice relating to how business leaders communicate with their legal counsel. Some lines in this area are clear and well established; others are murky or vulnerable to debate. 

It remains that companies that are proactive in developing clear but nimble policies and procedures on privilege will be in a better position to deal with these changes and challenges. Operations should be structured so that day-to-day communication between counsel and employee is shielded by available privileges and protections (and not subsequently waived). Internal investigations must be carefully planned so that fact-finding results and corresponding legal advice are protected from undue disclosure and use. Attorneys, accountants and other expert professionals should be hired and engaged in a way that satisfies the privilege requirements of relevant jurisdictions.

The attorney–client privilege and analogous doctrines are fundamental protections that allow companies to put their best foot forward with respect to compliance and litigation. The attorney–client privilege itself has deep roots in English common law, dating back to the reign of Elizabeth I. While the same basic protections exist in many other legal traditions, the “who, what, where, when, why and how” can be significantly different from jurisdiction to jurisdiction. This Know-how edition is designed to allow practitioners to compare and contrast these nuances, question by question, and to help them navigate scenarios when legally sensitive information is being discussed, shared and handled.