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Global Investigations Review - The law and practice of international investigations
F Joseph Warin
Daniel P Chung
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Are communications between an attorney and client protected? Under what circumstances?
Does the privilege only protect legal advice? Does it also protect non-legal communications between an attorney and client, such as business advice?
Is a distinction made between legal advice related to litigation and other legal advice?
What kinds of documents are protected by the privilege? Does it cover documents that were prepared in anticipation of an attorney–client communication? Does it cover documents prepared during an attorney-led internal investigation?
To what extent must the communication be confidential? Who can be privy to the communication without breaking privilege?
Is the underlying information privileged if it can be obtained from a non-privileged source?
Are there any notable exceptions or caveats to the privilege?
Are there laws unrelated to privilege that may protect certain communications between attorney and client?
To what extent does the privilege extend to in-house counsel?
Does the privilege protect communications between an attorney and a corporate client’s employees? Under what circumstances?
Does the privilege protect communications between non-lawyer employees of a corporate client if they are acting at the direction of counsel or gathering information to provide to counsel?
Must the attorney be qualified to practise in your country to invoke the privilege?
Does the privilege extend to non-lawyer third parties? In which circumstances does the privilege protect communications with third parties if they are providing advice related to a legal matter?
Does the privilege apply to communications with potential clients?
Does the attorney or the client hold the privilege? Who has rights under the privilege?
Can the privilege be waived? Who may waive it?
Is waiver all or nothing? Is it possible to waive the privilege for certain communications but not others?
If two defendants are mounting a joint defence, can they share privileged information without waiver? What about two parties with a common interest?
Is it common for attorneys and clients to agree to a confidentiality provision in a contract?
Describe the legal basis of the rules governing the privilege. Are these rules found in a constitution or statute, or in case law?
Is the privilege primarily characterised as a procedural or evidentiary rule, or is it characterised as a substantive right?
Describe any differences in how the privilege is applied in the criminal, civil, regulatory or investigatory context.
Are the rules regarding the privilege uniform nationwide or are there regional variations within your country?
Does a professional organisation enforce the maintenance of the privilege among attorneys? What discipline do attorneys face if they violate privilege rules?
What sanctions do courts impose for violating the attorney–client privilege?
How can parties invoke the privilege during investigations or court proceedings? Can the privilege be invoked on the witness stand?
In disputes relating to privilege, who typically bears the burden of proof?
Does the privilege protect against compulsory disclosures such as search warrants or discovery requests? Is there a distinction between documents held by the client and documents held by the attorney?
Describe the choice-of-law rules applied by your courts to determine which country’s privilege laws apply. To what extent does your country recognise the validity of choice-of-law provisions in contracts, particularly as they apply to privilege?
Does the privilege terminate on the death of either the attorney or the client?
Does the privilege terminate on the conclusion of the attorney–client relationship?
Is the privilege destroyed if the client communicates information to the attorney to further a crime or perpetuate a fraud?
Is the privilege terminated if the attorney makes an inadvertent disclosure? If such a disclosure is made, can the attorney retrieve the privileged information or otherwise correct the error?
Is the privilege terminated if a third party is included in the communication or is subsequently forwarded the communication?
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Trench Rossi Watanabe
Baker McKenzie (China)
Gibson, Dunn & Crutcher
Debevoise & Plimpton (France)
Debevoise & Plimpton LLP
Baker McKenzie (Italy)
Baker McKenzie (Japan)
Baker McKenzie (Mexico)
Baker McKenzie Habib Al Mulla
Outer Temple Chambers
McGuireWoods London LLP
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