Contribution to Book
Disparate Positions on Confidentiality and Privilege Across National Boundaries Create Danger and Uncertainty for In-House and Their ClientsLegal Ethics for In-House Corporate Counsel (2007)
AbstractThe bar in the United States is a unified one, with attorney-client privilege, work product immunity and the duty of confidentiality attaching to its members as a general premise. In most other countries, the bar is bifurcated, and distinctions are made between lawyers undertaking different areas of work. Among the distinctions made between the different legal professions is the existence and applicability of the doctrine of privilege and confidentiality. In many countries, rules relating to confidentiality and privilege are confined to lawyers who are members of the bar. Excluded from bar membership in many of these countries are in-house counsel, the concept being that the "independence" which is called for in legal practice is evidenced by self-employment. It is felt that financial reliance on a single employer carries with it the surrender of ethical autonomy. Increasingly, as clients conduct business on a global basis and cross-border legal practice increases, disparate standards on confidentiality and privilege are giving rise to recurring problems. Most vulnerable seem to be in-house counsel advising companies that operate in multiple jurisdictions. Some countries grant legal professional privilege to in-house counsel, while others do not. Some countries call for criminal sanctions to be imposed if a confidentiality obligation is breached, while others only protect documents in the possession of the lawyer. When the reach of a lawyer's practice transcends borders, the lawyer must ascertain to whom, and to what, confidentiality applies or privilege attaches. Something may be protected in one jurisdiction, but not in another. It is incumbent upon lawyers to acquaint themselves, and their staffs, with rules relating to confidentiality and privilege in all relevant jurisdictions. This is particularly true for in-house counsel, whom are shown to be significantly impacted by the reach of these doctrines.
- comparative law,
SeriesCorporate Practice Series
Citation InformationLouise L Hill. "Disparate Positions on Confidentiality and Privilege Across National Boundaries Create Danger and Uncertainty for In-House and Their Clients" Legal Ethics for In-House Corporate Counsel (2007)
Available at: http://works.bepress.com/louise_hill/4/