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A New Era in Disclosure – Multijurisdictional Standards for Attorney-Client Privilege

"Once you disclose privileged information, you disclose it to the world."

A s we enter into a new era of rapid globalization, the need for developing an airtight strategy to maintain attorney-client privilege cannot be underestimated. Although often viewed as a powerful tool in the United States, privilege protections vary considerably in other countries. As such, in-house counsel should become acutely aware of these differences and act accordingly to ensure positive cross-border relations for years to come.

With this in mind, the 2016 ACC Annual Meeting session, "Developing a Multijurisdictional Strategy for Protecting Attorney-Client Privilege," served as an essential learning opportunity for attendees hoping to gain an in-house perspective on this pressing issue. The expert panel defined differences in disclosure protections on a global scale, and outlined essential tools to help in-house counsel navigate multiple jurisdictions with conflicting privilege standards.

Here are the key takeaways:

  • When multiple suppliers are involved, clarify in writing who owns the privilege so there is no confusion later. This can take the form of a common defense and confidentiality agreement that clarifies who owns the privilege and who can share information with the authorities.
  • When a corporation engages with in-house counsel in the People's Republic of China (PRC), it's important to have a confidentiality agreement in place so in-house counsel can refer back to it if any problems arise. In the PRC, you cannot assert in-house privilege under foreign law. As such, make sure you have a panel of outside counsel, and include confidentiality clauses in any engagement letter. Include arbitration in writing, as Chinese courts tend to respect such clauses.

James Cole, partner at Sidley Austin LLP, warned of the increasing liability that technology presents to any global transaction moving forward. To ensure a positive outcome, sensitive information should be handled with the utmost care when being transferred internationally.

"Be careful what you write at all times, because you never know where it may end up. For example, in the hands of an acquiring company in a merger," he said.

Steven Seltzer, vice president and associate general counsel for MetLife, furthered this point by emphasizing the role of modern technology in increasing global business relationships. To Seltzer, the best strategy for in-house counsel moving forward is to constantly consider the bigger picture.

"If I am liaising by email with someone in another jurisdiction, I need to stop and think about the implications related to that privilege. In-house counsel must ask themselves: where is the next issue likely to arise?" he said.

Thinking ahead, the panel outlined recent guidance practices set forth by the UK Law Society in England and Wales. By staying abreast of new privilege developments in other countries, in-house counsel can ensure future cross-border success while mitigating risk in the process.

The session was truly a memorable moment of the 2016 ACC Annual Meeting. The panel introduced innovative strategies to practical in-house obstacles and encouraged an interactive discussion through lively audience participation. Speakers included James Cole, partner, Sidley Austin LLP; Rafael Barreto Garcia, chief legal counsel general counsel, and corporate secretary, CEITEC Semiconductors; Anthony Gillette, senior counsel, Epiq Systems Inc.; John Keith, chief counsel, BT Group plc; and Steven Seltzer, vice president and associate general counsel, MetLife.

The information in any resource collected in this virtual library should not be construed as legal advice or legal opinion on specific facts and should not be considered representative of the views of its authors, its sponsors, and/or ACC. These resources are not intended as a definitive statement on the subject addressed. Rather, they are intended to serve as a tool providing practical advice and references for the busy in-house practitioner and other readers.