Over the past several years, businesses have shifted their operations from regional-based to a global matrix model, establishing global reporting matrixes, global policies, global operational teams and global decision-making. Such changes have created many unique challenges for U.S. attorneys who work in-house at U.S. business operations.
U.S. attorneys who work in the multinational organization need to consciously identify and understand who the “client” is in the attorney-client relationship, and ensure that they maintain confidence with the client and protect the attorney-client privilege. They need to plan for the possibility that these entities may be sold, become adversaries in the future or become engaged in litigation or government inquires where documents containing their legal counsel may be the subject of discovery requests.
The European Union’s Court of Justice has said that privilege did not apply for advice given by in-house attorneys because they are not “independent” from their client. This ruling applies only to the EU Court of Justice system and not necessarily to the local court systems of member states.
How legal functions are staffed varies from jurisdiction to jurisdiction. In some countries, it is common for non-lawyers to make up the majority of legal departments, creating additional privilege problems.
4. Be clear in legal communications: If legal counsel must be shared with others outside the U.S., include specific language in the documents explaining that legal counsel is being provided, that documents are subject to protection under the attorney-client privilege doctrine, who exactly the legal counsel is being provided to and that the documents may not be shared without the consent of the U.S. attorney. A separate conversation with the recipients about the documents may be appropriate. This will help avoid privilege being waived inadvertently by those outside the U.S. who may not know the law on U.S. privileges.
5. Train on legal privilege: Provide training to legal functions at ex-U.S. affiliates and business managers on the rules around the U.S. privileges. This will set out an understanding for them when legal advice is provided.