The internationalization of white-collar practice has forced defense attorneys dealing with conduct in the corporate setting to become more aware of the disparate rules around the world regarding the protections for counsel's activities.¹ Recent investigative actions, including a highly-unusual raid on the Munich office of the U.S. law firm Jones Day by German authorities,² as well some notable European court rulings suggest an erosion of protections for attorney communications and work product in the corporate context. As a result, corporations operating globally face significant uncertainty regarding their ability to maintain confidentiality, especially in the context of internal investigations. Companies and their U.S. law firms must carefully consider the manner in which they conduct internal investigations abroad.

A recent landmark decision from the United Kingdom's High Court of Justice, a court of first instance, demonstrates this troubling trend. In Director of Serious Fraud Office v. Eurasian Natural Resources,³ the London Court ruled that documents prepared during an internal investigation—or at least the early stages of such an investigation—are not protected by any privilege.

Europe and the European Union

In the United States, case law, statutes, and rules of professional responsibility protect counsel's activities in the corporate context, principally by means of the attorney-client privilege, applicable to attorney-client communications, and the work-product doctrine, which protects materials prepared by counsel in anticipation of litigation. The value placed on these protections abroad can be much lower. In many instances, protection for attorney confidentiality applies only to communications between lawyers and clients for the purpose of exercising the client's right of defense, and courts do not recognize the work-product doctrine as understood in the United States.

In practice, a number of other significant distinctions exist between protections afforded counsel activities in the United States and abroad. First, many European countries and the EU reject the application of any legal privilege to in-house counsel. Despite strong disapproval from bar organizations in those countries, these jurisdictions take the position that the privilege applies only to “independent lawyers” who have no employment relationship with the corporation. A soon-to-be-published survey of in-house counsel by the Association of Corporate Counsel reports that more than 60 percent of European respondents said the privilege does not apply to them.⁴ Further, protection for counsel activities in Europe extends only to counsel who are admitted to a bar in one of the member states of the European Union. Thus, admission to a bar in the United States is insufficient to support such protection in Europe.