Introduction
Across the United States (U.S.) jurisdictions, attorney-client privilege broadly protects communications between lawyer and client. This privilege protection extends to a wide array of circumstances, ranging from intra-corporate discussions to discussions involving agents of counsel. While some other common law jurisdictions, such as Israel, have similarly broad attorney-client privilege, internationally many jurisdictions’ rules provide significantly narrower protections. The many differences in the scope and mechanisms of attorney-client privilege across jurisdictions internationally require attorneys representing multi-national clients to take special precautions.
In today’s era of widespread transnational business, investigations, and disputes, it is important for counsel and clients to understand the contours of attorney-client privilege across borders. This article provides a brief overview of the basic attorney-client privilege principles in the U.S., Israel, and the Netherlands to serve as a starting point for understanding the core differences between the legal privilege schemes.
U.S. Legal Privilege
Legal privilege in the U.S. is embodied in the rules of professional conduct for lawyers and the rules of evidence and procedure applicable in courts. The two most common types of legal privilege recognized in U.S. jurisdictions are attorney-client privilege and work product privilege. Attorney-client privilege applies to communications between an attorney and his or her client, if made in confidence for the purpose of seeking or rendering legal advice.[1] While work product privilege applies to written or oral materials that are prepared by an attorney in the course of legal representation, such as those prepared in relation to litigation.[2] The client holds the privilege, and thus it may only be waived by the client.
This legal privilege applies equally to communications between an external lawyer with his or her client and those between an in-house attorney and a company employee. As a result, privilege applies so long as the communications are for the purpose of receiving legal advice, the employee providing that legal advice was acting in his or her professional capacity (subject to limitations), and the lawyer is a member of the bar of a court, or is the subordinate of one.[3]
Israel Legal Privilege
Like the U.S. rules, Israeli law[4] extends legal privilege both to external and in-house counsel. Israeli attorney-client privilege broadly protects information and documents, pertaining to legal advice, exchanged between an attorney and client. Israeli privilege also extends to materials and information prepared for litigation—this includes both materials prepared once litigation has commenced and in anticipation of litigation.
Also like its U.S. counterpart, Israeli privilege rules equally protect communications between clients and in-house counsel as well as external counsel. This privilege rests with the client, and thus can be waived only by the client.
Dutch Legal Privilege
In Europe, attorney-client privilege is commonly referred to as legal professional privilege (LPP). In the Netherlands, LPP is provided for by rule six of the Dutch Rules of Conduct and Article 272 of the Dutch Criminal Code.[5] Furthermore, the right to refuse to be deposed as a witness for certain types of professionals, including bar members, is granted by of the Dutch Code of Civil Procedure section 165(2)[b]. In general LPP applies to almost all lawyer-client correspondence. This correspondence includes internal documents prepared for the purpose of seeking legal advice from a lawyer, any advice given by the lawyer, and internal reports/summaries of a lawyer’s advice.
Under Dutch law, LPP only applies to client communications with lawyers who are members of the Dutch bar. External counsel are Dutch bar members. But, generally in-house counsel are not bar members because a law license is not a requirement for serving as in-house counsel in the Netherlands. Thus, while in-house counsel who are admitted to the Dutch bar as salaried lawyers may invoke LPP— provided that it is clear from the documents that the in-house counsel acted in his capacity as a lawyer—it is important to verify the in-house lawyer’s status prior to communicating any confidential information to ensure that LPP is not inadvertently lost.[6]
Additionally, unlike the U.S. and Israel, in the Netherlands the lawyer controls the privilege and not the client. Although LPP can be waived by either the client of the lawyer,[7] the lawyer remains responsible for any waiver of LPP. Thus, should a client waive LPP, the lawyer must independently assess whether the waiver is appropriate, and will be personally accountable for that LPP waiver decision.
Practical Considerations
Given the important distinctions between U.S. and Israeli attorney-client privilege and Dutch privilege law, particular caution should be exercised by U.S. and Israeli counsel when sharing documents and information with counsel/client personnel in the Netherlands. Certain documents and communications that may be afforded legal privilege in the U.S. and Israel, may not be afforded the same privileges in the Netherlands.
It is important to note that multi-national companies embroiled in U.S. litigation or subject to a U.S. investigation that involve other national jurisdictions, will not necessarily apply U.S. law. Many U.S. courts apply a “touch base” test, which requires a court to apply the law of a country that has the most predominant or direct interest in whether the communications should remain confidential.[8] This generally means that communications concerning legal proceedings in the U.S. or advice regarding U.S. law “touch base” with the U.S.; while foreign proceedings or advice on foreign law generally “touches base” with the foreign jurisdiction. This test is especially important for in-house counsel whose employers’ operations cross national boundaries. Given the international reach of many legal issues it is important that in-house counsel and businesses are made actively aware of the differences in privilege laws and implement the proper safeguards.
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