I just returned from an overseas family vacation where I boldly decided to tour the countryside in a rental car. I confess to having been a bit unprepared for the challenges of driving in a foreign country. For example, I was embarrassed to discover that the sign that read “60” was a reference to the speed limit, not Route 60, the road on which I was supposed to have been driving. That set me back a good half-hour. And while I tend to rely on Siri for directions, she doesn’t do foreign languages well (her “turn left on Rehov Mendele Mocher Sefarim” was not helpful). Perhaps most jarring, who knew that the protocol for informing a driver that he is in the wrong lane is to get out of one’s car, scream bloody murder, bang on the offender’s (my) window with both fists, and repeatedly kick the side of the car? My driving experience bore greater resemblance to the chase scene from Bullitt than a relaxing ride in the Family Truckster.
As hard as it is to drive in a foreign country, protecting client confidences when dealing with someone in a foreign country can be an even greater challenge. Varying legal cultures (most countries don’t have broad discovery mechanisms like we do) and different regulatory regimes (many countries have different categories of “legal professionals”) lead to a hodgepodge of rules around the globe. (In China, for example, while there is a duty of confidentiality for “private information,” that duty may be trumped by a lawyer’s oath “to be faithful to the motherland and the people [and] to uphold the leadership of the Chinese Communist Party and the socialist system.”)
Although we in the US take for granted that a communication between an attorney and his or her client will be protected from disclosure, a communication that might be recognized as privileged in a US court, might not enjoy the same protection in a foreign tribunal. By the same token, where alleged privileged communications took place in a foreign country or involved foreign attorneys or proceedings, US courts won’t necessarily recognize a privilege; they may defer to the law of the country that has the “predominant” or “most direct and compelling interest.” Astra Aktiebolag v. Andrx Pharmaceuticals, Inc., 208 F.R.D. 92, 98 (S.D.N.Y. 2002).
Akzo Nobel Chemicals Ltd v. European Commission, Case C-550/07-P (September 14, 2010), is required reading for anyone advising a client in the EU. In that case, the European Court of Justice determined that a company is entitled to confidentiality protection only with respect to communications emanating from “independent lawyers.” The court further found that in-house counsel did not qualify as “independent lawyers”; thus, in-house counsel’s communications with employees were not subject to protection. Akzo (and other EU decisions) can have serious consequences for US lawyers. Since US attorney-client privilege is based on assumption that client has a reasonable expectation of confidentiality, litigants may argue that US companies have no reasonable expectation of confidentiality in communications to and from in-house counsel shared with company personnel in Europe. Akzo also left open the question of whether communications with non-EU regulated attorneys (i.e., US admitted attorneys) would be protected in EU proceedings.
Cross-border representations, like driving, can be fraught with peril. Before doing either, make sure you familiarize yourself with local laws and procedures.