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...
