Academic journal article Texas Law Review

Globalization's Erosion of the Attorney-Client Privilege and What U.S. Courts Can Do to Prevent It*

Academic journal article Texas Law Review

Globalization's Erosion of the Attorney-Client Privilege and What U.S. Courts Can Do to Prevent It*

Article excerpt

I. Introduction

The attorney-client privilege protects the communications of an attorney giving legal advice to a client by preventing courts or adversaries from compelling their disclosure.1 The oldest privilege for confidential communications,2 it has been described as "one of the most revered of common law privileges"3 and as "a time-honored sanctuary."4 Yet despite the privilege's long-accepted place in this country's common law and statutory traditions, recent developments threaten its continued vitality. U.S. government agencies, for example, have commonly begun to seek voluntary waivers of the privilege in return for possible leniency in corporate criminal investigations.5 This practice is seen as a significant threat to the continued viability of privilege in the corporate setting, so much so that a recent article lamented, "The sound you hear coming from the corridors of the Department of Justice is a requiem marking the death of privilege in corporate criminal investigations."6

There is, however, a threat to the attorney-client privilege that is more dangerous and much less recognized than any coming from within the United States. Jurisdictions abroad, specifically the European Union, have formulated privilege rules that protect a much narrower range of communications than U.S. privilege laws.7 These narrow rules present a danger to attorney-client communications for American companies with a presence in E.U. member states. This danger extends beyond the borders of the European Union to threaten the privilege within the United States. The very structure of the U.S. attorney-client privilege makes it susceptible to having its scope and effect limited by the scope and effect of the privilege as defined by other countries.

To illustrate the risks, consider an American company that makes a communication falling squarely within the protection of the U.S. attorneyclient privilege. If that same communication is also made in the European Union and is not protected under the more narrow E.U. privilege rules such that it could be forcibly disclosed in a government investigation, it is arguably not privileged under U.S. law because it was not made in confidence.8 Thus, even if the communication would be considered privileged within the United States, that privilege is arguably waived if the communication is in fact publicly disclosed in an E.U. government investigation. Consequently, within the United States, the privilege afforded to an American company acting internationally may be indirectly defined by the scope of the limited privilege rules of the foreign jurisdictions in which the company acts.

This Note will show that unless U.S. courts take action,9 the U.S. attorney-client privilege10 for international companies will no longer be defined by U.S. courts and lawmakers, but will instead be limited to the lowest common denominator of attorney-client privileges recognized abroad. Part II of this Note describes the state of the attorney-client privilege as it stands under E.U. law, then briefly compares the E.U. privilege to the U.S. privilege. Part III illustrates the problem presented in this Note by reference to the circumstances surrounding the European Commission investigation of John Deere, Inc. Part IV argues that U.S. courts should seek to protect the attorney-client privilege within the United States to the extent that they have the power to do so. That Part then discusses possible doctrinal arguments that courts could use to protect U.S. privilege, ultimately arguing that courts should tailor the doctrine of "selective waiver" to cover the situation raised in Part III.

II. Attorney-Client Privilege Under E.U. and U.S. Law

Attorney-client privilege in the United States has been thoroughly described and analyzed in legal treatises,11 legal textbooks,12 and scholarly articles.13 Due in part to its more recent vintage, coverage of E.U. privilege has not been so sweeping. …

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