Global Attorney-Client Privilege Bootcamp –
How is Your Team Sharing Information?
ACC Bay Area Litigation Committee Meeting
Baker & McKenzie LLP
20 and 21 January 2016 | Palo Alto and San Francisco, CA
Baker & McKenzie LLP is a member firm of Baker & McKenzie International, a Swiss Verein with member law firms around the world. In accordance with the common
terminology used in professional service organizations, reference to a "partner" means a person who is a partner, or equivalent, in such a law firm. Similarly, reference to an
"office" means an office of any such law firm.
© 2016 Baker & McKenzie LLP
Speakers
Mary Blatch
Alex Ponce de Leon
Colin H. Murray
Director
Government and
Regulatory Affairs,
Association of
Corporate Counsel
Discovery Counsel
Google, Inc.
Partner, San Francisco
Maria Chedid
Gary Seib
Partner, San Francisco
Partner, Hong Kong
T: + 1 415 576 3038
E: maria.chedid
@bakermckenzie.com
T: + 852 2846 2112
E: gary.seib
@bakermckenzie.com
© 2016 Baker & McKenzie LLP
T: + 1 415 591 3244
E: colin.murray
@bakermckenzie.com
Ben Allgrove
Partner, London
T: + 44 20 7919 1788
E: ben.allgrove
@bakermckenzie.com
3
Speakers
Erin Maus
Henry Chang
Andrew Stewart
Partner
Taipei
T: + 886 2 2715 7259
E: henry.chang
@bakermckenzie.com
Partner, Sydney
Partner, Chicago
T: + 61 2 8922 5117
E: andrew.stewart
@bakermckenzie.com
T: + 1 312 861 8202
E: erin.maus
@bakermckenzie.com
Pavel Novikov
Juliana Marques
David Gadsden
Partner, Toronto
T: + 416 865 6983
E: david.gadsden
@bakermckenzie.com
© 2016 Baker & McKenzie LLP
Associate, Moscow
T: +7 495 787 2700
E: pavel.novikov
@bakermckenzie.com
Associate, San Francisco
T: + 1 415 591 3210
E: juliana.marques
@bakermckenzie.com
4
Agenda for Today’s Program
1. 
2. 
3. 
4. 
5. 
6. 
Overview of U.S. Privilege Doctrine
Introduction to International Context
ACC Advocacy: In-House Counsel Privilege
Hypotheticals
Key Takeaways
Appendix: Overviews of key issues in various
jurisdictions
© 2016 Baker & McKenzie LLP
5
1
Overview of Privilege
Doctrine in the U.S.
U.S. Legal Advice Privilege
‒  Communications are privileged if they are:
§ 
§ 
§ 
§ 
§ 
confidential and
between a client
and a lawyer in a professional capacity
for the dominant purpose
of giving or getting legal advice or assistance.
© 2016 Baker & McKenzie LLP
7
Pitfalls for U.S. Companies
‒  Expecting privilege to be wider than it is, e.g.
§ 
§ 
§ 
Expecting to get privilege simply by copying a lawyer
Internally circulating documents too widely
Misjudging when litigation is “contemplated”
© 2016 Baker & McKenzie LLP
8
Scope of the Attorney-Client Privilege
‒  Privilege Issues – The Upjohn Principle
Upjohn Co. v. United States, 449 U.S. 383 (1981):
§ 
Communications between in-house or outside counsel and
lower-level employee may be protected if:
§ 
§ 
The communications are made to corporate counsel
The communications are made at the direction of corporate
superiors to secure legal advice from counsel
§ 
The information communicated is not available from upper
management
§ 
The information communicated concerns matters within the
scope of the employee’s duties
© 2016 Baker & McKenzie LLP
9
Scope of the Attorney-Client Privilege
‒  Privilege Issues – The Upjohn Principle
Upjohn Co. v. United States, 449 U.S. 383 (1981):
§ 
§ 
The employees are made aware that they are being questioned
in order for the corporation to secure legal advice
Applies in federal cases using federal law, and most states
except: Alaska, Hawaii, Illinois and Maine
© 2016 Baker & McKenzie LLP
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Scope of the Attorney-Client Privilege
‒  Privilege Issues – The Control Group Test
§ 
Pre-Upjohn test for privilege
§ 
§ 
§ 
Upper management decision-makers
Employees in a position of control or who have a substantial role
in determining what action the corporation should take in
response to legal advice or who is “an authorized member of a
body or group which has authority”
Still used by Alaska, Hawaii, Illinois and Maine
© 2016 Baker & McKenzie LLP
11
Scope of the Attorney-Client Privilege
‒  Privilege Issues – Who holds the privilege?
§ 
Corporation holds the privilege
§ 
§ 
§ 
Unlike the privilege against self-incrimination, the attorney-client
privilege may be asserted by a corporation
See Radiant Burners, Inc. v. American Gas Ass’n, 320 F.2d 314
(7th Cir. 1963)
But it is important to inform the employee that the privilege is
the corporation’s
§ 
§ 
Employee may mistakenly believe the privilege is the employee’s
If that belief is reasonable, courts may hold the privilege applies
to both the employee and the corporation
§ 
Employer corporation may be prevented from disclosing
information
© 2016 Baker & McKenzie LLP
12
Scope of the Attorney-Client Privilege
‒  Privilege Issues – Work Product Doctrine
§ 
§ 
Attorney Work-Product Doctrine: protects documents and
tangible things prepared in anticipation of litigation or for trial
by or for a party or a party’s representative or counsel.
The privilege protects the attorney’s notes, observations,
thoughts and research from the discovery process. The
privilege can sometimes extend to notes, research, etc.
completed at the attorney’s direction by agents in order for the
attorney to develop his or her opinion or legal advice.
§ 
§ 
§ 
The agent must be needed for legal advice.
The agent is acting under the supervision of the attorney.
E.g., United States v. McPartlin, 595 F.2d 1321 (7th Cir. 1979).
© 2016 Baker & McKenzie LLP
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2
Introduction to International
Context
Map of Judicial Systems
© 2016 Baker & McKenzie LLP
15
Attorney-Client Privilege in the International
Context – General Observations
‒  Nearly all countries recognize some form of protection for
attorney-client communications
‒  In common law countries like England, the “privilege” is
normally based on case law
‒  In civil law countries like France, the “privilege” is typically
embodied in statutes
‒  Former communist countries are increasingly recognizing
confidentiality between attorneys and clients
© 2016 Baker & McKenzie LLP
16
Meaning of “Confidential” and
“Communication” May Be Different
Internationally
I
‒  “Confidential” sometimes has the same meaning as in the
U.S., where confidentiality is a required element of
“privilege”
‒  In some jurisdictions that have no “privilege” doctrine, such
as China, “confidentiality” refers to the attorney’s obligation
to the client and is the basis for protecting communications
from disclosure
‒  In some countries, the distinction between protected and
unprotected “communications” can turn on whether they are
in the client’s possession or the lawyer’s possession
© 2016 Baker & McKenzie LLP
17
Meaning of “Privileged Persons” Can Differ
Internationally
‒  Foreign jurisdictions differ from U.S. in how they treat in-house
counsel
§ 
§ 
Common law countries, e.g., England, Australia, Hong Kong,
generally view in-house counsel as “privileged persons,” provided
they are admitted to the governing bar association
Other countries, e.g., France, Italy, Austria, do not view in-house
counsel as “privileged persons;” theory being that in-house
counsel are not “independent” enough from their corporate
employers to render independent professional judgment
‒  More limited nature of discovery in judicial proceedings in
foreign jurisdictions means the issue of disclosure of in-house
counsel communications is less likely to arise
© 2016 Baker & McKenzie LLP
18
3
ACC Advocacy:
Protection for In-House
Counsel
ACC Advocacy: Protection for In-House
Counsel
‒  Core issue for the ACC – numerous amicus briefs in US,
intervened in Akzo Nobel case before the European Court of
Justice
‒  Closely related to issue of status of in-house counsel
‒  Many civil law countries do not require bar admission of inhouse counsel; some countries do not permit bar admission
for in-house counsel at all
© 2016 Baker & McKenzie LLP
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ACC Advocacy: Protection for In-House
Counsel
‒  Raising LPP issue before EU bodies
‒  Advocating for equal treatment of in-house attorneys at the
member state level – admission to the bar, extension of LPP
‒  Educating and engaging stakeholder and partner
organizations in Europe
‒  Educating and engaging stakeholders in the US
© 2016 Baker & McKenzie LLP
21
4
Hypotheticals
Consider:
bakermckenzie.com
Employee approaches In-House Counsel
of Subsidiary of Company, a large U.S.
multi-national consumer electronics
manufacturer, about suspicions of anticompetitive behavior by other Subsidiary
employees in Employee's jurisdiction.
23
Agilent Technologies, Inc. – Proposal Global Transfer Pricing Documentation |
23
Scenario 1:
In-House counsel begins an internal investigation on his or
her own.
Do the communications between Employee and In-House
Counsel meet the definition of a "privileged communication" in
your jurisdiction?
Jurisdiction
“Yes”
“No”
Q
“Maybe”
United States
Canada
United Kingdom
Australia
China
Russia
Brazil
Taiwan
© 2016 Baker & McKenzie LLP
24
Scenario 2:
In-House Counsel engages Outside Counsel in the same
jurisdiction to assist with the investigation.
Does the communication described above meet the definition
of a "privileged communication" in your jurisdiction?
Jurisdiction
“Yes”
“No”
Q
“Maybe”
United States
Canada
United Kingdom
Australia
China
Russia
Brazil
Taiwan
© 2016 Baker & McKenzie LLP
25
Scenario 3:
In-House Counsel contacts Company General Counsel in
the U.S.
Does the communication described above meet the definition
of a "privileged communication" in your jurisdiction?
Jurisdiction
“Yes”
“No”
Q
“Maybe”
United States
Canada
United Kingdom
Australia
China
Russia
Brazil
Taiwan
© 2016 Baker & McKenzie LLP
26
Scenario 4:
Company General Counsel engages U.S. Outside Counsel
and asks In-House Counsel to speak with U.S. Outside
Counsel.
Does the communication described above meet the definition
of a "privileged communication" in your jurisdiction?
Jurisdiction
“Yes”
“No”
Q
“Maybe”
United States
Canada
United Kingdom
Australia
China
Russia
Brazil
Taiwan
© 2016 Baker & McKenzie LLP
27
Consider:
bakermckenzie.com
In-House Counsel learns through his or her
investigation that an improper agreement
may have been entered during a tradeshow
in Hong Kong, involving suppliers in China,
Taiwan and Brazil. The agreement may have
resulted in price fixing and market allocation
in the EU, U.S., Canada, Brazil, Australia,
Russia and China.
28
Agilent Technologies, Inc. – Proposal Global Transfer Pricing Documentation |
28
Scenario 5:
Must Subsidiary turn over the
communications with:
i. 
Assume Subsidiary is based in your jurisdiction. Government in
your jurisdiction begins an investigation and asks for In-House
Counsel's investigations file.
“Yes”
“No”
“Maybe”
ii. 
Employee in the same
jurisdiction?
Jurisdiction
Must Subsidiary turn over the
communications with:
“Yes”
“No”
“No”
“Maybe”
Q
Outside Counsel in the
same jurisdiction?
“Maybe”
Jurisdiction
United States
United States
Canada
Canada
United Kingdom
United Kingdom
Australia
Australia
China
China
Russia
Russia
Brazil
Brazil
Taiwan
Taiwan
© 2016 Baker & McKenzie LLP
“Yes”
“Yes”
“No”
“Maybe”
Scenario 5:
Must Subsidiary turn over the
communications with:
iii. 
Assume Subsidiary is based in your jurisdiction. Government in
your jurisdiction begins an investigation and asks for In-House
Counsel's investigations file.
“Yes”
“No”
“Maybe”
iv. 
Company General Counsel
in U.S.?
Jurisdiction
“Yes”
Must Subsidiary turn over the
communications with:
“No”
“No”
“Maybe”
Q
Outside Counsel in the
U.S.?
“Maybe”
Jurisdiction
United States
United States
Canada
Canada
United Kingdom
United Kingdom
Australia
Australia
China
China
Russia
Russia
Brazil
Brazil
Taiwan
Taiwan
© 2016 Baker & McKenzie LLP
“Yes”
“Yes”
“No”
“Maybe”
EU Law: Is your in-house advice exposed?
YES
Does the advice relate to EU
competition law?
High risk – Akzo
competition law?
NO
What is the governing law?
Civil law jurisdiction
Common law jurisdiction
Where is any
litigation/investigation
likely to take place?
Civil law
jurisdiction
Common law jurisdiction
Low risk – protected by Legal
Professional Privilege
© 2016 Baker & McKenzie LLP
Consider using
external lawyers
Is the advice on a highlyregulated area (e.g. tax,
health & safety,
environmental, financial
services, competition)?
YES
High risk – obligation
to disclose to
authorities
NO
Low risk – disclosure generally
limited
31
Scenario 6:
Assume Subsidiary is based in a foreign jurisdiction, and disclosed
a communication to the Government agents there. Second
Government, in your jurisdiction, demands production of the same
communication.
Q
Must Subsidiary produce the document to Second
Government?
Jurisdiction
“Yes”
“No”
“Maybe”
United States
Canada
United Kingdom
Australia
China
Russia
Brazil
Taiwan
© 2016 Baker & McKenzie LLP
32
Scenario 7:
Must Subsidiary produce to
Competitor the communications with:
i. 
Assume Subsidiary is based in your jurisdiction. Competitor files
civil litigation in Subsidiary's jurisdiction as a result of media report
of investigation. Competitor seeks In-House Counsel's
investigations file.
“Yes”
“No”
“Maybe”
ii. 
Employee in the same
jurisdiction?
Jurisdiction
Must Subsidiary produce to
Competitor the communications with:
“Yes”
“No”
“No”
“Maybe”
Outside Counsel in the
same jurisdiction?
“Maybe”
Jurisdiction
United States
United States
Canada
Canada
United Kingdom
United Kingdom
Australia
Australia
China
China
Russia
Russia
Brazil
Brazil
Taiwan
Taiwan
© 2016 Baker & McKenzie LLP
“Yes”
“Yes”
“No”
Q
“Maybe”
Scenario 7:
Must Subsidiary produce to
Competitor the communications with:
iii. 
Assume Subsidiary is based in your jurisdiction. Competitor files
civil litigation in Subsidiary's jurisdiction as a result of media report
of investigation. Competitor seeks In-House Counsel's
investigations file.
“Yes”
“No”
“Maybe”
iv. 
Company General Counsel
in U.S.?
Jurisdiction
“Yes”
Must Subsidiary produce to
Competitor the communications with:
“No”
“No”
“Maybe”
Outside Counsel in the
U.S.?
“Maybe”
Jurisdiction
United States
United States
Canada
Canada
United Kingdom
United Kingdom
Australia
Australia
China
China
Russia
Russia
Brazil
Brazil
Taiwan
Taiwan
© 2016 Baker & McKenzie LLP
“Yes”
“Yes”
“No”
Q
“Maybe”
Scenario 8:
Assume Subsidiary is based in a foreign jurisdiction, and disclosed
a communication to Competitor in civil litigation there. Second
Competitor, in your jurisdiction, demands production of the same
communication.
Must Subsidiary produce the document to Second Competitor?
Jurisdiction
“Yes”
“No”
Q
“Maybe”
United States
Canada
United Kingdom
Australia
China
Russia
Brazil
Taiwan
© 2016 Baker & McKenzie LLP
35
5
Key Takeaways
Takeaways—Do’s
1.  Understand the law in the applicable jurisdictions
2.  Understand who/what is the client and who holds the privilege
3.  In US investigations – consider use of US counsel in communications
in order to ensure US privilege law applies
4.  Confirm admitted status of in-house counsel where applicable
5.  Conduct regular ethics training with your in-house colleagues
6.  Use job titles that identify in-house counsel as lawyers, not officers of
the company
7.  Establish process where advice cannot be directed/ altered by nonlawyers
8.  Consider use of secure data base for storage of privileged
documents, with limited access rights
9.  Use legal counsel to engage third parties and document that services
are to assist counsel in rendering legal advice
© 2016 Baker & McKenzie LLP
37
Takeaways - Do’s
10.  In-house counsel should report to other lawyers or directly to Board/
CEO
11.  Use legends:
§ 
§ 
“Request for facts so that legal advice can be given”
“For the purpose of receiving legal advice”
12.  Include confidentiality legends on e-mails and faxes
13.  Describe the legal considerations which are involved in the subject
matter
14.  Be aware of the presence of unprivileged persons
15.  Watch the distribution list – need to know basis
16.  Limit storage of records in locations where the privilege does not
exist or is limited in comparison to U.S.
17.  Designate note taker(s) for sensitive discussions with in-house
counsel not protected by privilege
© 2016 Baker & McKenzie LLP
38
Takeaways - Don’ts
1.  Don’t be US centric when operating internationally
2.  Don’t assume internationally that any privilege extends to
non-legal “conduits;” don’t assume privilege is the same as
in the U.S.
3.  If sensitive, don’t write it if you don’t have to
4.  Don’t mix law and business in the same writing
5.  Don’t funnel all information through in-house counsel
© 2016 Baker & McKenzie LLP
39
Takeaways - Handbook
Use this as a guide to determine
what the attorney-client privilege
law is in jurisdictions around
the world
Also visit
http://globalprivilege.bakermckenzie.com/
(if you would like to request access to the
Global Privilege Center, please email
[email protected])
© 2016 Baker & McKenzie LLP
40
Takeaways – Global Privilege Comparison Tool
© 2016 Baker & McKenzie LLP
41
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6
Appendix 1: Jurisdiction
Specific Overview
Australia
‒  Broadly similar to US and UK (minus E.U. overlay)
‒  Several attempts in the past decade to attack the position of
in-house counsel privilege largely on basis of either (i)
holding multiple roles at once (legal + compliance etc) or (ii)
remuneration structures
‒  Position has been firmed up in recent years to accept that in
most cases communications from in house counsel are
protected
‒  Current analysis of privilege focuses on whether in house
lawyer was engaging in the communication in the course of
giving legal advice, as opposed to some other capacity
(compliance etc.)
© 2016 Baker & McKenzie LLP
45
Brazil
‒  Broad protection under Brazilian Constitution - all written
communications between lawyer and client are confidential
‒  No distinction between in-house and external lawyers
‒  Foreign lawyers only covered if they have Brazilian bar
license
‒  Confidentiality waived if document is given to a third party
with consent, but will remain if disclosed by lawyer without
client’s consent
© 2016 Baker & McKenzie LLP
46
China
‒  There are essentially two components to the attorney-client
privilege:
§ 
§ 
Lawyer confidentiality obligations
Evidentiary privilege of non-disclosure
‒  First component is met in China (2012 PRC Lawyers Law,
Article 38)
‒  Second component is dependent upon the context of the
case:
§ 
Civil, Administrative, or Criminal?
© 2016 Baker & McKenzie LLP
47
China
‒ 
In Civil cases, there is no express privilege, but the system
operates to provide a de facto privilege, leading to a low risk that
communications would be subject to disclosure.
§ 
§ 
‒ 
Evidence disclosure / discovery mechanism underdeveloped.
Compelling disclosure of attorney-client communications appears to
violate Article 6 of the General Principles of the Civil Law.
In Administrative cases before the National Development and
Reform Commission (NDRC), there is neither an express
provision, nor developed practice that protects attorney-client
communications.
§ 
Greater risk of penalties if attorney or client refuses to produce
requested communications.
© 2016 Baker & McKenzie LLP
48
China
‒ 
‒ 
In Criminal cases, China has a new limited privilege now
expressly recognized for PRC lawyers appointed as so-called
criminal “defenders” (辩护人) (criminal defense counsel)
Article 46 of the Criminal Procedure Law provides, in translation:
Defender lawyers (辩护律师) have the right to keep confidential (有权予以保密) those circumstances and
information (有关情况和信息) of the entrusting person (委托人) learned in the course of their professional
activities. However, defender lawyers who learn in the course of their professional activities that an entrusting
person or other person is preparing for or is in the process of performing a crime that would harm the national
security, the public safety, or seriously harm another's body or safety shall immediately report [such crime] to
judicial organs (司法机关). [Emphasis added.]
‒ 
As this is a new development, it is not yet fully implemented in
practice. Note:
§ 
§ 
The Defender (the lawyer) owns the privilege, not the client.
A company would presumably get the same privilege in a criminal
case, but this has not yet been developed.
© 2016 Baker & McKenzie LLP
49
China
‒  In light of the uncertainty…
§ 
§ 
§ 
Keep China investigations conducted under the direction of
US counsel
Keep privileged documents in the US with limited distribution
Reporting in the US
§ 
Have a plan for responding in the event US counsel’s legal
advice is demanded (especially in NDRC cases)
§ 
§ 
© 2016 Baker & McKenzie LLP
Legal position papers?
Lobby the State Council?
50
England and Wales
‒  Lawyers have the right to refuse the disclosure of
documents covered by (a) legal advice privilege or (b)
litigation privilege
‒  Legal advice privilege is similar to US attorney-client
privilege. Covers confidential communications between
lawyer and client which are concerned with the giving and
receiving of legal advice (litigation or otherwise)
© 2016 Baker & McKenzie LLP
51
England and Wales
‒  Litigation privilege is similar to US work product protection.
Covers confidential communications between any two
parties provided litigation is at the time genuinely in prospect
and the dominant purpose of the communication is either (i)
enabling legal advice to be sought or given or (ii) seeking or
obtaining evidence to be used in connection with the
litigation.
‒  Confidential information may be transferred to a third party
without the loss of privilege if such party shares a common
interest in the subject-matter of the document/litigation.
© 2016 Baker & McKenzie LLP
52
European Union
‒  Special rules for enforcement of the European
prohibition of cartels and prevention of dominant market
position (EU competition law proceedings)
‒  No privilege for in-house counsel
§ 
§ 
Case C-155/79, AM&S Europe Ltd. v. Commission, 1982
E.C.R. 1575
Case T-125/03, T-253/03, Akzo Nobel Chemicals and Akcros
Chemicals v. Commission, 2007 E.C.R. II-03523
‒  Rationale: in-house lawyers lack independence and are
subject to the instructions and interests of their company
© 2016 Baker & McKenzie LLP
53
France
‒  Law recognizes a “professional privilege” for
confidential information/communications
‒  No attorney-client privilege for in-house counsel
‒  In-house counsel (juristes d’entreprise) have confidentiality
obligations but only based on employee-employer relationship
§ 
can be trumped by demands of governmental and investigatory
bodies
‒  Outside counsel (avocats) have an obligation of absolute
professional secrecy and generally cannot disclose
information provided by clients
§ 
cannot be trumped by demands of governmental and
investigatory bodies
© 2016 Baker & McKenzie LLP
54
France
‒  But generally no U.S.-style discovery in France …
§ 
§ 
except in criminal issues (where prosecuting authorities have
investigation powers, and counsel can be called to testify
against company)
in civil cases, parties are free to disclose whatever information
they choose to support their claims; a party can request that
specific evidence be disclosed, but courts cannot order
disclosure if other party refuses
© 2016 Baker & McKenzie LLP
55
Germany
‒ 
‒ 
Professional privilege (confidentiality)
for outside attorney-client communications
In-house counsel? debatable, but . . .
§ 
§ 
if not admitted to bar (not an unusual situation), no privilege
if admitted to bar,
§ 
§ 
§ 
‒ 
and information is obtained in the course of providing legal advice,
privilege should attach
but if information obtained in course of management, accounting or other
duties, no privilege
in-house counsel must maintain separate offices with sole access
But no U.S.-style discovery (only limited duties to produce
documents), so not necessarily critical in civil litigation context
© 2016 Baker & McKenzie LLP
56
Hong Kong
‒ 
‒ 
‒ 
‒ 
Legal professional privilege is a constitutional and substantive
common law right: (1) legal advice privilege; and (2) litigation
privilege
In-house lawyers can claim privilege as long as they are acting in
their capacity as legal advisers rather than advising on
administrative/business matters
Hong Kong law applies in determination of privilege claims between
a foreign lawyer and a client where claim is made before Hong Kong
courts
No privilege attached when
§ 
§ 
§ 
legal adviser is consulted other than professionally
communications are made for fraudulent or illegal purpose
overridden by courts (e.g. child welfare) or expressly excluded by
statute (e.g. to some extent in bribery investigations)
© 2016 Baker & McKenzie LLP
57
Hong Kong
‒  Privilege lost when
§ 
§ 
§ 
§ 
§ 
waived by client
implied waiver if client sues his solicitor in negligence
document given to a third party unless other privilege exists
(e.g. common interest, without prejudice)
substance of advice disclosed (mere reference of receipt of
legal advice does not constitute a waiver)
accidental disclosure to third party unless it is obvious to
recipient that it was a mistake
© 2016 Baker & McKenzie LLP
58
India
‒  Professional communications between client and lawyer
made with a view to obtaining legal advice are privileged
‒  Also, “legal professional privilege” attaches to documents
prepared in anticipation of litigation
‒  Based on Indian Evidence Act of 1972 and English
precedents (relied on by Indian courts in interpreting the
Evidence Act)
§ 
Prohibits “barrister, attorney, pleader or vakil” from disclosing
client communications and confidences
§ 
Clients cannot be compelled to produce confidential
communications between them and their “legal professional
advisor”
© 2016 Baker & McKenzie LLP
59
Mexico
‒  Concept of attorney-client privilege is not well
developed
‒  But various laws require attorneys to keep client matters
confidential
§ 
§ 
§ 
General Law for Professionals – provides that all
professionals, including attorneys, must keep confidential any
communication with their clients
Federal Criminal Code – contains potential penalties
(including imprisonment) for attorneys who disclose
confidential client information
Mexican Industrial Property Law – protects confidentiality of
company’s trade secrets and proprietary information
(intellectual property)
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Mexico
‒  No independent attorney-client privilege for in-house
counsel, per se
‒  Court generally will uphold party’s (including in-house
counsel’s) refusal to produce documents containing, or to
provide testimony regarding, confidential client matters
‒  If judicial authority orders production of confidential
information, in-house counsel relieved of confidentiality
obligations
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Russia
‒  Attorney-client privilege is very limited in Russia, compared
to the U.S. privilege
‒  Privilege applies to “advocates” only. (Lawyers licensed to
appear in Russian courts on criminal matters)
‒  Most Russian lawyers are not advocates, so no privilege
applies to their communications
‒  Information shared between clients and lawyers (nonadvocates) may be confidential before third-parties but not
before state agencies (e.g., law enforcement)
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Russia
‒  Foreign lawyers do not enjoy the privilege, unless they
qualify as Russian advocates (few, if any, have done this)
‒  Privileged documents should be marked as such, unless
they are stored in the advocate’s office
‒  Privileged documents may be reviewed by police or other
state agents if authorized by court order
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Singapore
‒ 
‒ 
‒ 
Legal professional privilege is recognized under the Evidence Act
1950, was modelled on the Indian Evidence Act of 1872, has its
roots in English Law, and is very similar to U.S. privilege.
The essence is to protect solicitor-client communications.
However, the principles of the legal advice privilege are not
confined to solicitors, but extend to confidential communications
with any legal adviser, to include in-house counsel and foreign
lawyers in a Singaporean firm.
The privilege would likely extend to communications between joint
law ventures or alliances of foreign and Singapore firms law
practices.
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Singapore
‒ 
‒ 
A document disclosed to a third party loses its confidential status, if
it is not marked confidential, unless a reasonable person would
regard the information and relationship between the parties as
confidential.
The litigation privilege is broader than any U.S. counterpart as it
protects any communications between parties (whether an attorney
is involved or not, e.g., risk-assessors, auditors, etc.) discussing
matters pertaining to litigation, provided the party asserting the
privilege can satisfy the dominant purpose test:
§ 
The threshold question that litigation was contemplated whereby the
chance of litigation was higher than 50%, i.e. a reasonable prospect;
and
§ 
That the legal advice sought had been obtained in anticipation or
contemplation of litigation
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Singapore
‒ 
Limits to legal professional privilege:
§ 
§ 
Does not protect communications in furtherance of a crime / fraud
Court may compel client to disclose privileged communication if:
§ 
§ 
Client offers himself as a witness, and
It appears to the court that it is necessary to do so
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Switzerland
‒ 
Lawyers are obliged to keep confidential all client-related
information and correspondence obtained in the exercise of their
functions (even the mere existence of a lawyer/client relationship
is confidential)
§ 
§ 
‒ 
‒ 
Clients can waive the obligation
The privilege is not strictly limited to attorney-client communications,
but is extended to all documents that are a part of the attorney-client
relationship
In Criminal cases, attorney-client communications are protected
against governmental seizure
In Civil cases, attorney-client communications are protected
against document production, irrespective of the location or the
point of time it was produced
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Switzerland
‒ 
‒ 
Whether the attorney-client privilege applies to in-house counsel is
controversial. In 2008, the Federal Criminal Court decided in-house
counsel are outside the scope of the attorney’s legal privilege;
however, the Swiss Supreme Court has not yet made a ruling on
this matter
Obligation is likely to apply to foreign lawyers
§ 
§ 
‒ 
Swiss Attorney regulations also apply to attorneys from the European
Community and European Free Trade Association (EFTA)
Swiss Penal Code also applies to attorneys from the European
Community and EFTA, as well as attorneys from other foreign countries
Clients are free to disclose their own information → likely to result in
loss of privilege
§ 
Disclosure of confidential information to third parties not subject to a
confidentiality obligation will result in the loss of privilege
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