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Clients in Cross-Border Investigations
This era of instantaneous cross-border communication and commerce has brought with it a corresponding increase in the application of the white-collar criminal laws of various countries to companies' international operations. It also has necessitated increased cooperation among investigating authorities of different nations, including regulators from the U.S., European countries, Eurojust and the European Commission, which coordinate investigations and prosecutions in the EU. In response, multinational corporations have been compelled to increase their diligence in policing fraud and corruption in their international operations. This new reality requires attorneys advising companies and executives doing business in the international arena to anticipate the unique issues that arise in cross-border investigations. Particular concern must be given in advance to whether communications with in-house attorneys and attorneys from foreign nations will be deemed privileged in the country in which they occur and elsewhere.
Privilege Issues
In regard to international representations, lawyers are not created equal. Nearly every country in the world recognizes some form of the attorney-client privilege or the concept of “professional secrets” between a corporate entity and its attorney. Under U.S. law, in-house lawyers are treated the same as outside lawyers with respect to the attorney-client privilege. The application of the privilege to in-house counsel abroad, however, is not as clear-cut.
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