“A Bit of a Mess”: Privilege Abroad

“A Bit of a Mess”: Privilege Abroad

A spring raid by German prosecutors on a Jones Day office in Munich illuminates the legal limbo that attorney-client privilege is in abroad.

The American Lawyer succinctly reports that law enforcement agents investigating Volkswagen for alleged cheating on emissions tests left the office with a mountain of information related to Jones Day’s work conducting an internal investigation of “dieselgate” for VW.

While VW called the seizure a “clear violation of legal principles,” The American Lawyer says that privilege abroad is rather muddled and “a bit of a mess.”

Despite privilege extending in 2011 to correspondence between client and “any independent lawyer, irrespective of the nature of the assignment,” German courts these days aren’t in agreement on “what constitutes a formal engagement between lawyer and client.”

For Munich prosecutors, Jones Day was acting as a third party, not as legal counsel.

When VW failed twice to prevent prosecutors from reading the information they seized, it went straight to the top to the country’s highest court, the Bundesverfassungsgericht (BVG) and were “granted a rare injunction” while the court considers the matter.

But here’s another problem, says The American Lawyer:

“It is currently unclear whether a legal entity from outside the European Union has the right to initiate a constitutional complaint in Germany.”

So, as the publication points out, BVG’s future decision on where legal privilege stands in Germany is an essential one and could affect how companies in the country conduct internal investigations.

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