The Protection of the Confi dentiality of Cross-border Legal Services Der Schutz der Vertraulichkeit bei grenzüberschreitender Anwaltstätigkeit

In Germany, the protection of the confidentiality of the lawyer-client relationship is most commonly seen as a procedural question, and in cross-border cases it is therefore governed by the law of the forum. In the United States, by contrast, the classification of the attorney-client privilege is highly disputed and in conflict of laws a substantive law approach is often favoured. As the quality and scope of the protection often vary substantially, the classification of the privilege and the law applicable to it might become the decisive point of litigation. This paper analyses the negative consequences the prevailing procedural classification has on the confidentiality expectation of clients and lawyers acting internationally in Germany. The forum in which future litigation might be brought is in an international setting hardly ever foreseeable. At the time a client seeks legal advice he will, therefore, not consider the lex fori to be the law that eventually will or will not protect the confidentiality of his conversation with his lawyer. Protecting the client's expectation of confidentiality and thereby fostering an open and free conversation between attorney and client is the very essence of the attorney-client privilege, and infringements of confidentiality might therefore cause considerable harm to the policy aims of the privilege as a whole. Another disadvantage of the application of the lex fori is that the criminal law provisions covering the lawyer's duty to remain silent might be governed by the law of one state, i.e. regularly the law of the lawyer's state of practice, while his procedural duties are governed by the law of another. If the protection afforded to the attorney-client privilege in the second state is less than in the first, the lawyer might be in a difficult situation. He has to choose between either a criminal sanction in his state of practice or punishment for contempt of court in the state of litigation. After a thorough analysis of possible alternatives to the lex fori approach, the article concludes by advocating the application of the law of the attorney's state of practice.