The Attorney–Client Privilege in Antitrust: Unravelling the Transatlantic Debate

Abstract The Attorney–Client Privilege constitutes an essential and widely recognized right in judicial systems worldwide, aiming to protect the confidentiality of communications between a lawyer and their clients. However, there is no single understanding among jurisdictions on the scope of the privilege, which stems from different approaches between legal traditions as to the role of the lawyer within the judicial system. In adversarial systems, an attorney is an agent and zealous representative of their client, whereas inquisitorial systems consider the lawyer primarily an instrument to the administration of justice and the search for the truth. On this basis, while the US courts recognize the privilege for in-house lawyers, the European Court of Justice has refused such recognition holding that in-house lawyers are not sufficiently independent to safely fulfil their judicial functions. In an environment of increased international trade between the US and the EU it has become ever-more important to understand and scrutinize both approaches. Issues regarding legal professional privilege become increasingly complicated in cases with extraterritorial elements, where foreign interests rise as a crucial element in the assessment.