"Taming" Legal Privileges: An Analysis of the U.S. and Italian Law

Abstract

Legal privilege guarantees that clients can frankly and openly communicate with their attorneys without running the risk that confidential information is disclosed and used against them. Knowing how to preserve and exercise privilege rights in different jurisdictions is of utmost importance for companies and professionals, especially if operating globally. As demonstrated by recent scandals in the United States and judgments in the European Union, complex privilege issues arise very frequently both in litigation and in the day-to-day business. While legal privilege is recognized in almost every jurisdiction, civil and common law jurisdictions approach and regulate privilege in significantly different ways. This paper compares the legal framework of the United States and Italy through the analysis of case law and decisions. The purpose of this work is twofold: on one hand, to highlight differences and similarities in the U.S. and Italian legal privilege regulation, with a focus on the corporate and cross-border context; on the other, to investigate the different assumptions underlying privilege doctrines, and improve the management of privilege issues in practice.