Attorney-Client Privilege Across Borders: England, the EU, the UAE and Iran Compared

When a company asks a lawyer for advice, it usually assumes the conversation is confidential and cannot be used against it. That assumption is broadly right — but the scope of attorney-client privilege varies considerably between countries. For businesses operating between the UK, the EU, the UAE and Iran, the differences matter in investigations, litigation, arbitration and even data subject access requests. In this article, Dr. Ahmadreza Moini, attorney at law and university lecturer, explains how privilege and professional confidentiality work in each system and how to protect sensitive legal advice in practice.

Privilege and Confidentiality Are Not the Same

Two related ideas are often confused. Professional confidentiality is a lawyer’s duty not to disclose a client’s information. Privilege goes further: it is the client’s right to refuse to disclose certain communications to a court, regulator or opposing party, even where disclosure would otherwise be required. Many civil law systems emphasise the first; common law systems such as England and the United States have developed detailed rules on the second.

England and Wales: Legal Professional Privilege

In England, the concept is called legal professional privilege (LPP). It has two main limbs:

• Legal advice privilege protects confidential communications between a client and its lawyer made for the dominant purpose of giving or receiving legal advice. Following Three Rivers (No 5), the “client” within a company is interpreted narrowly, so communications with other employees may not be protected.
• Litigation privilege protects confidential communications between a lawyer or client and third parties (such as experts or witnesses) made for the dominant purpose of adversarial litigation that is in progress or reasonably in contemplation. The Court of Appeal considered its scope in SFO v ENRC (2018).

Privilege in England extends to advice from in-house lawyers acting in a legal capacity, and is generally accepted to cover advice from foreign-qualified lawyers. It does not, however, cover legal advice given by other professionals: in R (Prudential) v Special Commissioner of Income Tax (2013) the Supreme Court refused to extend it to tax advice from accountants. Separately, “without prejudice” rules protect genuine settlement negotiations from being shown to the court.

The European Union: The Akzo Nobel Limit

In European Commission competition investigations, privilege is narrower. In Akzo Nobel (2010), the Court of Justice confirmed that communications with in-house lawyers are not protected, and protection covers communications with independent lawyers qualified in an EU/EEA member state. This is critical in dawn raids and antitrust investigations — see our competition law lawyer page for compliance and investigation readiness.

The United States: Attorney-Client Privilege and Work Product

The term “attorney-client privilege” comes from US law. It protects confidential communications between attorney and client for the purpose of legal advice, and in Upjohn Co. v United States (1981) the Supreme Court applied it to communications with employees beyond senior management. The separate work product doctrine protects materials prepared in anticipation of litigation.

The UAE: Professional Secrecy and the Financial Free Zones

Onshore UAE law approaches the issue mainly through professional secrecy: advocates are under legal and ethical duties to keep client information confidential. The DIFC and ADGM, whose courts operate on common law principles, recognise privilege concepts that are much closer to the English model. Where documents may be sought in UAE proceedings, the forum is therefore an important factor.

Iran: Professional Secrecy Backed by Criminal Law

Iranian law does not have a developed doctrine of privilege in the common law sense, but lawyers are bound by strict professional confidentiality under the rules of the bar. In addition, Article 648 of the Islamic Penal Code (Ta’zirat) makes it an offence for persons who learn secrets by reason of their profession to disclose them unlawfully. In practice, communications with an Iranian lawyer are treated as confidential, although the analysis differs from an English-style claim of privilege. For Iran-related matters, see our Iranian lawyer services.

Privilege in International Arbitration

Arbitral tribunals are not always bound by any single national privilege regime. Tribunals often refer to Article 9 of the IBA Rules on the Taking of Evidence in International Arbitration, which allows documents to be excluded on grounds of legal privilege and invites tribunals to consider the parties’ expectations and to treat them fairly where different rules apply. Parties from different legal traditions should consider privilege early — our international arbitration lawyer page explains how we help.

Privilege and Data Subject Access Requests

Under the UK data protection regime, personal data covered by legal professional privilege may be withheld in response to a data subject access request, through the exemption in Schedule 2 to the Data Protection Act 2018. Companies handling DSARs during disputes should identify privileged material carefully — see our DSAR support and GDPR lawyer services.

Practical Steps to Protect Legal Advice

• Separate legal advice from business discussions, and make clear when you are asking a lawyer for legal advice.
• Limit circulation of legal advice to those who need it; forwarding widely can weaken a privilege claim.
• Mark documents “Privileged & Confidential – Legal Advice”, while remembering that labels alone do not create privilege.
• Instruct external counsel for internal investigations where litigation or regulatory action is possible.
• Remember that in EU competition investigations, in-house advice may not be protected.
• Agree how privilege will be treated at the start of an international arbitration.
• Check confidentiality and dispute clauses in your contracts — our commercial contract lawyer can help.

Frequently Asked Questions

Is attorney-client privilege the same as legal professional privilege?

They are closely related. “Attorney-client privilege” is the US term; “legal professional privilege” is the English term, which includes legal advice privilege and litigation privilege. Their scope differs in important details.

Is advice from an in-house lawyer privileged?

In England, generally yes, if the in-house lawyer is acting in a legal capacity. In European Commission competition investigations, no — following Akzo Nobel.

Are my communications with an Iranian lawyer confidential?

Yes. Iranian lawyers are bound by professional confidentiality, and unlawful disclosure of professional secrets is an offence under Article 648 of the Islamic Penal Code. How such communications are treated in foreign proceedings depends on the forum’s rules.

Can privilege be lost?

Yes. Privilege can be waived, expressly or by conduct, for example by sharing advice with third parties or relying on it in proceedings. Care is needed when documents are circulated.

Need advice on a cross-border matter? Contact Dr. Ahmadreza Moini for a confidential consultation in English, Arabic or Persian. This article provides general information only and is not legal advice.