“Legal professional secrecy and privilege represent the bedrock of the relationship between a client and their lawyer, especially in the criminal and regulatory context, where confidentiality can become either a shield or a point of challenge”, Alexandru Ambrozie | Legal & Strategic Counsel, Ambrozie.com, told us.
Companies are increasingly required to prevent, investigate and explain potentially sensitive conduct before assertive authorities. This article offers a practical, cross-border look at how legal privilege and professional secrecy actually work for companies in Romania.
In practice, internal investigations involving Romanian companies are often initiated or driven from abroad – by foreign parent companies, regulators, prosecutors or external counsel in the United States, the United Kingdom or France. Because privilege may be assessed under the rules of the jurisdiction driving the investigation, and because Romanian law gives limited guidance and little case law, this article compares the Romanian position with those of the United States, England and Wales, and France.
I. What is covered by privilege?
Unlike Romania, where protection rests primarily on the lawyer’s statutory duty of professional secrecy rather than on developed common-law doctrines, both the United States and England and Wales recognise two main categories of protection.
The first concerns non-litigious situations – known as „attorney-client privilege” in the United States and „legal advice privilege” in England and Wales. The second, called the „attorney work product doctrine” in the United States and „litigation privilege” in England and Wales, applies where litigation is contemplated.
• Outside litigation, the US attorney-client privilege protects confidential lawyer-client communications made to seek or give legal advice, and can extend to certain third parties (such as financial advisers) brought in to help the lawyer advise. English legal advice privilege is broadly similar, but generally does not cover those third-party communications and applies only where legal advice is the dominant purpose of the communication.
• When litigation is anticipated, the US work product doctrine protects materials prepared for litigation, with the strongest protection for a lawyer’s mental impressions and legal theories. England’s litigation privilege protects communications and documents created for the dominant purpose of actual or contemplated litigation; recent case law confirms it can be invoked even by a non-party and is not limited by the narrow definition of “client” that applies to legal advice privilege (see Section II).
France protects communications with avocats through professional secrecy (secret professionnel). A 2026 reform will also give limited confidentiality to certain written legal opinions prepared by qualified in-house counsel (juristes d’entreprise) once it takes effect – but that protection will not apply in criminal or tax matters.
In Romania, the lawyer’s duty of professional secrecy is framed broadly: it covers every aspect of the matter entrusted to the lawyer, including information, data and documents connected with the mandate. But Romanian law has not built up a detailed body of case law distinguishing legal advice privilege, litigation privilege, work product and selective waiver.
II. Which of the company’s employees represent the client for privilege purposes?
When the client is a company, identifying who counts as the „client” is crucial in common-law systems, since not every employee necessarily represents the corporate client for privilege purposes. In Romania the question is less developed in case law, but the same practical point matters in any investigation: who instructs counsel, who receives the advice, and how confidential legal material is circulated inside the company?
Approaches differ. US courts take a functional, case-by-case view: an employee’s communication can be privileged depending on their role and whether it was made to enable the company to obtain legal advice; however, recent US case law strongly protects internal-investigation materials. England and Wales take a narrower line for legal advice privilege, limiting the “client” to those employees specifically authorised to seek and receive legal advice for the company, though that restriction does not apply to litigation privilege.
In France, the new in-house regime looks not only at who drafts the advice but also at who receives it: circulating it beyond the permitted recipients (the legal representative, governance bodies or specified group entities) may undermine the protection.
In Romania, with little official guidance or case law on this point, companies should not assume that every internal communication touching on legal issues is automatically protected. The safer course is to define and document, from the outset, who handles the legal mandate.
III. Who is the attorney – are communications with in-house counsel protected?
In the United States, communications with in-house lawyers can be privileged if made to obtain legal – not purely business -advice, though courts remain divided on “dual-purpose” communications. Under English law, in-house lawyers are generally treated like external counsel when acting in a legal capacity, but the narrow definition of „client” for legal advice privilege still applies.
Romanian law is unclear on in-house counsel. In-house lawyers who are not Bar members, and their employers, do not enjoy the same professional-secrecy framework as external lawyers. The position can be more complex where the person is also a Bar member – but the decisive question is not formal status: it is whether they are acting in an independent professional capacity as a lawyer, or as an employee giving internal legal, commercial or business advice. This matters because in-house teams often do both.
In France, the 2026 reform is genuine but limited: it does not turn in-house lawyers into avocats and does not protect them in criminal or tax proceedings or against EU investigations. For white-collar, anti-corruption, tax, sanctions, market-abuse or competition matters, involving an external avocat remains essential.
IV. Limited disclosure and selective waiver
Selective waiver means sharing a privileged document with a third party without losing privilege. The idea is familiar in common-law systems but should not be transposed mechanically into Romanian law.
In the United States, disclosing even a single privileged document to a third party – including a regulator – may waive privilege over the whole subject matter, though protective measures can reduce that risk. English law is more permissive, allowing limited (selective) waiver provided the document stays confidential and is disclosed only for a defined purpose, such as to a regulator.
In France, the new in-house regime lets a company waive confidentiality, but the protection does not hold in criminal or tax proceedings, remains subject to EU authorities, and can be lifted in administrative proceedings – so careful document review is needed before any disclosure to authorities.
In Romania, selective waiver is not regulated and should not be imported wholesale from common-law systems. Professional secrecy has a public-order dimension: it binds the lawyer independently and is not simply a private right the client can freely give up. A company may decide to disclose documents in its own possession, but any disclosure should be carefully limited, made for a specific purpose, and framed to avoid any suggestion of a broader waiver.
V. Joint representation and common interest
Joint representation can arise where the same lawyer acts for more than one client on a common matter. It differs from common-interest arrangements, which involve sharing already-privileged material between separately represented parties with a shared legal interest.
In investigations, these issues can arise between a company and its directors, officers or group companies whose interests are aligned. Shareholders need more caution: a shareholding alone should not be assumed to give access to the company’s privileged advice.
In the United States and England and Wales, communications made in a genuine joint representation are generally protected against third parties, but the effects of waiver and of any later falling-out between the clients are fact-sensitive and should be addressed in the retainer or investigation protocol from the start.
One recent development is worth noting: the so-called “shareholder rule” – under which a company could not assert legal advice privilege against its own shareholders – has now been rejected and should no longer be applied in England and Wales.
In France, common-interest arrangements should be handled contractually and with caution: the avocat’s professional secrecy is not a privilege that can simply be shared among aligned parties, and the new in-house regime only covers qualifying opinions shared with the statutory list of recipients.
In Romania, joint representation does not reduce the rights each client normally has, and the confidentiality rule does not apply between the jointly represented clients themselves.
But it should be approached with caution, especially in investigations or criminal matters involving both a company and its directors or officers. The same external counsel can act for several clients only where their interests are sufficiently aligned, the clients are properly informed, and there is no conflict or real risk of one. The mandate should also set out how information will be shared and what happens if interests later diverge.
If a conflict arises – or the lawyer can no longer protect each client’s interests, preserve secrecy or stay independent – the lawyer may have to stop acting for one or more of them, and information obtained during the joint representation must not be used or disclosed in breach of professional secrecy and the duty of loyalty.
For more details consult Ambrozie.com.