Attorney-Client Privilege in the International

• Author: Sphere Ethan Berghoff and Kate Ó Súilleabháin
• Pages: 273-292

273

HOVERVIEW

Outside counsel work ing in a global economy and corp orate lawyers working on

behalf of mu ltinat ional corpor ations should not assume that communications

with their non –U.S. clients will be protec ted by the attorney-client privi lege. Sim-

ilarly, attorneys in t he United States should not assume that t heir non–U.S. corpo-

rate clients’ communications wit h in-house cou nsel wi ll be deemed pr ivileg ed.

Rules governing privilege i n a foreign countr y may be brought to bear on U.S.

proceedings, a nd the scope of privilege varies widely—not on ly from countr y to

country but, in t he case of U.S. litigat ion, between one U.S. state and another.

Furthermore, s tate and federal courts in t he United States have differin g rules for

determin ing whose privilege law should apply, making t he choice of law analysis

complex. In litig ation in the United States, the degr ee to which the attorney-client

privilege attaches to communications involving law yers or their cl ients in other

nations wil l depend on the particula r jurisdiction in whic h the lawsuit is brought

and the nature of the communication itself. If the priv ilege law of a non–U.S.

jurisdiction is applied, add itional factors may include whether t he communica-

tions at issue are in the lawyer’s or the client’s hands a nd whether the non–U.S.

lawyer is a member of his or her nat ion’s bar association. Given such a complex

set of variables, it may be dif ficult to pred ict whether, and to what extent, com-

munications will be protected from disclosure when two or more jurisdictions’

privilege laws a re potentially at issue. Neverthe less, attorneys who appreciate the

stakes raised by differ ences among privi lege laws can adopt measure s to protect

corporate c lients’ commu nications from unnecessar y disclos ure. Thi s chapter

provides a basic overview of U.S. privilege law, particularly as it pertains to

CHAPTER 18

Attorney- Client Privilege in the

Internation al Sphere

Ethan Berghoff and Kate Ó Súilleabháin

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274 CHAPTER 8

in-house counsel, a nd touches on attorney-cl ient privilege s tandards i n other

jurisdictions as well. Most i mportantly—and with t he understand ing that avoid-

ing problems arising from i nterjurisdictional pr ivilege conf lict s is not always

possible—the chapter offers some practical considerations for attorneys wishing

to protect clients i n the context of international lit igation and arbitration.

HINTRODUCTION

A factual hy pothetical i s helpful when cons idering the i nterplay between the

privilege laws a s applied by federal or state courts in the Un ited States and the

privilege a fforded by other nations. L et us suppose the president of your new c li-

ent, Company F, a manufactu ring company headqu artered in Pa ris, calls you

with news of a lawsuit f iled in a U.S. state court. The plai ntiffs are entrepreneu rs,

all of whom are U.S. cit izens residing in t he United States. These pla intiffs allege

that Company F breached an oral contract to sell most of its major assets. Com-

pany F denies that an agreement was ever reached. However, Company F’s presi-

dent is worried about e-mai ls he and another h igh-rank ing off icer in France

received from a French i n-house lawyer, in which the in-house lawyer advised

that the company should honor it s oral agreement to consumm ate the sale. Com-

pany F’s president is not aware of any other evidence that would tend to show

that the company bel ieved itself to be obligated to sell.

Would you advise Company F’s president that the in-house lawyer’s e-mails

were privileged a nd therefore safe fr om discovery in t he U.S. state court? Would

the answer change if the com munication in question was between the cor pora-

tion (or its in-house counsel) and its attorney in the Un ited States? What if you

wanted to remove the case to federa l court on the basis of diversity of cit izenship

of the parties —would the privilege analys is remain the same?

And what if the nat ure of the lawsuit were completely dif ferent—for instance,

what if the plai ntiffs f iled their case against Company F in a U.S. federa l court in

the firs t place, with subject-matter jurisd iction based on a federal question— say, a

federal patent claim? Or, what if the plaintiff were not a group of U.S. entrepre-

neurs but instead t he European Comm ission alleging that, on t he basis of

findings of the competit ion authority’s “dawn raid” of Company F’s Paris head-

quarters, t he company violated competition laws?

The degree to whic h the in-house counsel’s e-mails wi ll be protected may

well differ in each of these scenarios. Lawyers practicing in the international

arena who appreciate the st akes raised by the vast variations in privilege laws

across multiple jur isdiction s will not only be prepared to advise their non–U.S.

clients faci ng litigation but also will be able to recommend advance measur es to

limit compel led disclosure of lawyer commu nications in U.S. courts.

HA GLOBAL OVERVIEW OF THE ATTORNEY-CLIENT PRIVILEGE

A Crash Course in U.S. Privilege Law

In the United States, the attorney-client priv ilege is governed at the feder al level

by federal common law and at t he state level by state statutory and common law.

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