Under the laws of the United States, a client’s communication with his/her lawyer for the purpose of seeking or providing legal advice is protected by the well-established attorney-client privilege. Additionally, documents or other tangible things prepared in anticipation of litigation by or for a party are also protected by the work product doctrine under the laws. Applying these bodies of law to communications or documents by clients in the U.S., on its surface, seems to provide clear-cut answers as to what is shielded from disclosure and what is not. Not so fast.
Nowadays, online cross-border transactions, regardless of their size, have become a fairly significant portion of our daily lives. Naturally, disputes of a client in the U.S can stem from the facts and issues not only in the U.S. but also from abroad, and the client may have communicated with foreign lawyers concerning their issues that are not domestic. Under such circumstances, adjudicative authorities in the U.S. must determine which country’s privilege laws apply to the client’s communications to resolve the disputes. The determination would have significant impact on the outcome of the disputes because many foreign legal systems often do not recognize the attorney-client privilege and work product doctrine to the extent the U.S. does, and the client can be forced to disclose something that would otherwise be protected from disclosure under U.S. laws.
Federal courts have used several methodologies to answer this choice-of-law question. One of the most frequently cited ones is by focusing on which country has the predominant or compelling interest in whether the communications at hand should remain confidential. To make that determination, the courts look for, among other things, the participants in the communication, the substance of the communication, and the location where the relationship was centered at the time of the communication, which are by nature fact-based. That is, whether or not one’s communication is shielded from disclosure in a U.S. legal proceeding depends on the client’s unique facts and circumstances.
Thus, when clients communicate with foreign legal professionals over matters that they think probably should not be open to the public at the outset, taking proper precautionary measures to protect their communications becomes crucial. Such measures can be simply getting into a habit of separating legal communications from all other communications or limiting recipients of their communications to necessary parties. Having specific and favorable choice of law provisions in any of the clients’ agreements contemplating cross-border transactions can also help. The list goes on, but the takeaway is clear: making clear indications as to whom the communications are being made and for what purpose becomes especially important when the clients want to minimize the risk of losing privilege protection over important communications with their lawyer concerning cross-border deals.