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To what extent does attorney-client privilege apply to communications between a client and a lawyer licensed in a foreign jurisdiction, if it applies at all? Does it matter if the foreign jurisdiction would grant narrower or wider protections?

The foreign lawyer is foreign in sofar that they are not allowed to practice law in a reference jurisdiction, i.e. lawyers with ad-hoc authorizations or reciprocal privileges are not foreign. Recognized foreign legal consultants may be considered foreign.

The client may or may not be in the reference or foreign jurisdiction when the communication occured.

If it makes the situation simpler, the foreign lawyer may be assumed to deal exclusively on the law of their licensing jurisdiction.

If it makes a difference, consider both situations where the client has or has not a nexus with the reference jurisdiction, e.g.,

  • a client residing in the reference jurisdiction communicates with a foreign lawyer online on a matter of foreign law; are these communications protected in the reference jurisdiction?
  • a foreign lawyer is found in the reference jurisdiction with files on their foreign clients; are those files privileged to the authorities in the reference jurisdiction?

Answers dealing with any aspect from any jurisdictions are welcome.

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There isn't much case law on point, but generally, a client's confidential communications with a foreign attorney will be treated as protected by the attorney-client privilege in almost any U.S. jurisdiction.

There are some cases where there would be definitional issues (e.g. would a communication with a legally trained civil law notary be protected by the attorney-client privilege; who would qualify as a lawyer in Saudi Arabia), but those specific issues arise so infrequently that few of those questions have definitive answers. Facts including the place where the discussions took place and the subject-matter of the representation would be relevant to resolving those questions.

There are myriad fine details that would have to be resolved on a case by case basis (e.g. U.S. exceptions to the attorney-client privilege). Usually, the law of the forum where the privilege is invoked would be applied to the extent feasible, and in absence of a strong argument for doing otherwise.

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  • Thanks. For the choice of the law question, I assume if the communication isn't protected in the foreign jurisdiction, the court may find the client had no expectation of privilege, which seems to be the case in some case law I found (e.g. European in-house counsels; although several countries are reforming the law now).
    – xngtng
    Nov 8, 2023 at 11:00
  • @xngtng "e.g. European in-house counsels; although several countries are reforming the law now" While this is a reasonable argument to make, and might prevail some of the time, more often than not U.S. forum state law making these communications privileged would be applied.
    – ohwilleke
    Nov 8, 2023 at 16:26

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