Attorney Legal Privilege Challenges for US and EU businesses
The divergences in the transatlantic framework for the Legal Professional Privilege (LPP)
For businesses operating in the US and EU markets, navigating cross-border legal matters requires more than just expertise—it demands the ability to protect sensitive client communications on both sides of the Atlantic.
An American attorney cannot provide privileged legal advice on European law in Europe under EU rules. To protect client confidentiality and comply with EU law, U.S. attorneys should collaborate with or defer to EEA-qualified counsel when advising on matters governed by European law.
Practical Implications & Increased Costs
Clients seeking comprehensive privilege protection in cross-border matters face increased costs due to these divergences:
- Mandatory Engagement of Additional Lawyers
- Coordination and communication overheads
- Duplicate legal analysis and Work Product.
For a multinational business facing a European regulatory investigation, internal documents and advice must be carefully channeled through EEA-qualified counsel for EU purposes and U.S. counsel for U.S. privilege needs. This not only doubles legal spending but also requires careful planning to maintain privilege in both jurisdictions.
Divergent Legal Standards:
Attorney-client privilege and related protections such as the work product doctrine vary widely between jurisdictions. The US, as a common law jurisdiction, generally offers broad attorney-client privilege, encompassing both in-house and external counsel, and often extends protection to work product. In contrast, many civil law jurisdictions in Europe, including under EU law, provide a narrower scope: privilege typically applies only to communications with external, EEA-qualified lawyers and often excludes in-house counsel
CILC: A Strategic Solution
CILC offers a unique advantage: our attorneys are qualified in both the EU and the US, enabling us to secure legal privilege for clients in both jurisdictions. With CILC, clients benefit from seamless, comprehensive privilege protection in multi-jurisdictional matters—without the complexity of engaging separate legal teams in each region.
Attorney Legal Privilege: Amazon Litigation
Amazon ordered to give the materials to the private consumer plaintiffs
Judge John Chun’s recent ruling underscores the company’s improper designation of business documents as attorney-client privileged, thus enabling private plaintiffs to obtain critical operational materials for their case.
Amazon had improperly classified a range of documents—including operational, business, and strategy papers—as subject to attorney-client privilege or attorney-work product protection. The court ordered Amazon to provide these materials to private consumer plaintiffs, reinforcing judicial scrutiny of privilege claims and supporting transparency in antitrust discovery.
Amazon Cases
Private plaintiff actions—De Coster et al., Brown et al., Hogan, and Frame-Wilson—are proceeding in parallel with the broader FTC and state case against Amazon (FTC et al. v. Amazon). The government case centers on monopolization and anticompetitive conduct under federal law, seeking remedies to reform Amazon’s practices. Private plaintiffs are pursuing damages or injunctions on behalf of consumers, alleging that Amazon’s restrictive agreements caused consumer harm and limited market competition.
Ruling Implications
Judge Chun’s decision demonstrates courts’ willingness to pierce overbroad privilege assertions, facilitating plaintiff access to essential evidence in complex monopoly and anticompetitive conduct cases. It goes without saying that those same documents would almost certainly be disclosable if European antitrust regulators were to investigate Amazon. The European Union’s privilege rules are stricter than the US: only communications with external, independent EU-qualified lawyers for defense purposes are protected, while in-house counsel and business documents do not receive privilege. Therefore, operational, strategic, and mixed-purpose legal documents released under Judge Chun’s order would be subject to review and production if requested by the European Commission or national authorities in an antitrust probe.
Why CILC?
CILC’s integrated business model is centered on attorneys qualified in multiple jurisdictions. This unique approach enables organizations to strengthen privilege compliance and safeguard sensitive communications and documents across borders. Our international attorney network ensures that your organization benefits from expert guidance, tailored legal frameworks, and consistent oversight, no matter where you operate.
Stay ahead of compliance risks. Contact CILC to learn how we can support your organization’s confidentiality needs.
Attorney Legal Privilege: Compliance and Risks in Litigation
A recent US federal court case highlighted the serious risks of improper privilege designation
A judge described the “systemic disregard” of evidentiary rules as “concerning,” noting that a major online platform appeared to be putting “no thought” into marking materials as attorney-client privileged. Such lapses can result in sanctions and reputational harm.
How a Robust Compliance Program Prevents Mistakes
Revamping compliance programs helps organizations address systemic weaknesses and foster a culture of proactive, accurate legal and regulatory adherence. Clear policies, ongoing training, and centralized oversight are essential to ensuring privileged communications are handled correctly.
Strategic Benefits Beyond Avoiding Sanctions
Demonstrating a commitment to proper compliance safeguards a company’s reputation, especially valuable during high-profile litigation or regulatory scrutiny. Operational efficiency and long-term sustainability are further strengthened when compliance is integrated into core business processes.
Why Choose CILC?
CILC’s integrated business model is centered on attorneys qualified in multiple jurisdictions. This unique approach enables organizations to strengthen privilege compliance and safeguard sensitive communications and documents across borders. Our international attorney network ensures that your organization benefits from expert guidance, tailored legal frameworks, and consistent oversight, no matter where you operate.
Stay ahead of compliance risks. Contact CILC to learn how we can support your organization’s confidentiality needs.