Attorney Legal Privilege Challenges for Multinational Business in Global Litigation

The divergences in the transatlantic framework for the Legal Professional Privilege (LPP)

The divergence between US, UK, and EU legal professional privilege (LPP) frameworks creates significant risks for multinational businesses. 

Communication with US Attorneys, both external and in-house counsel, for the purpose of seeking or providing legal advice under EU law is not privileged in the EU. 

This lack of privilege for US in-house counsel and external attorneys creates a significant vulnerability for multinational corporations, and it requires careful strategic planning to navigate privilege issues in a globalized legal landscape.

This also has implications in the US because US courts apply the "touch base" or "predominant interest" test, meaning that US courts will not automatically apply US attorney-client privilege law to all communications involving US attorneys, particularly when those communications are closely connected to the EU.

Key differences and strategies to mitigate exposure are outlined below.

Why Privilege Gaps Occur: Differences in Privilege Doctrines

- Scope: US/UK protects communications with external and in-house counsel; EU protection is limited to written communications with EEA-qualified external counsel

- Work Product Doctrine: US/UK protects materials prepared in anticipation of litigation (e.g., witness memos);  the EU has no equivalent protection, only legal advice from an EEA-qualified external counsel are privileged

- In-House Counsel: in the US/UK it is privileged if providing legal advice; in the EU it is explicitly excluded

Practical Risks for Multinational Organizations

- Loss of Privilege: sensitive communications may be discoverable in foreign proceedings if not protected by local law, exposing organizations to regulatory, civil, or criminal risks

- Increased cross-border regulatory cooperation and information sharing raise the stakes for maintaining privilege integrity

EU Perspective: If a document created in the U.S. is protected by U.S. attorney-client privilege or work product doctrine, but is then disclosed in an EU proceeding (such as to the European Commission), the EU authority will apply its own LPP rules. As seen EU LPP is much narrower: it generally protects only legal advice from independent, EEA-qualified external counsel, and does not protect communications with in-house counsel or non-EEA lawyers. If the document is not protected under EU LPP, the Commission may seize, review, and use it in its investigation, and it may become part of the investigative record.

U.S. Perspective: when that same document later surfaces in U.S. litigation, a U.S. court will typically apply the "touch base" or "predominant interest" test to determine which country's privilege law governs the document. If the document was disclosed to an EU regulator and the EU did not recognize it as privileged (for example, because it involved in-house counsel or non-EEA lawyers), U.S. courts may find that privilege has been waived—even for subsequent U.S. proceedings. The rationale is that once confidentiality is breached and the document is in the hands of a third party (here, the EU authority), the core protection of the privilege is lost.

How to Bridge the Privilege Gap: Strategies to Mitigate Risk

Strategic Solutions

• Integrated Multi-Jurisdictional Legal Teams: Engage counsel qualified in all relevant jurisdictions to ensure that privilege is maintained under each applicable legal regime. This is especially important for cross-border investigations, internal reviews, and regulatory matters
• Segregate Communications: Structure communications to clearly separate legal advice by jurisdiction and by the lawyer’s qualification. Avoid mixing legal and business advice in the same correspondence
• Adopt the Narrowest Standard: When in doubt, design communications to meet the strictest privilege requirements among the relevant jurisdictions, such as using the EU’s narrower standards as a baseline
• Confidentiality Protocols: Implement robust confidentiality measures—such as encryption, access controls, and clear privilege markings—to safeguard privileged materials across borders
  
  

This approach is critical to minimizing the risk of a global privilege waiver in cross-border matters.

CILC’s Integrated Approach

CILC addresses these challenges by bringing together U.S. and EU-qualified legal experts on a single, integrated platform. This allows clients to:

• Protect Privileged Communications: CILC’s attorney-centric model ensures that legal advice is provided by lawyers qualified in all relevant jurisdictions, maximizing the likelihood that privilege will be recognized and upheld
• Streamline Cross-Border Legal Work: Clients can access coordinated legal services without the need to hire separate legal teams or work with multiple offices, reducing costs and complexity
• Leverage Technology: CILC uses advanced AI-driven tools within a secure digital environment to enhance efficiency and safeguard sensitive information

Conclusion

Navigating transatlantic privilege rules requires proactive planning, jurisdictional awareness, and collaboration with attorneys qualified in both the U.S. and EU.

Action Steps for Multinational Businesses

• Assess Privilege Risks: Map out where your sensitive legal communications are created, stored, and shared.
• Engage Multi-Qualified Counsel: Use platforms or firms that can provide advice under all relevant legal systems.
• Educate Internal Teams: Train employees and in-house counsel on privilege pitfalls and best practices for cross-border matters.
• Review and Update Policies: Regularly update internal protocols to reflect evolving privilege rules in key jurisdictions.

Attorney-client privilege is not a universal shield. Multinational organizations must proactively manage privilege risks by engaging multi-qualified legal counsel, structuring communications carefully, and leveraging integrated platforms like CILC to protect their most sensitive information across borders