Today, April 16, 2026, Francesca Giannoni-Crystal presented a CLE on how U.S. courts approach attorney–client privilege in cross-border and international contexts, focusing on a question that has become increasingly difficult in modern practice: which law governs privilege?
Cross-border legal work has made privilege significantly less predictable. Communications often span multiple jurisdictions, involve foreign counsel, and may later be scrutinized in U.S. litigation. In that setting, privilege, confidentiality, and work product must be carefully distinguished. Confidentiality is an ethical duty, while work product is generally governed by the law of the forum. Privilege, however, does not follow a single, uniform choice-of-law rule.
This creates a structural risk. U.S. privilege is broad and tied to discovery, whereas many foreign systems provide narrower protection, particularly for in-house counsel. As a result, the same communication may be protected in one jurisdiction and discoverable in another.
U.S. courts have developed multiple competing approaches to address this issue. Under a lex fori approach, courts apply the law of the forum, treating privilege as a procedural matter; this offers predictability but may overlook foreign legal frameworks. The Restatement (Second) § 139 introduces a balancing test, generally favoring the law of the jurisdiction with the most significant relationship to the communication, while allowing the forum to override that law when strong policy interests are at stake. Closely related, the “most significant relationship” or “center of gravity” approach seeks to identify the jurisdiction with the closest connection to the communication, although this can be difficult to determine in a multinational, digital environment.
The “touch base” approach focuses on whether the communication has a meaningful connection to the United States. Courts ask whether the communication “touches base” with the U.S.—that is, whether its connection to a U.S. legal matter or proceeding is more than incidental. If so, U.S. privilege law is typically applied; if the connection is predominantly foreign, foreign privilege law may apply. The “law of the decision” approach ties privilege to the law governing the underlying claim, although it is less frequently determinative because privilege serves evidentiary and institutional functions distinct from substantive law. Finally, comity-based approaches, including variants of “reverse comity,” seek to account for foreign interests, sometimes applying U.S. privilege law to avoid unfair disclosure where foreign systems lack comparable protections.
Each of these frameworks attempts to anchor the analysis in a particular jurisdiction. Yet modern legal practice is fundamentally delocalized, making these localization exercises increasingly artificial. The result is complexity, higher costs, and a meaningful risk that privilege will not be recognized.
A simpler approach can be framed through a modified lex fori analysis guided by Occam’s Razor. The inquiry becomes whether the communication would be privileged under the law of the forum. If so, it should be protected, while also recognizing foreign lawyers who perform functions equivalent to U.S. counsel. This approach reduces doctrinal complexity and avoids the need for uncertain foreign-law analysis, while promoting more predictable outcomes.
At present, courts have not adopted this framework. As a result, privilege must be managed proactively. Communications should be clearly structured as legal advice, business and legal discussions should be kept distinct, circulation should be limited, and particular caution should be exercised when foreign in-house counsel are involved. In many cases, involving U.S. counsel can help anchor privilege analysis more securely.
