Courts have followed two approaches to legal professional privilege between in-house counsel and corporate personnel. Some courts have introduced a ‘control group test,’ which restricts the privilege of contact between in-house counsel and corporate workers who have the authority to control or engage in the legal affairs of the company. Communication from individuals outside the control group is not covered under this strategy. Other courts have introduced the ‘subject matter test,’ which restricts the right of contact by corporate employees for the sole purpose of offering legal advice to the company. Communication with a business-related in-house attorney, as opposed to legal advice, is unlikely to be covered by privilege.
In the landmark case of Upjohn v. United States, the Supreme Court of the United States ruled that, for the purposes of federal law, contact was privileged because it was for the sole purpose of offering legal advice to the company and was within the scope of the corporate obligation of the employee to communicate (449 U.S. 383, 394 (1981)). In Upjohn, contact from low-level staff to general counsel in the form of a confidential questionnaire to learn the nature of any illicit payments was considered to be privileged information.
Some companies opt to waive the right of the attorney-client while they are under government pressure to do so during a criminal investigation. This has been the subject of much discussion, and the US Department of Justice has changed its policy to reduce the burden on companies to waive the right.
In such circumstances, US courts can use a choice-of-law analysis to decide whether domestic or foreign law regulates the issue of privilege. Otherwise, the applicable international law on professional privilege would be enforced by the court. Federal and state courts have different approaches to the choice-of-law review.
In federal courts, pursuant to Section 501 of the Federal Rules of Proof, federal common law provides for the right of the attorney-client to allow the courts the flexibility to create rules regulating professional rights on a case-by-case basis. If the federal court finds that domestic law can apply, the US principle of client privilege covers communications with non-national skilled attorneys.
Many federal courts use the ‘touch base’ approach to assess if contact with non-national accredited attorneys is privileged. Under this fact-specific study, ‘any contact with the United States will be regulated by federal discovery laws,’ including the right of the attorney-client (Duplan Corp. v. Deering Milliken, Inc., 397 F. Supp. 1146, 1169 (D.S.C. 1974)). This is the
Southern District of New York recently applied the ‘touch base’ approach to a trademark infringement case and found that even contact between a US client and a non-national representative of a non-national attorney was privileged under US law (Gucci America, Inc. v. Guess?, Inc., 271 F.R.D. 58 (S.D.N.Y. 23 September 2010)).
At the level of the state court, courts appear to follow one of the two methods in deciding whether communication with non-national accredited attorneys is privileged. A minority of States (including Nevada, Connecticut and Virginia) apply the ‘territorial method’ in which the legal professional privilege rules of the Platform State are enforced by the courts. On the other hand, most states (including California, Delaware, Florida, Illinois, Maryland, New York and Texas) apply the ‘most significant relationship’ test in which courts apply the legal professional privilege laws of jurisdiction that have the ‘most significant relationship’ to contact, unless admission is contrary to public policy. Consequently, if the ‘most important relationship’ with the communication is found to be a foreign jurisdiction, and if such jurisdiction does not cover such communication (e.g. because the attorney was an in-house counsel), the law of the foreign jurisdiction shall rule.
A few states that implement the ‘most significant relationship’ test, including California, Delaware, Florida and Texas, have narrowly specified ‘attorneys’ to include all licensed attorneys so that legal professional privilege applies to communication with non-national accredited attorneys.
In those States, if the State court finds that its own jurisdiction has the ‘most important relationship’ with the contact in question, it is clear that the right of the attorney-client applies, regardless of the nationality of the licensed attorney.
In other jurisdictions, whether the court decides that its own laws apply, either on the basis of the ‘territorial approach’ or the ‘most important relationship’ test, the decision to protect communication with a non-national attorney will depend on the laws of that particular state and the outcomes which differ.