In this episode of our Cross-Border Catch-Up podcast series, Maya Barba (San Francisco) and Kristyn Lambert (New Orleans) break down a commonly misunderstood risk for global employers: attorney-client privilege doesn’t operate across borders as most companies assume. From the U.S. baseline to recent legislative developments in France and Switzerland, the speakers walk through how different legal systems protect—or fail to protect—in-house counsel communications. Tune in for practical takeaways on how multinational teams can identify their privilege gaps and safeguard confidential legal advice worldwide.
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Cross-Border Catch-Up: Attorney-Client Privilege Considerations Across Borders
By Maya B. Barba and Kristyn L. Lambert
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Kristyn Lambert: Welcome to the Cross-Border Catch-Up, the podcast for global employers who want to stay in the know about cutting edge employment issues worldwide. My name is Kristyn Lambert, and I’m here with my colleague, Maya Barba. Today, we’re tackling a topic that comes up constantly in our cross-border practice, attorney-client privilege, and specifically whether in-house counsel communications are protected when you’re operating across multiple jurisdictions. Maya, this is a big one.
Maya Barba: It really is. And it’s one of those areas where companies tend to assume the rules are consistent globally, and that is not the case. I’d say at a high level, most legal systems recognize that communications between a lawyer and a client should be protected in some way. But how that protection is defined, who it applies to, and when it applies can vary pretty significantly depending on the jurisdiction.
Kristyn Lambert: Okay. So, let’s kind of start with the basics, right? What are we talking about when we say privilege?
Maya Barba: At its core, from a U.S. perspective, attorney-client privilege protects confidential communications between a lawyer and a client made for the purpose of seeking or providing legal advice. It’s a very textbook lawyerly definition, but attorney-client privilege is one of the oldest recognized legal protections. And the rationale is pretty straightforward. Clients need to be able to speak candidly with their lawyers so the lawyers can give fully informed advice.
Kristyn Lambert: Right.
Maya Barba: In the U.S., there’s a few key elements. The communication must be confidential, it must involve a lawyer acting in a legal capacity, and it must be for legal advice. But, and this is where it becomes important for cross-border teams, those same elements don’t get applied the same way in every country.
Kristyn Lambert: Okay. So legal advice, not business advice, in contrast to business advice. So, you brought up the U.S. Let’s anchor this in the U.S. first. What does that look like for in-house teams in terms of the privilege definition and application in the U.S.?
Maya Barba: So, in the U.S., the framework is well-developed and it’s what most of our U.S. clients and U.S.-based companies are used to. Privilege generally applies to communications between in-house counsel and internal stakeholders, as long as a lawyer is acting in a legal capacity. So, if your in-house lawyer is advising on risk, compliance, litigation exposure, those will all typically be protected. Where it gets trickier is when the roles start to blur. If the same lawyer is also giving business or strategic advice, courts may separate those communications and only protect legal portions.
Another key point, especially for global teams, is licensure. In the U.S., U.S. courts will look closely at whether the person is actually functioning as a lawyer. An active bar license is a big part of that. A U.S. JD alone typically is not enough. You generally need to be licensed somewhere. That said, the lawyer doesn’t need to be licensed in the specific U.S. state where the advice is given, and U.S. courts may still recognize privilege for communications with foreign qualified lawyers, including in-house counsel, particularly when the individual is authorized to practice in some capacity.
So for example, some states allow foreign lawyers to register as in-house counsel. Where that framework exists and the individual properly qualifies and registers, courts are less likely to treat the lack of a full local bar admission as something that can defeat the privilege. But again, this is very fact specific. It can be state-specific as well. If the individual is not licensed anywhere or is not authorized to provide legal services in the relevant jurisdiction, then that’s where the real risk comes up that the communication won’t be treated as privileged at all.
Kristyn Lambert: Okay. So, we’ve kind of covered the U.S. baseline. How does the U.S.’s framework compare to what we see in other non-U.S. systems?
Maya Barba: So, this is where the distinction between common law and civil law systems becomes really important. In common law jurisdictions like the U.S., the UK, Canada, and others, generally speaking, privilege is framed as a right of the client. The client can assert it, can waive it, and can use it to block disclosure, and it’s an evidentiary rule. Critically, in many common law countries, in-house counsel are not treated as a separate category of lawyer. They’re typically members of the relevant bar and subject to the same professional and ethical obligations as external counsel. That said, even in common law jurisdictions, the scope of protection for in-house counsel can vary quite a bit.
Not all internal communications with in-house lawyers will be privileged. The lawyer must be acting in a legal capacity. And in some jurisdictions, particularly in the UK, courts take a fairly narrow view of what qualifies as legal advice and who counts as the client. Similar issues can arise in Canada, especially where legal and business advice are mixed together. So that’s common law. In contrast, in civil law jurisdictions like France, Switzerland, the Netherlands, the concept is a little bit different. It’s framed as professional secrecy. It is a broader ethical duty compared to the narrow evidentiary rule that is attorney-client privilege.
Professional secrecy is an obligation on the lawyer, and in some cases a right, to keep the client’s information confidential. Professional secrecy can be invoked to protect information held by a lawyer and sometimes material held by other professionals like tax advisors, but it does not always extend to in-house counsel in the way that privilege does in common law systems.
Kristyn Lambert: Okay. So, the distinction that we’re kind of seeing here is that we’re starting from a different premise in terms of who has the right or obligation to maintain the confidentiality.
Maya Barba: Exactly. And once you layer in country specific rules, it gets even more fragmented and the protection for in-house counsel varies significantly by country.
Kristyn Lambert: So, let’s walk through a few of those. What are some of the most useful examples?
Maya Barba: So, we’ve talked about the U.S., and let’s provide a contrasting example. I’ll start with Switzerland because the rules are quite distinct from what U.S. lawyers expect. Historically, there was no privilege for in-house counsel in Switzerland. They were considered captive to their employer, but as of January of 2025, Swiss law provides limited protections for in-house counsel’s legal work in civil proceedings, but that’s narrower than U.S. privilege, and it doesn’t extend to criminal or administrative matters. For foreign attorneys registered in Switzerland, privilege only attaches to what the attorney holds. Once advice is sent to the client in writing, it’s discoverable on the client’s side. That’s why Swiss attorneys often advise orally.
Kristyn Lambert: That is so interesting and such a dramatic departure from the U.S. framework. So, are there any practical safeguards in a scenario like that?
Maya Barba: I’d say generally speaking, more thinking about Switzerland in comparison to the U.S., is that Swiss courts typically don’t allow broad discovery, especially compared to what we see in the U.S. So, to get a document, you need to identify it with particularity and convince the court that it’s absolutely essential. So, the same kind of discovery fishing expeditions that we see in the U.S. are rare, but the legal framework is still something that global employers need to consider and to plan around.
Kristyn Lambert: Understood. Okay. Well, let’s turn to France because there’s been a significant development there recently.
Maya Barba: Yes. So, France enacted legislation in 2026, this year, introducing confidentiality protections for written legal consultations by in-house counsel. For decades, French in-house lawyers didn’t have privilege. So, French companies were what we would maybe call a competitive disadvantage. They had to engage outside counsel to preserve confidentiality. This new framework doesn’t cover criminal or tax matters, and it’s a statutory regime rather than full U.S.-style privilege, but it’s a significant expansion for commercial and civil matters.
To be eligible for this privilege, the in-house counsel must have certain qualifications, master’s of law or an equivalent foreign degree, or there’s other educational and experiential requirements. And this law isn’t actually implemented yet and it’ll take effect after an implementing decree, but it’s a very interesting and topical development.
Kristyn Lambert: And I agree. And I think it’s really interesting because we’re not only seeing how these non-U.S. jurisdictions differ from our U.S. framework, but we’re also seeing distinctions among the non-U.S. jurisdictions. And so, I’d like us to talk about the Netherlands next because it’s had its own evolution on this issue.
Maya Barba: Yes. In recent years, there’s been movement on this. And generally speaking, in the Netherlands, in-house counsel are covered by privilege, but only if they’re admitted to the Netherlands bar and operate under a formal framework that guarantees their professional independence from the company. Foreign qualified in-house lawyers who are not admitted in the Netherlands and individuals who are not actively licensed are treated as ordinary employees for privilege purposes.
Kristyn Lambert: So, Maya, it seems to me kind of discussing these different examples that the only really consistent thing is that the answer is always conditional and very fact specific. Do you agree?
Maya Barba: Absolutely. So, the analysis goes beyond whether something is legal advice and you really have to consider where the advice is given, by whom and under what framework. And that’s where cross-border teams can run into trouble.
Kristyn Lambert: Sure. So, let’s talk about how this plays out in practice, especially when you have cross-border teams.
Maya Barba: So, a lot of U.S. companies assume that if something is privileged under U.S. law, that protection carries through globally, but U.S. courts won’t automatically apply U.S. privilege rules to cross-border communications. Courts often look at what country the communication is most connected to, it’s known as a touch base analysis, and then apply that country’s privilege or confidentiality rules.
Kristyn Lambert: I think that’s such an important point and one that a lot of people, in-house lawyers and practicing attorneys even are surprised by, right? That you can be involved in U.S. litigation, but applying non-U.S. privilege law.
Maya Barba: Exactly. So, by way of example, let’s say your head of North America legal is licensed abroad, not admitted to the U.S. bar, and is giving advice. Is their advice privileged? That’s a question that we’ve gotten recently. And the short answer is it depends. As I mentioned, U.S. courts often apply what’s called a touch base test. They ask which country does this communication most closely relate to? If that head of legal is advising on U.S. law, and they’re licensed somewhere and that communication is confidential, looking at it through a U.S. lens, this would likely be covered by attorney-client privilege. But if the head of legal is not advising on U.S. law, is instead advising on the laws of a different country, then the court may apply that country’s rule instead. And, as we’ve talked about, not every jurisdiction recognizes in-house privilege, especially in the way that we expect in the U.S.
Kristyn Lambert: So, it can be a little dicier than I think it may be expected. So, what should companies be taking away from this discussion? Maya, we’ve talked about how it is a very fact specific, very jurisdiction specific scenario or considerations. What can companies do to make sure that they’re preserving privilege the best that they can?
Maya Barba: I think just keep in mind this kind of central theme that a privilege, especially as we understand it in the U.S., is not portable. Companies need to map where their lawyers sit, what protections actually apply in each jurisdiction and note where those gaps are. This might mean ensuring active bar membership, involving external counsel strategically, or structuring communications more carefully.
Kristyn Lambert: I think that this conversation has been a very good reminder that something very routine in the U.S. can look very different elsewhere, which you and I are familiar with as cross-border attorneys. So that’s all the time we have for today’s episode. Thank you very much for joining us for this edition of Cross-Border Catch-Up. Please be sure to follow us to stay in the know about cutting edge employment issues worldwide.
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