U.S. Law of Attorney-Client Privilege as Applied to Non-U.S. Lawyers: A Reciprocity Issue?
Part I of this note considers whether U.S. federal and state law applies the attorney-client privilege equally to communications with U.S. and non-U.S. attorneys. It concludes that, contrary to the ILP’s position, the law on this issue is not firm. In light of the policy issues raised by the AM & S decision, part II considers factors that may justify discriminating between U.S. and non-U.S. lawyers, or among non-U.S. lawyers. It concludes that the public interest may be served best by extending the attorney-client privilege to communications with some, but not all, non-U.S. lawyers. Part III presents a proposal for defining the scope of the privilege. The proposal takes into account traditional policies justifying the privilege, while acknowledging and suggesting ways of dealing with new issues arising as practice by foreign attorneys in the United States increases.