Differences in the Application of the Attorney-Client Privilege in Different Jurisdictions and the Impact on Global Internal Investigations

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By David W. Simon & John E. Turlais, Foley & Lardner LLP
Sherbir Panag, Law Offices of Panag & Babu
David Rieks and Andreas Mueller, Roxin

One of the critical issues we plan to discuss in our October 15 workshop, “Responding to Globalized Law Enforcement in Transnational Bribery:  A German, Indian, and U.S. Perspective,” is the application of the attorney-client privilege in different jurisdictions and how those differences can impact global internal investigations.  Below we summarize the law of attorney-client privilege in the context of internal investigations in our respective countries: the U.S., India and Germany.

UNITED STATES

David W. Simon and John E. Turlais, Foley & Lardner LLP

Under U.S. law, the attorney-client privilege applies equally to corporations and individuals.  U.S. law also does not differentiate between legal advice provided by in-house counsel and by outside counsel – communications with both are protected under the attorney-client privilege.  In the seminal case of Upjohn Co. v. United States and, more recently, in In re: Kellogg Brown & Root, Inc., U.S. courts have confirmed that the attorney-client privilege protects fact-finding by attorneys and their delegates in the context of corporate internal investigations.

To maximize the likelihood that the privilege will apply to a corporate investigation under US law, we recommend the following:

  • Issue a delegation memorandum. Before commencing an internal investigation, the corporate client should issue a delegation memorandum to the investigating attorneys.  The purpose of a delegation memo is to memorialize that the corporate client is requesting the attorneys to conduct a privileged internal investigation to learn facts and to assess allegations for the purpose of providing legal guidance to the client.  In particular, a delegation memo is recommended for investigations led by in-house counsel whose job responsibilities may include providing business advice (non-privileged) as well as legal guidance (privileged).
  • Give Upjohn Warnings. Before each investigative interview, attorneys should give witnesses what is commonly known as an Upjohn  An Upjohn warning informs the witness that:  (i) the attorney represents the company and not the witness personally; (ii) the attorney is collecting facts for the purpose of providing legal advice to the company; (iii) the interview is protected by the attorney-client privilege, which belongs exclusively to the company and not the employee witness; (iv) the company may choose to waive the privilege and disclose the discussion to a third party; and (v) the discussion must be kept confidential and should not be disclosed to any third party other than the witness’ personal counsel.

INDIA

Sherbir Panag, Law Offices of Panag & Babu

The Indian Evidence Act, 1872, recognizes and affords privileged status to communications between attorneys (advocates) and their clients.  A corresponding obligation is also cast on attorneys not to reveal privileged communications under the Bar Council of India rules.

It is important to highlight, however, that the Supreme Court of India has ruled that communications between company officers and in-house counsel are not protected by the attorney–client privilege, as in–house counsel cease to be practicing advocates (as envisaged under the Advocates Act, 1961) and are instead employees of the body corporate.  Moreover, at present, foreign lawyers are not entitled to practice in India, and, accordingly, are not recognized as advocates subject to the privilege protections.

Thus, for an internal investigation to be covered by attorney–client privilege in India, it is imperative that any such investigation be conducted by, or under direction of, an advocate who is duly enrolled with the Bar Council of India.  It is further advisable to put in place a formal engagement letter with the advocate and to specifically mark all communications and work product as “Privileged and Confidential/Advocate–Client Privilege,” while also highlighting the same when conducting interviews.

Given that the Indian legal system does not recognize deferred prosecution agreements, non-prosecution agreements, or declinations and does not provide self-disclosure credit (all of which are regularly done in the U.S. legal system), the privilege becomes critically important in India.  If an internal investigation was conducted solely by an in-house attorney, the findings and guidance could be sought by law enforcement and could even become prosecutable evidence.

GERMANY

David Rieks and Andreas Mueller, Roxin

The relationship between an accused client and its defense lawyer is under specific protection within the German criminal procedural law.  Law enforcement authorities are generally not entitled to seize any documentation originating from this relation.  Searches with the objective of seizing such documentation are therefore prohibited.

Even though this protection is a fundamental principle, the extent of its application to corporate clients remains unclear because German criminal law does not apply criminal liability to legal entities. This uncertainty has resulted in inconsistent approaches being taken by different authorities. While some prosecution offices are granting extensive protection – at least for external counsel for purposes of building a defense strategy – other offices have occasionally conducted searches at law firms to seize documentation on internal investigations.

Authorities taking a narrower view of the attorney/client protection contend that such searches of law firms are consistent with a traditional understanding of criminal defense.  That is, an internal investigation is not considered a traditional element of the criminal defense process, and, therefore, should not be afforded protection.

A recent and prominent example of such a search is the dawn raid at Jones Day, initiated by the Munich Public Prosecutor.  The objective of this search was to seize documentation relating to the “Diesel-gate” investigation involving Volkswagen.  Volkswagen has appealed to the Federal Constitutional Court of Germany, and, by means of a temporary injunction, the Court suspended the evaluation of the seized documents until it could consider the legitimacy of the search.  Although a final decision has yet to be issued, we interpret the intervention by the Court as possibly signaling a wider scope of protection for attorney-client communications.

For the time being, corporations should ensure that internal investigations in Germany are conducted by, or at least coordinated by, criminal defense lawyers.  The combination of an internal investigation and a power-of-attorney including criminal defense increases the chances of protection under the criminal client-attorney-privilege.

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