IN-HOUSE COUNSEL AND PRIVILEGE ISSUES. B. John Pendleton, Jr. DLA Piper LLP (US) 21 September 2012

Transcription

1 IN-HOUSE COUNSEL AND PRIVILEGE ISSUES B. John Pendleton, Jr. DLA Piper LLP (US) 21 September 2012

2 Objective The goal of the company is to take maximum advantage of the attorneyclient privilege and related privileges This can become complicated when you are involved in matters in different jurisdictions both in and outside the United States 21 September

3 Basic Principles Elements of the attorney-client privilege 1. A client 2. A lawyer 3. Communication between them 4. Made in confidence 5. For the purpose of seeking legal advice 21 September

4 Work Product The work product doctrine Protects disclosure of the lawyer s work and mental impressions that have been prepared in anticipation of litigation 21 September

5 In-house Counsel The application of these privileges to corporate counsel is a fairly recent development 1. Concern about establishing a zone of secrecy that is not warranted 2. Need to balance concern against importance in protecting attorney-client relationship 21 September

6 Critical Issues Who is the client for the purposes of the privilege When and how does the privilege apply to in-house counsel What falls within and outside the privilege 21 September

7 Critical Issues, cont. What steps are required to ensure that the communication is undertaken in confidence What constitutes waiver of the privilege Under what circumstances is the lawyer not bound by the privilege 21 September

8 Special Issues for Work Product Distinction between the lawyer s work and mental impressions When work of third parties is protected Is the mere prospect of litigation sufficient What if work product is for a dual purpose 21 September

9 UK and Europe Different legal systems across Europe: UK, Ireland, Cyprus,Gibraltar and Malta: Common Law Accusatorial process in civil court cases include disclosure/discovery of documents analogous to, but not as extensive as, US litigation Processes in arbitration including discovery usually more restricted/informal than in litigation Other European jurisdictions: Civil Law Inquisitorial process and more limited rules on discovery or no formal discovery process at all Dollar Financial Inc September January

10 European Union The legal structure of Europe is highly relevant to an understanding of privilege issues Choice of law and jurisdiction provisions in a contract not conclusive Brussels Regulation on Enforcement of Judgments requires a court presented with a dispute first determine issues of jurisdiction A court may determine that relevant terms and conditions were not included in a contract and hence no binding choice of jurisdiction Such conclusion gives a claimant a freestanding right of action outside any contractual provision Courts will always try to allow litigants who are private consumers to get redress in their home jurisdiction Dollar Financial Inc September January

11 European Union, cont. The European Commission has direct regulatory and investigatory powers in a range of areas - notably but not exclusively competition law The Commission also promotes other regulations and laws for the administration of the European Union which are to be enforced at a domestic level within each Member State Although each Member State must adopt European law, each Member State then has autonomy in terms of procedural matters as to how the law is enforced within its jurisdiction Dollar Financial Inc September January

12 European Union, cont. There may be differences between Member States as to what are procedural v. substantive legal issues. This conflict can cloud the legal position around issues like the scope and nature of legal privilege which can vary radically from state to state The result is that the legal framework for any multinational corporation that does business with consumers across Europe in a highly regulated sector such as consumer credit can be both complex and sensitive Issues of legal privilege must be assessed in the context of the type of regulatory issues and disputes it will face jurisdiction by jurisdiction where it does business Dollar Financial Inc September January

13 Legal Privilege United Kingdom Scope of Legal Privilege in English Law Two broad categories of privilege in English law: Legal Advice Privilege Litigation Privilege Joint Privilege and Common Interest Privilege may also arise in a Corporate Group context (designed to recognize when privilege should extend to third parties) Dollar Financial Inc September January

14 UK - Legal Advice Privilege Scope of Legal Advice Privilege under English law Attaches to "legal" advice given by a lawyer to a client usually in a non-contentious setting. The advice must be "legal" in nature applies to documents requesting or memorializing internal legal advice applies to any attempt to require witness to testify on the substance of advice received Not privileged: commercial advice, advice on negotiating tactics or a discussion on operational business issues with in-house counsel advice from non-lawyers even if "legal" in substance documents produced by third parties such as accountants or external consultants to facilitate the giving of legal advice Dollar Financial Inc September January

15 UK - Legal Advice Privilege, cont. Practical in-house considerations under English law Board minutes and other internal documents recording or discussing the need for legal advice or advice received/implementation of advice will be privileged Copies of advice or legal instructions created for any purpose unrelated to the original giving of advice will not be privileged Considerable care is required if legal advice is communicated internally beyond those individuals who need to receive the advice for the original purpose For example, copying s to internal third parties on a broad basis creates a considerable risk of privilege waiver Once privilege in one document is waived, there is a risk that privilege in all documents in the same class or category will have been waived as well Dollar Financial Inc September January

16 UK - Legal Advice Privilege, cont. Documents may contain both privileged and un-privileged material Hybrid documents may be redacted Best internal governance practice suggests that separate board and other papers are created and clearly marked that they are covered by legal privilege Separate minutes should be kept of those sections of board or management meetings discussing privileged material Advice from Group Legal Counsel, employed at parent company, to subsidiary companies will be protected by privilege, subject to requirement that they are duly qualified and accredited lawyers in their home jurisdiction Advice on foreign law has same privilege in an English Court as English legal advice Dollar Financial Corp September January

17 UK - Waiver of Privilege Privilege cannot be invoked to cloak obvious or deliberate wrongdoing. If regulators can show that in-house counsel have been used to try to conceal evidence of deliberate wrong-doing then privilege will not apply However, privilege does apply where in-house counsel, in good faith: Provides advice before action is taken that certain steps might be unlawful Provides advice after the event as to the legality of past actions Dollar Financial Inc September January

18 UK - Foreign Proceedings The rules on Legal Privilege apply in any application to an English Court to aid discovery in a foreign proceeding, even if the rules of the foreign court would not recognize the existence of the privilege However, if the foreign court can compel full disclosure within its jurisdiction, this would not be barred by the English courts Dollar Financial Inc September January

19 UK - Litigation Privilege Litigation Privilege attaches to any documents created for the sole or predominant purpose of furthering a legal dispute Does not matter who prepares the documents Does not apply to documents created before a dispute is contemplated Does apply to internal reports discussing a dispute and documents produced by third party experts for that purpose Documents held by third parties such as accountants created for a dispute will be privileged and disclosure cannot be compelled Dollar Financial Inc September January

20 UK - Litigation Privilege Waiver Under English law, material risk of waiver of privilege if documents are disclosed internally to discuss improving internal procedures for the future (supports an ancillary purpose and is not privileged) Disclosure to auditors is high risk - the legal assessment of a dispute is unlikely to be privileged in their hands Disclosure to insurers is usually priviledged as they have a direct interest in the dispute ( common interest privilege) Disclosure to regulators may be high risk even if deemed confidential (third party may attempt disclosure using either Freedom of Information laws or a witness summons) Dollar Financial Inc September January

21 Practical Issues for In-house Counsel IT systems in a Group context IT systems are often configured on a Group wide basis without regard for separate legal identity of individual subsidiary companies If a parent company has the "power" to access the internal documents of a subsidiary, English law will consider such documents to be disclosable by the parent company even though they were created solely for the internal purposes of the subsidiary company Potential risk of waiver of privilege Issue not yet tested before the English Courts in the context of electronic discovery Dollar Financial Inc September January

22 UK - Regulatory Action English regulators must respect legal advice privilege and may have to respect litigation privilege connected to the substance of an investigation. When regulators seek to compel disclosure of documents, it is vital that a claim of privilege is asserted immediately or the regulator may claim that privilege has been waived. All potentially privileged documents should be held separately and should not be accessed by the regulator. If the privileged status of the documents is disputed, the issue should be resolved by an independent counsel appointed for that purpose or referred to the courts. Dollar Financial Inc September January

23 The European Position To attract legal privilege advice must be given by an "independent" lawyer who is accredited in a Member State. In many jurisdictions, in-house counsel not considered sufficiently independent since directly employed by their client No internal legal advice from in-house counsel on competition matters or other matters subject to investigation at a European level will be privileged Advice from US based in-house counsel employed by a US parent company would not be privileged assuming the European regulators could access the relevant documents or otherwise compel disclosure Dollar Financial Inc September January

24 Interaction between European and Domestic Proceedings in England Position is complicated if a competition authority is conducting concurrent investigations or domestic legal proceedings follow a European level inquiry European Commission has the power to release information it holds as a result of a regulatory inquiry. The Commission must consult the owner of the information before disclosing it Case law requires Commission to consider issues of legal privilege. Currently unclear whether Commission will only respect the more limited legal privilege it recognizes in its own investigations or whether the Commission should recognize that documents it holds might still be subject to a lawful privilege claim in domestic courts Dollar Financial Inc September January

25 Interaction between European and Domestic Proceedings, cont. Unclear under English law whether, even if released to a potential claimant, documents that would otherwise be privileged in English proceedings would be admissible in evidence Documents released voluntarily to the Commission would be subject to a waiver of privilege but privilege in documents seized by the Commission on a mandatory basis could not be said to be waived Dollar Financial Inc September January

26 Legal Privilege - Romania Professional Secrecy covers 1. All information and data of any kind and in any form 2. Provided to the lawyer by the client in order to obtain legal assistance 3. Client requests information be kept secret 4. Documents drafted by lawyer which are based in whole or part on information provided by client 21 September

27 Romania, cont. Documents covered by professional secrecy cannot be used as evidence in a proceeding Lawyer has obligation to oppose search for privileged documents in his or her office Foreign lawyers are bound by requirements Lawyers violating professional secrecy requirements could be subject to criminal sanctions 21 September

28 Legal Privilege - Spain Legal Privilege exists in Spain It applies to any spoken or written communications between a lawyer, including a non-national lawyer, and a client in an attorneyclient relationship THE PRIVILEGE DOES NOT APPLY TO IN- HOUSE COUNSEL Even so, in-house counsel should take steps to protect documents in his or her custody by marking them and maintaining them separately 21 September

29 Spain, cont. Professional secrecy privilege applies to inhouse counsel unless excepted by law Requirement of reporting information on money laundering and terrorism is an exception 21 September

30 Legal Privilege - Finland Legal Privilege: Lawyer or his assistant shall not, without due permission, disclose the secrets of a client Legal Privilege is not tied to membership in the Finnish Bar, but to status as a legal advisor. Legal Privilege covers advocates, attorneys, counsels and their assistants (interpreted to cover the whole staff of the lawyer s office). Legal Privilege is not tied to the nationality of counsel. THE PRIVILEGE DOES NOT APPLY TO IN-HOUSE COUNSEL. Legal Privilege is based on the attorney's independence; an in-house lawyer cannot be considered to be separate from the employer. 21 September

31 Finland, cont. Correspondence between a lawyer and client is confidential if the material is relevant to the client s right of defense and the legal advisor is independent, i.e. not an employee to the client. Legal Privilege covers all correspondence between an independent lawyer and a client in relation to a specific case, both before and after proceedings commence, provided there is a direct relation to the case. Legal Privilege does not protect documents containing business or trade secrets. Exceptions to Legal Privilege: Waiver by client; disclosure of serious threats against an individual or society; or the lawyer s need to defend himself against accusations. 21 September

32 Discussion Exercise After signing a purchase agreement for a target company and before regulatory approval is obtained, client has growing concerns about the accuracy of projections by the target. Internal assessments are made of target s actual performance numbers following signing against projections for same period and a decision is made to terminate agreement. Senior management works with other members of the business team, together with external consultants, to document the analysis of the target s performance. In-house counsel then has conversations with management and business team employees and consultants about the reports that were prepared. Inhouse counsel is asked both to provide advice on whether there is a basis to terminate agreement and whether it is prudent to go forward as a matter of business judgment. It is contemplated that in discussions with management of the acquired company, some information will be shared with them to support the decision to terminate the agreement. 21 September