1. Association of Corporate Counsel © 2015
Global Law
Association of Corporate Counsel
© 2015
The information contained in these materials should not be construed as legal advice or legal opinion on specific facts, and should not be considered representative of the views of ACC or any of its lawyers, unless so stated. The information contained in these materials is not intended to be a definitive statement on the subject but rather to serve as a resource providing practical information for the reader.

2. AGENDA
Role and status of IHC
Privilege vs. professional secrecy
Choice of law rule
Case examples

3. PRIVILEGE: BASICS In US, privilege attaches for Communications
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In US, privilege attaches for
Communications
Between privileged persons
Made in confidence
To obtain or provide legal advice.
Restatement (Third) of the Law of Governing Lawyers § 68

4. Scene 1 - 3

5. Scene 1 Bribery at French Sub of US parent
Global Co. US Parent
Landry French Sub.
In the vignette, there are allegations of bribery in the French subsidiary of a US parent company.

6. WHO SHOULD LEAD THE INVESTIGATION?
First…
Identify potential forum(s)
Understand the following information for each jurisdiction:
Status and role of in-house counsel
Privilege vs. professional secrecy and scope of protection
Whether protection applies to communications between foreign in-house counsel and employees

7. ROLE & STATUS OF IHC In the vignette… United States:
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ROLE & STATUS OF IHC
In the vignette…
United States:
IHC are members of bar
Privilege available
France (and some other countries):
IHC are not on the list of “avocats”
Neither legal privilege nor professional secrecy apply to IHC
US: Upjohn v. U.S., 449 US 383 (1981) France: Article 2, Règlement intérieur national EU: Akzo Nobel Chemicals Ltd. v. Comm’n, Case C-550/70P (2010)

8. PRIVILEGE VS. PROF’L SECRECY
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Civil law countries
Varies by country
Professional secrecy/Confidentiality
Scope of protection depends on the jurisdiction…
Common law countries
Privilege, offers evidentiary protection
Attaches when elements are met, but may be waived
Anwar v. Fairfield Greenwich Ltd, 2013 WL , No. 09 Civ. 118 (S.D.N.Y. July 8, 2013)

9. Gucci America, Inc. v. Guess?, Inc.,
CHOICE OF LAW RULE IN THE U.S.
Gucci America, Inc. v. Guess?, Inc.,
ISSUE: Were communications of US in-house and Italian in-house counsel privileged?
Touch base test?
Considerations of comity?
Apply chosen law…
HOLDING…
271 F.R.D. 58 (S.D.N.Y.2010)

10. A PRIVILEGE STRATEGY? In the vignette…
Two possible forums under anti-bribery laws…
France: Article of Crim. Code
US: FCPA?
Can affect strategy in preserving privilege
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11. ASSIGNING RESPONSIBILITIES
French outside counsel?
French in-house counsel?
US outside counsel?
US in-house counsel?
Who should conduct investigation?
ABA Model Rule 5.5: cannot practice in violation of jurisdiction’s regulation

12. A NOTE ON FUNCTIONAL EQUIVALENCE
A 1982 case says YES:
Renfield Corp. v. E. Remy Martin & Co., S.A., 98 F.R.D. 442 (D. Del. 1982)
The test for attorney-client privilege “is a functional one of whether the individual is competent to render legal advice and is permitted by law to do so”
However, Renfield has not been followed:
Honeywell, Inc. v. Minolta Camera Co., Ltd., 1990 WL (D.N.J. 1990)
Finding that the Third Circuit has not applied the functional equivalence rationale and that the individual in question was not a de facto attorney.
Bristol-Myers Squibb Co. v. Rhone-Poulenc Rorer, Inc., 188 F.R.D. 189 (S.D.N.Y. 1999)
Holding that no privilege extended to files of French industrial property agents.
Anwar v. Fairfield Greenwich Ltd, 2013 WL , No. 09 Civ. 118 (S.D.N.Y. July 8, 2013)
Holding that no privilege extended to Dutch in-house who was unlicensed.

13. TIPS FOR PROTECTING PRIVILEGE
Consider all forums involved.
Evaluate strategic use of local and US counsel.
Circulate documents on a “need to know” basis.
Train employees on document circulation.
Ensure in-house lawyers are licensed somewhere.
Circulate reference sheet of the “role & status”, “privilege vs. prof’l secrecy/confidentiality” and choice of law rules for your key jurisdictions.
Investigations – prepare documents, expecting sharing.
Transactions – avoid litigation in unfavorable forum
Consider broadening choice-of-law provisions to include privilege selections.

14. Association of Corporate Counsel Large Law Department
THANK YOU!
Association of Corporate Counsel
Large Law Department