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Global Competition Law Centre Ninth Lunch Talk 18 February 2005 Legal Professional Privilege in Global Competition Law Centre Ninth Lunch Talk 18 February 2005 Legal Professional Privilege in Competition Proceedings before the European Commission E. Gippini Fournier - GCLC - 18/02/05

Erik M. Jensen, 50 J. Legal Educ. 156 (2000) « This is it » Erik M. Jensen, 50 J. Legal Educ. 156 (2000) « This is it » E. Gippini Fournier - GCLC - 18/02/05 2

AM&S (1982) In the course of competition investigations, the Commission may require production of AM&S (1982) In the course of competition investigations, the Commission may require production of the business documents which it considers necessary, including written communications between lawyer and client, in so far as they have a bearing on the market activities of the undertaking (paragraphs 16, 27) n E. Gippini Fournier - GCLC - 18/02/05 3

AM&S It is in principle for the Commission itself, and not the undertaking concerned AM&S It is in principle for the Commission itself, and not the undertaking concerned or a third party, whether an expert or an arbitrator, to decide whether or not a document must be produced to it. (paragraph 17) n E. Gippini Fournier - GCLC - 18/02/05 4

AM&S “certain communications between lawyer and client” are protected, provided: n that such communications AM&S “certain communications between lawyer and client” are protected, provided: n that such communications are made for the purposes and in the interests of the client’s rights of defence; n that they “emanate from independent lawyers, that is to say, lawyers who are not bound to the client by a relationship of employment” (paragraph 21). E. Gippini Fournier - GCLC - 18/02/05 5

AM&S LPP covers “all written communications exchanged after the initiation of the administrative procedure”, AM&S LPP covers “all written communications exchanged after the initiation of the administrative procedure”, n “it must also be possible to extend it to earlier written communications which have a relationship to the subject matter of that procedure” (para. 23) n E. Gippini Fournier - GCLC - 18/02/05 6

Hilti Order (CFI) (1990) “the principle of the protection of written communications between lawyer Hilti Order (CFI) (1990) “the principle of the protection of written communications between lawyer and client may not be frustrated on the sole ground that the content of those communications and of that legal advice was reported in documents internal to the undertaking” n Privilege expanded to include internal notes “confined to reporting the text or content” of communications between lawyer and client. (paragraph 18) n E. Gippini Fournier - GCLC - 18/02/05 7

Rationales n Utilitarian n Rights-based approach Ø Privacy Ø Rights of the defence E. Rationales n Utilitarian n Rights-based approach Ø Privacy Ø Rights of the defence E. Gippini Fournier - GCLC - 18/02/05 8

Rationales: Utilitarian Example: U. S. Supreme Court. n Upjohn Co. v. United States, 449 Rationales: Utilitarian Example: U. S. Supreme Court. n Upjohn Co. v. United States, 449 U. S. 383 (1981), at 389 (to encourage candour between lawyer and client encourages the client to consult with counsel more readily as to how the client should proceed so as to remain within the bounds of the law); n Commodity Futures Trading Commission v. Weintraub, 471 U. S. 343 (1985), at 348 ("the attorney-client privilege serves the function of promoting full and frank communications between attorneys and their clients. It thereby encourages observance of the law and aids in the administration of justice. ") E. Gippini Fournier - GCLC - 18/02/05 9

Rationales: Utilitarian Possible Weaknesses: n Lack of empirical support n Why Only Lawyers? n Rationales: Utilitarian Possible Weaknesses: n Lack of empirical support n Why Only Lawyers? n Admits variable scope of privilege, including different personal scope for corporations and individuals. n Future and Past Behaviour: pushed to logical limits, utilitarian rationale proves unable to explain the privilege precisely where most needed. E. Gippini Fournier - GCLC - 18/02/05 10

Rights-Based Approach: Privacy n n n Explains in part lawyer confidentiality duties Inherently weak Rights-Based Approach: Privacy n n n Explains in part lawyer confidentiality duties Inherently weak justification for legal privilege: Ø Compulsion implies by nature invasions of the private sphere justified by needs of law enforcement. Ø Law enforcement can accommodate privacy interests if that is the problem. Ø Distinction between individual and corporate clients. Niemietz v. Distinction between individual and corporate clients. Germany, Eur. Ct. H. R. (1992), para 31; Case C-94/00, Roquette Frères, [2002] ECR I-9011, para 29. Ø Why lawyers and not others? Niemietz, para. 28. Ø Is LPP really concerned with keeping everything in client-lawyer communications secret, or just with being able to choose what to keep secret and what not? If the latter, then privacy is not the chief concern. Conclusion: privacy, not as an end in itself, but to the extent necessary for a proper exercise of the rights of defence. Niemietz, para 37. E. Gippini Fournier - GCLC - 18/02/05 11

Rights-Based Approach: Righs of Defence Two fundamental rights at play: n right to a Rights-Based Approach: Righs of Defence Two fundamental rights at play: n right to a lawyer ( «right to counsel» ); n right against self incrimination. Privilege avoids impossible choice between these two rights for the accused. E. Gippini Fournier - GCLC - 18/02/05 12

Righs of Defence: Privilege and the Right to a Lawyer n n n ECHR Righs of Defence: Privilege and the Right to a Lawyer n n n ECHR : Article 6(3)(b) and (c): right of the accused to a lawyer and adequate time and facilities to prepare defence. Right to communicate privately with defence counsel not expressly guaranteed. But see S. v. Switzerland, Eur. Ct. H. R. , (1991). Right to counsel before a formal accusation? Imbroscia v. Switzerland, Eur. Ct. H. R. , (1993); Murray v. United Kingdom, Eur. Ct. H. R. , (1996): Ø after charges are brought: always Ø during preliminary investigation: not automatic Ø Without any accusation or investigation? No apparent basis in ECHR. Ø confidentiality guaranteed concerning “matters specifically connected with a lawyer’s work under instructions from a party to proceedings” (Kopp v. Switzerland, Eur. Ct. H. R. , (1998). E. Gippini Fournier - GCLC - 18/02/05 13

In-House Counsel excluded: AM&S “…independent lawyers, that is to say, lawyers who are not In-House Counsel excluded: AM&S “…independent lawyers, that is to say, lawyers who are not bound to the client by a relationship of employment” n “position and status of an independent lawyer, which must be fulfilled by the legal adviser”, this condition is based on “a conception of the lawyer’s role as collaborating in the administration of justice by the courts and as being required to provide, in full independence, and in the overriding interests of that cause, such legal assistance as the client needs”. n Legal privilege rule “must apply without distinction to any lawyer entitled to practice his profession in one of the Member States, regardless of the Member State in which the client lives”. n Legal privilege rule “may not be extended beyond those limits, which are determined by the scope of the common rules on the exercise of the legal profession”. (paragraphs 21, 24 -26) n E. Gippini Fournier - GCLC - 18/02/05 14

In-House Counsel Rights of defence rationale less compelling. n « third party » status? In-House Counsel Rights of defence rationale less compelling. n « third party » status? Becu, Euro-Lex, Lopes. n Common rules n Incentives and disincentives n E. Gippini Fournier - GCLC - 18/02/05 15

In-House Counsel: Common rules Independent Lawyer: n Council Directive No. 77/249/EEC, O. J. L In-House Counsel: Common rules Independent Lawyer: n Council Directive No. 77/249/EEC, O. J. L 78/17 (1977) (cited in AM&S). n European Parliament and Council Directive No. 98/5/EC, O. J. L 77/36 (1998). In-House Counsel: ? E. Gippini Fournier - GCLC - 18/02/05 16

In-House Counsel. Incentives/disincentives: Sharing the Pie n n Stock options, bonuses: U. S. in In-House Counsel. Incentives/disincentives: Sharing the Pie n n Stock options, bonuses: U. S. in 2000 -2002: long-term incentives as a percent of grand total compensation : Chief legal officers 44. 8 percent in 2000 (29. 6 percent in 2002); in value $459, 873 to $75, 027. Staff attorneys, nearly a quarter (23. 9 percent) of their 2000 salaries consisted of long-term incentives (12. 6 percent in 2002). Value of long-term incentives $33, 850 in 2000 ($9, 273 in 2002). (Source: Amy I. Stickel, The Grim Outlook: In-House Counsel Compensation Remains Flat as Economy Slumps (Corporate Legal Times, March 2003), using data from several surveys). n Canada: General Counsel: 75 percent get an annual bonus; over 50 percent receive stock options. Other in-house lawyers who are not general counsel: 61 percent received a bonus averaging $21. 000; 22 percent received stock options averaging $20. 000 in value. (Source: The Canadian Lawyer Magazine May 2004 In-House Counsel compensation survey). n Europe: bonuses generally said to represent about 10% of in-house remuneration. Stock options usually granted only at senior level. E. Gippini Fournier - GCLC - 18/02/05 17

In-House Counsel Incentives/disincentives: Shooting the Messenger n n n February 2002 O’Brien (in-house counsel) In-House Counsel Incentives/disincentives: Shooting the Messenger n n n February 2002 O’Brien (in-house counsel) writes memo raising antitrust concerns March 2002 O’Brien’s employment « ends » . Antitrust violation continued late into second half of 2002. June 2002 O’Brien files suit for wrongful termination (pending) November 2002 company learns that word of « potential antitrust liability » is spreading. Exploratory contacts with DOJ about immunity application. Immunity obtained later. DOJ attempted indirectly « Fire the messenger » immunity removal. Facts from Judge Savage’s Order of 14 Jan. 2005, U. S. District Court E. D. Pa. E. Gippini Fournier - GCLC - 18/02/05 18

In-House Counsel: Tobacco Litigation n Attorney client-privilege allegedly used in a massive effort to In-House Counsel: Tobacco Litigation n Attorney client-privilege allegedly used in a massive effort to conceal any scientific evidence of adverse health effects of smoking. P. Hanauer et al. , Lawyer Control of the Internal Scientific Research to Protect Against Products Liability Lawsuits. L. Bero et al. , Lawyer control of the tobacco industry's external research program: The Brown and Williamson documents. (274 Journal of American Medical Association (No. 3, July 19, 1995), pages 234 and 241). E. Gippini Fournier - GCLC - 18/02/05 19