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Professional Rules and Negotiating Outcomes …

This article explores the professional rules that apply to lawyers conducting cross-border criminal investigations and the differences in these rules among different countries. It also examines how these rules can impact an investigation or defense.

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Professional Rules and Negotiating Outcomes …

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  1. Professional Rules and Negotiating Outcomes … Do national rules and perspectives differ? And does it make a difference? Frederick T. Davis The International Academy of Financial Crime Litigators, Basel, Switzerland

  2. Overview of the topic • What professional rules apply to lawyers conducting cross-border criminal investigations? • What are the differences in these rules among different countries? • How can this impact an investigation or defense?

  3. Top Level Questions: • In a transnational situation involving lawyers and clients, whose laws/rules apply? • For a lawyer: • The laws/rules of the country where she is a member of the Bar, or • The laws/rules of the country where an event takes place? • For a client: Whose laws govern the attorney/client relationship? • When dealing with a prosecutor or other public official, what rules/customs apply?

  4. Top Level Questions – Tentative, Non-Universal and Incomplete Answers • For a lawyer • Most probable rule: • Lawyer must comply with both “home” and “local” rules • If the rules differ, comply with the more severe • Of course must be cognizant of local professional licensing (“practice of law”) obligations

  5. Top Level Questions – Tentative, Non-Universal and Incomplete Answers (cont’d) • For a client • Probably protected by the set of laws/rules that most appropriately govern the attorney/client relationship • May be addressed, at least in part, in writing (retainer agreement) • Some useful learning from the world of international arbitration

  6. Top Level Questions – Tentative, Non-Universal and Incomplete Answers (cont’d) • For prosecutors and other public officials, probably a simple rule: • As officials, their governing rules and principles are set forth in the laws of their country, but • There may be issues when dealing with prosecutors in more than one country at the same time. • Perhaps the most important risks relate more to traditions and practices rather than specific rules

  7. Professional privileges • There are, of course, different privileges that may (or may not) apply. For example: • Attorney/client privilege (US) • Work product privilege (US) • Legal advice privilege (UK) • Litigation privilege (UK) • Le secret professionel (France) • These are NOT identical

  8. Professional privileges (cont’d) • Among the many variants • Who is an “attorney” (not in-house counsel in many countries) • Who is the “client”? • When does privilege “attach”? • Can it be waived intentionally by the client? (If so, how?) • Are there risks of unintentional waiver? • How safe is it? Can it be overridden by official action? • Are joint defense agreements appropriate/enforceable?

  9. Internal investigations • Who is the client? • Important to have clear strategy on goal of investigation • To inform the attorney in order to be able to advise the client? • To produce a document that will be shared with someone other than the client? • To be made public? • Can an internal investigation be coordinated with a prosecutor? • Complex privilege implications • Implications on blocking statutes • Risks of non-compliance with local professional rules • Can an attorney conduct an internal investigation • Can an attorney not locally admitted conduct an internal investigation • Upjohn and related problems concerning relationship with interviewees

  10. Negotiation issues • Can/should a lawyer “make the first call” to a prosecutor • If so, what understanding need be had with the client before doing so • Under what circumstances can an attorney disclose to a prosecutor facts harmful to the client and learned through privileged communications • What protections exist or can be developed with respect to make sure that information conveyed to a prosecutor cannot be used against a client • Common law / statutory protections • Agreements (“Queen for a Day”) • Use of hypothetical questions

  11. Negotiation issues (cont’d) • Is there a “right to lie”? • Is there a duty of candor? Can lawyer allow a misimpression to remain uncontested? • Can one advise a client of the risk of non-detection?

  12. Final questions: • How to establish the “factual basis” for a negotiated outcome in the absence of a neutral evaluation of the facts? • Can a corporation “cooperate” by providing the prosecutor with incriminating evidence of its officers/employees? • Does a corporation really have a right to defend itself?

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