Global Litigator. Attorney-Client Privilege Challenges in International Investigations

• Author: Francesca Fulchignoni
• Pages: 9-11

Global Litigator

Published in Litigation, Volume 47, Number 2, Winter 2021. © 2021 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be

copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. 9

FRANCESCA FULCHIGNONI

The author is a practice area associate with Sullivan & Cromwell LLP, New York City.

AT TOR NEY- CL IENT

PRIVILEGE CHALLENGES

IN INTERNATIONAL

INVESTIGATIONS

American litigators expect to claim the

attorney-client communication privi-

lege to shield from discovery informa-

tion obtained from their clients or, in the

representation of a corporation, from

interviews of the company’s executives.

Litigators also expect to claim the work-

product protection over the records they

create in the course of preparing their cli-

ents for litigation.

But as firm as those expectations may

be, they are not universally shared, espe

-

cially abroad, but sometimes at home too.

First, challenges to the work-product

protection are widespread. Consider the

forced discovery of interview memoranda

in the United Kingdom in the context of

Serious Fraud Office investigations of cor-

porations. See Sunil Harjani’s article in the

Fall 2018 issue of L, “Privilege

and Interview Notes in Cross-Border

Investigations.” Harjani described investi-

gation counsel’s preference in maintaining

both the attorney-client communication

privilege and the work-product protection

over “all information obtained” and chal-

lenges to the protection in the context of

internal investigations, but the same can

now be said in the context of cross-border

criminal and regulatory investigations.

Second, challenges to the attorney-

client communications privilege abound.

The most striking example comes from

searches and seizures directed at indi-

viduals that take place at company or law

firm offices. Those run parallel to the U.S.

Department of Justice’s (DOJ’s) most re-

cent challenges to the attorney-client

privilege in criminal matters through the

crime-fraud exception. The DOJ has used

filter teams, also sometimes called “taint

teams,” to review evidence over which

criminal defendants had claimed privilege.

U.S. prosecutors appear prone to do

so even more in the future, as the DOJ

announced in May 2020 the creation of

a Special Matters Unit within the fraud

section dedicated to filtering privi-

leged documents. As reported by the

Global Investigations Review, the chief

of that new unit will “advise prosecutors

throughout the fraud section on ways to

identify and handle issues related to ‘evi-

dence collection’ and privilege at all stages

of criminal investigations and litigation.”

France

In France, investigators have gone even

further. In the context of a tax fraud inves-

tigation into members of the Wildenstein

family, a famed art appraisal and collec-

tion dynasty, French investigators raided

the offices of a law firm and seized hand-

written notes that were later introduced

as evidence at trial. The justification for

those methods in both the United States

and France is the accusation of the lawyer

as co-conspirator to the underlying crimi-

nal behavior. But the stage of an investiga-

tion at which the searches are conducted

makes that justification questionable.

In the Wildenstein matter, French

lawyer Olivier Riffaud even spent time

in jail, unable to make bail. Lawyer and

tax advisor Robert Panhard was charged

as a tax fraud accomplice for his work

in preparing inheritance records for the

Wildenstein family. Handwritten notes

from meetings he had with his clients re-

flecting concerns he had with certain trust

setups, and identifying the risks he antici-

pated, were introduced as evidence of his

knowledge of the tax risks undertaken by

his clients and of his own criminal mens

rea. Judges used what would be consid-

ered by U.S. litigators as the attorney’s

own work product to show that a step too

far had been taken. The lawyer went from

advisor to an accomplice.

A February 2016 decision by France’s

highest criminal court, the Cour de cas-

sation, describes the limitations imposed

on such searches at a lawyer’s home or

office, applying the European Convention

on Human Rights (ECHR). The decision

expands the conditions necessary for a

valid authorization to search the home

or office of a French lawyer, by reinforc-

ing an obligation to state the reasons for