Introduction

Internal investigations involving more than one jurisdiction create additional challenges for counsel. This chapter examines the following challenges:

• Privilege
• Working with an international legal team
• Dealing with enforcement agencies in multiple jurisdictions
• Cultural and language challenges

Privilege

Maintaining privilege over the investigation to the greatest possible degree is challenging but essential. Different jurisdictions offer differing degrees of recognition and protection of solicitor-client privilege. While Canada and the U.S. afford broad protection to communications between lawyers and clients and to lawyers’ work product, other jurisdictions offer far less protection.

While this Guide is not meant to be an exhaustive treatment of privilege in other jurisdictions, the following examples illustrate the complexities faced by counsel.

Canada: Even in Canada, there is no guarantee that all aspects of an investigation will be privileged. For example, in R v. Dunn 2012 ONSC 2748 , the Crown sought production of lawyers’ interview notes of interviews of executives conducted by their employer. While in that case production of the notes was not ordered, the lawyers were directed to refresh their memories by reading the notes and were compellable witnesses.

Europe: The European Union limits solicitor-client privilege to communications with external lawyers who are qualified to practise in an EU or European Economic Area country that are prepared for the purpose of the exercise of the client’s rights of defence.

Internal client notes confined to reporting on the content of a communication with counsel that is protected by privilege are also privileged. Communications with in-house counsel and communications with non-EU/EAA lawyers are not privileged, nor are communications that provide general legal advice. In addition to privilege at the EU level, individual EU member states may apply different rules for investigations under their national laws.

Key references for Europe

• Akzo Nobel Chemicals Ltd. V. EU (Case C-550/07)
• AM & S v. European Commission (CaseC-155/79)
• DLA Piper Legal Professional Privilege Global Guide, page 63
• P. Doris and S. Melrose, Privilege - European Union (2016)

Asia: Asian countries typically afford even less protection to communications with lawyers. For example, while Japan protects communications with lawyers in civil and criminal proceedings, it does not formally recognize privilege in administrative or regulatory matters like competition law investigations (see Matsuda and Ikeda, ICLG Corporate Investigations). Japan has recently introduced rules protecting some communications with lawyers in cartel and bid-rigging investigations.

South Korea and China do not recognize legal advice privilege at all, although they afford some limited protections to communications with lawyers.

For additional information on South Korea see New Korean Supreme Court case finds that broad attorney-client privilege does not exist in Korea and Attorney-Client Privilege in Korea – Principle versus Practice.

The following guidelines can help maintain privilege in a multi-jurisdiction investigation:

• Retain local counsel in each relevant jurisdiction. Obtain advice on the scope of privilege and how best to ensure that the investigation remains privileged.
• Outside counsel should be involved in all aspects of the investigation.
• The terms of the outside counsel’s retainer should clarify that counsel is retained not only to investigate and make findings, but to provide legal advice based on the investigation. The retainer should also identify that litigation is contemplated.
• Experts should be retained through outside counsel and report to outside counsel.
• All documents prepared in connection with the investigation should be marked as privileged and outside counsel should always be copied when they are circulated.
• Circulation of documents relating to the investigation within the corporation should be kept to the minimum necessary.
• Avoid creating documents that may be producible, whether in the jurisdiction where they were created or another jurisdiction. For example, to the extent possible, communications with enforcement agencies that contain substantive information should be made orally.
• Think twice before recording or transcribing interviews with witnesses. Although recordings and transcriptions provide a better record of the interview than counsel’s notes, they may not be privileged.

Working with an International Legal Team

Here are best practices for collaborating with an international legal team:

• Retain outside counsel with relevant experience in every jurisdiction. Outside counsel from the firm that the client typically works with can be appropriate if there are no conflicts, concerns about the relationship between the firm and the individuals investigated or concerns about counsel’s previous advice to the client.
• Appoint a lead for the group. The leader will typically, but not always, originate from either the jurisdiction of the client’s headquarters or the jurisdiction that is most relevant to the investigation. The leader of the legal team should report to (and take instructions from) the client’s general counsel, board of directors or independent committee, as the case may be.
• Consider if outside counsel in each jurisdiction should report to (and take instructions from) in-house counsel in that jurisdiction. It is important to avoid confusion on who is responsible for instructing counsel in a jurisdiction. This means that the client must determine how its in-house counsel will work together on the investigation. One way to avoid problems is to centralize the reporting and instruction relationships, but this is not always possible.
• Consider who conducts and attends witness interviews. While counsel in each jurisdiction will often want to attend all interviews, the presence of more than two or three lawyers can reduce the effectiveness of an interview.
• International legal team should meet regularly to keep everyone up to date.

Dealing with Enforcement Agencies in Multiple Jurisdictions

An investigation that spans multiple jurisdictions may also involve enforcement agencies in those jurisdictions. The lead investigator should obtain advice from local counsel about the foreign enforcement agency and the following information:

• What legislation does the agency enforce? And what is the nature of those laws (criminal or civil)?
• What are possible penalties?
• Are employees potentially subject to penalties?
• Does the agency have immunity, amnesty, leniency, or whistleblower programs?
• What investigative tools does the enforcement agency possess (dawn raids, subpoenas for witnesses or documents, wiretaps, computer searches, etc.)?
• What are the client’s rights in dealing with the agency?
• How does the agency typically conduct an investigation?
• Is the investigation confidential?
• Does the agency cooperate and share information with other domestic or international agencies? What statutory or other mechanism is used to do so?
• What privilege rules does the agency apply?
• What adjudicative process follows the investigation? What procedural rights does the client have in this process?

Cultural and Language Challenges

An investigation involving multiple jurisdictions may mean working with diverse cultures and languages. These differences can manifest in several ways. For example, they can impact a witness’ willingness to offer information and make us reconsider “western” views on assessing a witness’ credibility.

Cultural differences can also manifest in the documents reviewed during the investigation - with the most obvious challenge being that they may require translation. However, differences may go beyond language as people from different cultures may express themselves differently even if they are using the same language. Cultural differences can also exist between different trades, professions and organizations. These differences can also affect dealings with enforcement agencies.

Dealing with these differences can require different interviewing and investigative techniques. The obvious way to deal with these challenges is to ensure that the investigation team includes people familiar with the relevant cultures and languages. Counsel should also be attuned to the differences and should develop at least some familiarity with relevant cultural and linguistic nuances.