Professional Rules and Negotiating Outcomes … Do national rules and perspectives differ? And does it make a difference? Frederick T. Davis 18 March 2019 The International Academy of Financial Crime Litigators, Basel, Switzerland

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?

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?

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

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

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

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

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?

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

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

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?

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?