How will latest changes to Volcker Rule affect non-US banks?
Kathleen A. Scott discusses the final Volcker Rule, focusing on some of the issues raised by non-US banks in their comments.
In any investigation, practitioners should consider at the outset the importance of the attorney-client privilege to the subject matter of the investigation.
If it is deemed desirable for the attorney-client privilege to apply, practitioners should ensure that appropriate steps are taken to attempt to establish and maintain the privilege. However, doing so can be fraught with difficulty, especially when multiple jurisdictions are involved.
A recent English High Court case illustrates the difficulties that can be encountered when local privilege laws apply.
Practitioners who are accustomed to the jurisprudence surrounding the attorney-client privilege in the US may be surprised by the limitations that some foreign jurisdictions place on the application of the privilege.
For example, the English High Court, applying English privilege law to an international investigation which included responding to two subpoenas issued from the US authorities, held that interview notes compiled by both in-house and external lawyers of interviews with current and former corporate employees were not privileged.
Critically, the court found that the interviews of current and former employees were for the purpose of information gathering to enable the corporate representatives to seek and receive legal advice; however, the communications did not occur between the lawyers and the “client”, with “client” being defined narrowly to include only the person or persons authorized by the company to deal with specific legal issues.
The court noted that the lawyers’ thoughts and impressions would almost certainly be privileged under the legal professional privilege, but that the client’s evidence did not substantiate the claim.
For more information on the case, read our publication, “Privilege and the ‘client’: The RBS Rights Issue Litigation.”
The case highlights critical takeaways for US practitioners involved in investigations:
OFAC published a final rule that modifies the Cuban Assets Control Regulations to revoke the so-called "U-turn" authorization.