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In-house privilege shrinks again

A Dutch in-house lawyer with a law degree but no license isn’t entitled to the attorney-client privilege, a recent federal case held.

In Anwar v. Fairfield Greenwich Ltd, No. 09 Civ. 118 (S.D.N.Y. July 8, 2013), the plaintiffs were allowed to depose the senior Dutch in-house counsel over objections based on attorney-client privilege.

The Dutch lawyer had never been licensed in any jurisdiction. He apparently never held himself out as a licensed attorney, and he didn’t appear in court.
Dutch law requires the employer of a licensed in-house lawyer to sign a professional charter committing to honor the attorney’s independence, according to a client alert from Jenner & Block. But the defendant who employed the Dutch lawyer never signed the professional charter, so it couldn’t argue that it had assumed he was licensed.

‘As a result,’ Jenner & Block said, ‘plaintiff was entitled to discover communications between the defendant’s employees and the Dutch in-house lawyer.’

To protect the privilege, companies should make sure their in-house lawyers keep bar membership current and remain on active status. And they should know the practice rules in countries where they have lawyers.

‘For example,’ Jenner & Block said, ‘if the defendant had known about the professional charter requirement when a licensed attorney is employed under Dutch law, it would have known that its in-house counsel was not licensed.’

A copy of the decision in Anwar v. Fairfield Greenwich Ltd, No. 09 Civ. 118 (S.D.N.Y. July 8, 2013) is here in pdf.


Richard L. Cassin is the Publisher and Editor of the FCPA Blog. He can be contacted here.

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