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