The High Court of Justice in London ruled on May 8, 2017 that the Serious Fraud Office (SFO) in certain instances could pierce the attorney-client privilege during their investigation of Eurasian Natural Resources Corporation Ltd (ENRC). The ruling allows the SFO to obtain evidence that was gathered by the Defendant, ENRC during an internal corruption investigation.
Background
The SFO began a criminal investigation into ENRC in 2013. The investigation was begun after the SFO terminated discussions with ENRC, which they had begun in 2011. ENRC stated they were innocent of the charges and originally claimed they would cooperate with the SFO. However, after the SFO sought access to the disputed documents, ENRC refused and the SFO filed a civil action to obtain access. The SFO ended discussions with ENRC after ENRC's Chairman, who had been leading the investigation, resigned and they ended their relationship with the Dechert LLP law firm.
The court ruled that "for the purposes of this claim, it is unnecessary to decide whether the SFO's characterization of the dialogue between itself and the ENRC is correct..."
The investigation focused on allegations of corruption in Kazakhstan and Africa. While ENRC denied they committed any criminal offences, the court ruling said whether or not they committed an offence wasn't material to the ruling.
ENRC claimed the documents in dispute were subject to litigation privilege or legal advice privilege. The SFO position was they accepted the redaction of specific legal advice (as the term was defined in Three Rivers DC v. Bank of England) from the documents in question, but they rejected any generic claim to litigation privilege covering all the information in the documents.
The disputed documents fell into four categories:
- Category 1 - notes taken by the firm Dechert LLP of employees and former employees, suppliers and third parties when they were asked about the events being investigated. ENRC claimed all these documents were subject to litigation privilege and alternatively legal advice privilege under attorney work product.
- Category 2 - materials that were created by Forensic Risk Alliance as part of a books and records review. ENRC claimed litigation privilege with these documents.
- Category 3 - documents that contained factual evidence presented by a partner at Dechert LLP to the ENRC Board. ERNC cited legal advice privilege for these documents and alternatively litigation privilege.
- Category 4 - among other documents, this category included 2010 email communications between an ENRC executive and Mr. Ehrensberger, the Head of their Mergers and Acquisitions department. Mr. Ehrensberger had previously been ENRC's General Counsel and resumed this role in 2011.
Privilege
Litigation privilege is defined as:
"Communications between parties or their solicitors and third parties for the purpose of obtaining information or advice in connection with existing or contemplated litigation attract litigation privilege when, at the time of the communication in question, the following conditions are satisfied: (1) Litigation is in process or reasonably in contemplation; (2) The communications are made with the sole or dominant purpose of conducting that anticipated litigation; (3) The litigation must be adversarial, not investigative or inquisitorial."
The ruling rejecting ENRCs claims of litigation privilege says the following:
"I reject ENRC's submission that by parity of reasoning, litigation privilege extends to third party documents created in order to obtain legal advice as to how best to avoid contemplated litigation (even if that entails seeking to settle the dispute before proceedings are issued). There is no authority cited in support of that proposition, and it self-evidently contradicts the underlying rationale for the privilege. Equipping yourself with evidence to enable you to conduct your defence free from the risk that your opponent will discover how you are preparing yourself, and to decide what evidence you are planning to call if the case goes to court, and what tactics to employ, is something entirely different from equipping yourself with evidence that you hope may enable you (or your legal advisers) to persuade him not to commence proceedings against you in the first place."
The ruling says the following about legal advice privilege:
"Legal advice privilege attaches to all communications passing between the client and its lawyers, acting in their professional capacity, in connection with the provision of legal advice, which "relates to the rights, liabilities, obligations or remedies of the client either under private law or under public law"
"If the communication is between client (or the client's agent) and lawyer for the purpose of obtaining legal advice in connection with anticipated litigation, it is covered by legal advice privilege rather than litigation privilege. If the communication is between the lawyer and someone other than the client, it will only be subject to LPP if it satisfies the test for litigation privilege. That is so whether the client is an individual, a partnership, an unincorporated association or a corporate entity. Communications between clients and third parties, such as professional advisers who are not lawyers, are not subject to legal advice privilege. Interposing a lawyer in the chain of communication will not improve the client's chances of claiming legal advice privilege."
"The question of who was the "client" in this context did not directly arise for consideration. However, the judgment of the Court of Appeal supports the proposition that where the party asserting privilege is a corporate entity, legal advice privilege attaches only to communications between the lawyer and those individuals who are authorised to obtain legal advice on that entity's behalf. Communications between the solicitors and employees or officers of the client, however senior in the corporate hierarchy, who do not fall within that description will not be subject to legal advice privilege."
"I accept that the question "who is the client to whom the lawyer owes a duty?" and the question "who has the client authorised to act on his behalf in communicating with the lawyers?" are different; but in this specific context it is important to bear in mind that the privilege attaches only to those communications between lawyer and client (or the client's authorised representative) whose purpose is obtaining legal advice."
"The judgments of the Court of Appeal in Wheeler v Le Marchant (1881), which played a large part in the Court of Appeal's reasoning in Three Rivers (No 5), support the proposition that privilege will not attach to the employee's (or anyone else's) communication with the lawyer unless that person is acting as the client's agent for the purpose of obtaining the legal advice (in the sense that he has been tasked with obtaining it)."
Ultimately, the court granted relief to the SFO on all disputed categories of documents, except for Category 3.
In GCSG's experience, we have often seen General Counsels believe privilege is much easier to claim and defend than this ruling would imply. The ruling brings into doubt the ability of companies to claim litigation privilege in similar situations. While ENRC will likely appeal this ruling, we recommend General Counsels, with registered businesses in the UK, track the ultimate outcome of this case and carefully review this ruling to determine how it may impact their current approach to claiming privilege during investigations of potential violations of the law.
Contact us at info@globalcompliancesg.com with any questions or for more information.
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