〈中部経済新聞 「中経論壇」平成26年６月17日掲載 池田桂子 〉
Secret Privilege is important strategically
Everyone knows that negotiation and litigations on behalf of civil cases is the responsibility of an attorney. In recent years, I have seen lawyers who have attended public platforms such as a press conference; after which you can then read the description of the issues of the parties involved, or perform the description into legal terms.
However, the right to ask for a defense counsel to be present is recognized in criminal cases, but a lawyer cannot be present during an interrogation and is not permitted to do so in Japan, attendance is not recognized as well in basically administrative procedures and tax audit as well.
Recently, about the review process of the Fair Trade Commission to investigate antitrust violations such as cartels, a movement seeking attendance of lawyers has become a hot topic. In the attempt of globalization, it is attempting to develop a system at the same level as Europe.
For example, in an on-site inspection, in a case where a concerned party wants to contact a lawyer to ask which position is better, to either sign or discontinue, when that party is facing a huge amount of material seized. Privilege is extremely important strategically.
In an on-site inspection, the party can be asked to sign business documents and cannot be stopped from trying to contact a lawyer, when there is a huge amount of material seized, while unable to confirm the exact circumstances the party may be listening for a long time, without the cooperation of lawyers. Only in such a case is it in your best interest and it is what you will want. Attendance of attorney is rarely recognized, cooperation in an investigation might be expected from companies that may be accused of antitrust violations.
It also does not affect consultation with a lawyer which is being used adversely as evidence later. The goal is to not have been aware in Japan which still is, “attorney privilege” – over to refuse submitting to the authorities about what you consult with to a lawyer has also turned up on the cutting board of discussion in a procedural review of the cartel investigation of the Fair Trade Commission.
However, these days it is not limited to research, trading with overseas companies has become a popular for negotiation issue, I do not know when it is required, with respect the submission of documents to be entered as evidence. I think that we should be aware of “privilege” on a daily basis in that regard. That it is required to corporate in your behavior, such as not to be deemed to have waived the privilege in the negotiation process of the agreement, Japan is then vulnerable too.
The risk is obvious, if you imagine the proceedings of the United States which sought first disclosure of litigation documents in the proceedings of discovery.
Even without an M & A agreement of that of an international nature, It is something you may wish to consider, and entertain the use of lawyer with a aware of the issues at all times.
If you sent documents to another party that is unqualified and without the written opinion of counsel, even though the documents are out of the target of future discovery, privilege can be expected originally, it would have been deemed to have waived privilege.
Now that the exchange of e-mails remains on the record, it should also be sent to a lawyer in a cc as an acknowledgement of an internal document. I think it would serve you well to do so!
It is so dangerous not to confirm the exact circumstances while listing specifics which might seem as doubtful if the company waited for a long time; cooperation of lawyers is what all parties want. With the attendance of an attorney it would be recognized, as being cooperative in the investigation which might be expected with companies that may be accused of antitrust violations.
<Keiko Ikeda published June 17, 2014 Chubu Keizai Newspaper “medium through Tribune” Heisei >