"Lawyers, Lies, and Seizures: The European Court of Human Rights Weighs In"
Ah, the lawyers are at it again, and this time, they’re taking on the European Court of Human Rights. Well, you’d think they’d know better, wouldn’t you? I mean, who needs human rights when you’ve got billable hours to rack up? (Sorry, had to.)
In all seriousness, folks, the story goes like this: Jones Day, a law firm with more initials than a dyslexic’s worst nightmare (WD-40, anyone?), conducted an internal investigation for Volkswagen AG. Meanwhile, the Munich II public prosecutor’s office was sniffing around AUDI AG, looking for some unknown culprits (Always Uncovering Dubious Irregularities, anyone? Okay, I’ll stop).
As part of their probe, the prosecutor’s office searched Jones Day’s offices and confiscated some juicy documents related to the investigation. Jones Day, naturally, cried foul and claimed their privileges had been breached. The Munich I Regional Court and the Federal Constitutional Court, however, gave them the old German "Nein" (That’s "no" for you non-Germans).
Undeterred, Jones Day took their complaints to the European Court of Human Rights, alleging a violation of Article 8 of the European Convention on Human Rights. Because, you know, human rights are all the rage these days. The Court, in a thrilling turn of events, told them to sod off (or, in more diplomatic terms, "rejected the complaint as unfounded").
Now, let’s get into the nitty-gritty. The Court argued that the national legal basis for the seizure was sufficiently clear and foreseeable (Yes, it’s a mouthful, isn’t it?). In short, just because lawyers might interpret the law differently doesn’t mean it’s a human rights violation. Unless, of course, the court’s decision was based on a dodgy interpretation – which wasn’t the case here.
As for the second complaint, the Court essentially said, "Sorry, Jones Day, but you weren’t acting as AUDI AG’s lawyers, so the privilege doesn’t apply." Fair enough, I suppose. I mean, if I were AUDI AG, I’d want to keep my dodgy dealings under wraps, too (Too soon?).
So, what does this all mean? Well, in a nutshell (or a prosecution’s evidence box, if you will), the European Court of Human Rights has decided that the scope of protection for legal privilege doesn’t extend to internal investigations when they concern other companies (even if they’re part of the same group).
Of course, this isn’t the end of the world for lawyers. After all, they can still charge their clients for advising them on how to avoid having their documents seized in the first place. That’s what I call a privilege (Cue ominous music).
The Verdict:
While the decision might seem like a blow to lawyers everywhere, it’s actually a gentle reminder that, sometimes, the law is more nuanced than a German court’s sense of humor. As for Jones Day, well, they should’ve known better than to mess with the European Court of Human Rights. After all, you can’t always have your cake and seize it, too (Sorry, had to).
The Lesson:
When commissioning internal investigations, it’s crucial to think about how to preserve the seizure privilege. Or, you know, just don’t be evil, and you’ll probably be fine. Unless you’re a lawyer, in which case, carry on doing what you do best – billing by the hour and making poor dad jokes.
Here is the rewritten article:
The European Court of Human Rights (ECHR) recently delivered a significant judgment in the combined cases of Procedures 1022/19 and 1125/19, involving a complaint lodged by two lawyers and the international law firm Jones Day against the Judgment of the German Federal Constitutional Court (Bundesverfassungsgericht).
Jones Day conducted an internal investigation for Volkswagen AG, which led to a search and seizure of documents by the Munich II public prosecutor’s office. The seized documents pertained to Jones Day’s investigation into and in connection with AUDI AG, a separate entity from Volkswagen AG. Although Jones Day challenged the search and seizure, their complaints were dismissed by the Munich I Regional Court and the Federal Constitutional Court, which ruled that the seizure privilege under Section 97 of the German Code of Criminal Procedure (StPO) only applies in the context of an attorney-client relationship and in criminal proceedings against the client.
Jones Day then petitioned the ECHR, arguing that the German authorities’ actions breached Article 8 of the European Convention on Human Rights, which guarantees the right to respect for private life and correspondence. However, the ECHR declared the complaint inadmissible, finding that there was no violation of Article 8.
In addressing Jones Day’s first objection, the ECHR cited its previous decision in Klaus Müller v. Germany (case no. 24173/18) and observed that the national legal framework governing seizures does not have to be crystal clear. As long as there is a mechanism in place for clarifying differing legal interpretations, the state’s actions will be deemed justifiable, particularly if they align with prevailing court opinions.
Regarding Jones Day’s second complaint, the ECHR found that the search and seizure were necessary in a democratic society. The Court reasoned that the legal privilege was not affected, as Jones Day was retained by Volkswagen AG, not AUDI AG, and there was no attorney-client relationship with AUDI AG. Furthermore, the search and seizure exclusively targeted documents and findings related to AUDI AG, while those pertaining to Volkswagen AG were explicitly excluded. Thus, the relationship of trust between Jones Day and Volkswagen AG was not compromised, and the search and seizure were deemed proportionate in light of the seriousness of the allegations against AUDI AG at the time.
The ECHR’s decision provides important guidance on the scope of protection afforded to lawyers’ internal investigations under the European Convention on Human Rights. The Court’s ruling serves as a reminder that the protection of legal privilege is not limitless and does not automatically extend to internal investigations where the findings and work products concern companies other than the client, especially when there are no potential negative consequences for the client.
In the wake of this decision, companies embarking on internal investigations must carefully consider how to safeguard the seizure privilege and establish clear protocols to preserve confidentiality and ensure compliance with applicable laws and regulations.
Links remain the same:
Procedures 1022/19 and 1125/19
Judgment of the Federal Constitutional Court
