The Thirteen Commandments: No. 12
"Use The Attorney-Client Privilege To Protect Your Records And Communication From Unwanted Disclosure"
The number and kind of consultants that are offering compliance training and guidance is proliferating. However, only a law firm can provide the substantial protection offered by the attorney-client privilege to protect your records and communications from unwanted disclosure.
To design, implement, and update an ICP, your company will review and produce documents, correspondences, and reports. You will discover violations even if your company has been earnest and diligent in its compliance efforts. Violations (depending on their kind and severity) do not necessarily reflect badly on your company. It is impossible to be in complete compliance all the time with all the export and import laws. The best you can hope for is to have a competent ICP in place that reflects a robust, honest effort at compliance.
once you discover violations, you must seek legal advice on how to proceed. Given the augmented efforts at monitoring and enforcing compliance, the Government may very well discover your violations. Unless protected by a privilege recognized under the law, you may be forced to produce incriminating documents and records to the Government.
only an attorney can provide adequate and thorough legal advice and interpretation of the evolving rules, regulations, and case law. You may well discover problems during your compliance audit that require immediate legal attention. Even if not hired initially, your company may be forced to hire qualified international trade counsel to deal with these problems. Moreover, many companies enlist the assistance of outside legal counsel to augment and direct the compliance efforts provided by other consultants and professionals.
The attorney-client privilege may be available only if you enlist the advice and guidance of lawyers outside the corporation. The law does not recognize the privilege for any other professionals, not even for an attorney working for an accounting or consulting firm.
It is theoretically possible, but much more problematic, for in-house counsel to maintain the privilege. The privilege is easily lost if corporate counsel deals at all with the business side of the company. Most of the time, the safer course is to hire competent outside legal counsel to assist.
