Long title
Can and Should the In-House Counsel be Treated as Advocate?
Author(s)' contact information
University of Leibniz, Hanover, Germany
Conference title
International Legal Ethics Conference VI
Conference location
City University London
Country
Germany
Year
2014
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Abstract
The role and function of the in-house counsel is controversially discussed in Germany and Europe. In May 2014, The German Federal Bar will discuss in its General Assembly a new proposal for the regulation of in-house counsels. At the moment the in-house counsel – even admitted to the bar - is not treated as an independent lawyer but in his role as employee. In three landmark decisions the European Court of Justice has taken a similar position denying the in-house counsel the “attorney’s privileges”.
Especially, two aspects are controversial. (1) Is the in-house counsel’s legal advice sufficient to avoid the responsibility for executive organs? The obligation to act lawfully includes the duty obtain an independent legal advice. In Germany, it is unclear whether the in-house counsel is independent in this sense.
(2) Does the in-house counsel have the attorney’s privilege? If public prosecutors investigate in a company, can the legal department’s documents be searched and seized? It again depends on whether the in-house counsel is independent.
In the paper I will ask whether in-house counsels are independent lawyers who only give advice independently or better be understood.
Further, I will analyze if the compliance officers have taken over the role as the independent legal conscience of the company. Does the regulation of the compliance department in the financial industry in the EU and Germany set a minimum standard for in-house counsels to be understood as independent lawyers?
I hereby propose to examine the role of the in-house counsel regarding:
1. the international debate and the rulings of the European Court of Justice
2. the national debate in Germany, especially concerning the ISION decision of the BGH and the new the proposal for the regulation of in house counsel of the German Federal Bar
3. The role of the in-house counsel in a company.
4. Independency as a key problem for in-house counsels.
5. The regulation for compliance officers as a blueprint for an independent in-house counsel.
Especially, two aspects are controversial. (1) Is the in-house counsel’s legal advice sufficient to avoid the responsibility for executive organs? The obligation to act lawfully includes the duty obtain an independent legal advice. In Germany, it is unclear whether the in-house counsel is independent in this sense.
(2) Does the in-house counsel have the attorney’s privilege? If public prosecutors investigate in a company, can the legal department’s documents be searched and seized? It again depends on whether the in-house counsel is independent.
In the paper I will ask whether in-house counsels are independent lawyers who only give advice independently or better be understood.
Further, I will analyze if the compliance officers have taken over the role as the independent legal conscience of the company. Does the regulation of the compliance department in the financial industry in the EU and Germany set a minimum standard for in-house counsels to be understood as independent lawyers?
I hereby propose to examine the role of the in-house counsel regarding:
1. the international debate and the rulings of the European Court of Justice
2. the national debate in Germany, especially concerning the ISION decision of the BGH and the new the proposal for the regulation of in house counsel of the German Federal Bar
3. The role of the in-house counsel in a company.
4. Independency as a key problem for in-house counsels.
5. The regulation for compliance officers as a blueprint for an independent in-house counsel.
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