Overview
In an opinion today, Judge Scheindlin ruled that Bank of China must produce certain withheld documents in a case accusing the bank of aiding and abetting a 2006 suicide bombing in Israel. Judge Scheindlin rejected Bank of China’s argument that communications involving unlicensed Chinese in house counsel, who need not be licensed under Chinese law yet often give legal advice, should be protected since they are the “functional equivalent” of attorneys:
BOC argues that this rule [liming privilege to licensed attorneys] is too rigid and that attorney-client privilege should be extended to anyone who serves as the “functional equivalent of a lawyer." BOC cites two lower court cases from other Circuits in support of its proposed “functional equivalent” test. In Renfield Corp. v. E. Remy Martin & Co., a Delaware trial court held that because the French legal system did not have a “clear equivalent [to] an American bar, the requirement for the availability of the attorney-client privilege should be a “functional one of whether the individual is competent to render legal advice and is permitted by law to do so.” In Heidelberg Harris, Inc. v. Mitsubishi Heavy Industries, Ltd., an Illinois trial court held that the attorney-client privilege applies to communications with German patent agents who were “engaged in the substantive lawyering process.” Neither of these cases is persuasive and neither case has been followed elsewhere . . . . As BOC’s own submissions and numerous declarations make clear, there are cognizable distinctions between a “lawyer” and an “in-house counsel” in Chinese law, most critically that it is “not essential” for in-house counsel to be members of a bar or have “some form of legal credentials.” . . . . While the Chinese legal system may be developing, the distinctions between lawyer and in-house counsel are clear and presumably exist for a good reason. I see no compelling reason to . . . create a “functional equivalency” test for the invocation of the attorney-client privilege when applying United States law.
