ACC Files Amicus Supporting Privilege When GC Functions as Both Lawyer and Negotiator


ACC Position: 

ACC joined the US Chamber of Commerce in an amicus brief filed June 2, arguing against a “new and aggressive theory of attorney-client privilege” advanced by the FTC that would undermine the ability of in-house attorneys to freely communicate legal advice to their corporate clients.

ACC’s brief supports Boehringer Ingelheim Pharmaceuticals, which was the subject of an FTC subpoena. The FTC wants the D.C. Circuit to reverse a lower court ruling that 32 documents subpoenaed by the FTC were privileged. The FTC argues that because Boehringer’s attorney was also serving as lead negotiator of business terms, the documents at issue are not protected.

ACC’s amicus argues the continued importance of the D.C. Circuit opinion in In re Kellogg Brown & Root, Inc., which found that if “obtaining or providing legal advice was one of the significant purposes” of an activity, “the attorney-client privilege applies.” The brief also notes that “lawyers cannot provide legal advice in a vacuum” and cites past court cases affirming that it is “neither possible nor desirable” to distinguish between legal and non-legal purposes of an in-house lawyer’s advice.

See the brief here.