ISRAEL Law and Practice Contributed by: Talya Solomon, Iris Achmon, Ekaterina Yaremchuk and Niva Orion, Herzog Fox & Neeman
Requirement of Obtaining Different Counsel The general rule is that one attorney cannot rep - resent two parties, or more, that have a conflict of interests. For example, in general, where a company and its employees are suspected of breaching the ECL, the company may finance its employees′ counsel. However, if a company and its employee have conflicting interests, the two parties must be separately represented. In addition, many times when the ICA thinks there is a conflict of interests between two suspects, it will require separation of representation. In the authors’ experience, in the initial steps of the enforcement effort, the following actions by external legal counsel may be advisable: • make sure that the clients understand their rights and privileges; • provide the clients with clear guidance as to the risks involved in spoliation of information; and • provide guidance as to how the interrogation is expected to be conducted. Counsel should be available to the clients, should any questions or clarifications be needed, as the clients are often allowed to contact their counsel even during the investigation. 2.5 Obtaining Evidence/Testimony Section 46 (b) of the ECL provides the ICA with extensive authority to request from any person all information and documents that would ensure or facilitate the implementation of the law. The ICA interprets this authority broadly, and the courts tend to uphold such interpretation. A key component of the ICA′s collection of evidence is wiretapping. To do so, the ICA is required to receive a court warrant, having pre -
sented sufficient evidence indicating a suspect - ed offence. Another key component is searching through computers, mobile phones and other electronic devices. This also requires a court warrant. 2.6 Attorney-Client and Other Privileges Application of Attorney-Client Privilege Israeli law includes a number of evidentiary privi - lege rules, the source of which is either statutory (namely the Evidence Ordinance [New Version] 1971 (the “Evidence Ordinance” )) or judicial, as a matter of “common law” . Generally speaking, the attorney-client privi - lege applies to any communication between an attorney and their client and/or any document exchanged between them, which are substan - tively connected to the professional legal ser - vices rendered by the attorney to the client. Attorney-client privilege is a statutory privilege Neither the attorney nor the client is obligated to produce things and documents they have exchanged and substantively related to the ser - vice provided by the lawyer to the client. The attorney may not produce such materials with - out the client’s consent (the client however may waive the privilege). Privileged material cannot be used as evidence before the courts or any authority, body or person competent under law to take evidence. Thus, attorney-client privilege applies in procedures handled by the ICA as well as in private lawsuits. Applicability to in-house lawyers The authors are not aware of any Supreme Court decision in this regard. There are a number of district court cases that establish the principle by which the communication between in-house
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