ISRAEL Law and Practice Contributed by: Talya Solomon, Iris Achmon, Ekaterina Yaremchuk and Niva Orion, Herzog Fox & Neeman
legal counsel and their employer is indeed sub - ject to attorney-client privilege. However, it should be emphasised that attorney- client privilege will only apply to legal commu - nications substantively connected to the pro - fessional legal services that the in-house legal counsel is providing. If the in-house counsel has other roles within the company, correspondence about these roles will not necessarily be privi - leged. Privilege against self-incrimination The privilege applies to oral communications and the delivery of documents. However, the privilege does not prevent the ICA from con - ducting its own search and seizing documents. In addition, the defendant′s decision to use this privilege has an evidentiary weight against it in court. 2.7 Non-Cooperation The ICA has extensive power to request RFI and the ICA attaches great importance to this power. Therefore, failure to comply or co-operate with an RFI probably leads to criminal or administra - tive enforcement measures. According to Section 50D(b) to the ECL, when a corporate entity fails to comply with an RFI, the Commissioner may impose administrative fines up to 3% of a company’s total sales turnover (in Israel) in the year prior to the violation, but not more than ILS9,519,560. For individuals and companies in the year pri - or to the violation with a sales turnover of less than ILS10 million (in Israel), the maximum fine is ILS356,980. Relevant considerations for calculating a fine may be the amount of information allegedly
withheld from the ICA, its importance to the case, former breaches, steps taken by the RFI′s addressee to avoid the offence, etc. In addi - tion, the ICA may consider the prominence of the RFI′s addressee, the magnitude of the main case and whether the RFI′s addressee was the entity under investigation. According to Section 47 (b) of the ECL, the ICA can also choose a criminal route with maximum sanctions of up to one year’s imprisonment and fines. According to Public Statement 1/12, criminal sanctions will be preferred only where the information available to the ICA indicates the intention to prevent the ICA from receiving information or intention to influence the result of the investigation or the ICA’s decision. 2.8 Protection of Confidential/Proprietary Information Protection of Confidential/Proprietary Information Collected by the ICA Generally speaking, the Israeli Freedom of Infor - mation Law 1998 allows disclosure of informa - tion held by governmental bodies, including the ICA. Nevertheless, the law states that it is possible to withhold disclosure regarding an authority’s investigation, meaning that the law does not apply to criminal procedures handled by the ICA. In addition, according to a decision of the Administrative Court, the provisions of the Free - dom of Information Law do not apply to infor - mation collected or created for the purposes of an investigation, or investigations as part of an administrative enforcement proceeding. The Freedom of Information Law also includes a provision that states that authorities do not have to provide information which is a trade secret. It should be noted that the ICA refers to
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