UK Leniency Guidelines Eliminate Demands For Waiver Of Attorney-Client Privilege

The Office of Fair Trading (“OFT”) in the United Kingdom has released updated guidelines for leniency in cartel cases that will eliminate demands for waivers of the attorney-client privilege as a condition of leniency.

The leniency guidelines will fine-tune the UK’s framework for leniency applications, which the OFT views as essential to the UK’s enforcement efforts against cartels.  Under the leniency program, businesses that come forward and report their involvement in cartel activity may avoid a financial penalty or have the penalty reduced substantially. Similarly, individuals involved in cartel activity may be granted immunity from criminal prosecution.

Previously, the guidelines provided that attorneys could be asked to waive legal professional privileges when representing leniency clients in criminal cases but not civil ones.  The new guidelines eliminate this possibility.

Jack Holland, the OFT official who oversaw the revision of the guidelines, explained why leniency programs are especially important in antitrust enforcement, stating that “[t]he secret nature of cartels and their damaging effects justifies a policy which rewards businesses or individuals who come forward to tell us about cartel activity that would otherwise have remained hidden.”  He further noted that leniency “also helps us bring successful enforcement action against the other cartel members or individuals involved to bring the harmful activity to an end, as well as deterring businesses and individuals more widely from engaging in cartel activity in the future.”

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