Germany

Simmons & Simmons has created a separate limited liability partnership (LLP) for its U.K. arm, amid concern over legal privilege issues arising in Germany post-Brexit.

The firm incorporated a new LLP with Companies House on November 1, under the names of its managing and senior partners, Jeremy Hoyland and Colin Passmore, respectively.

The decision to create a new LLP was driven by "nervousness" around Germany's limited view of documents that are covered by attorney-client privilege, one partner told Law.com affiliate Legal Week.

The partner said the creation of the new LLP was a precautionary measure, explaining: "It's there should it become necessary, but for now we're just keeping our options open."

They added: "The regulatory position for firms is getting more complicated, and there's no doubt that Brexit makes things even more complicated."

A spokesperson for the firm added in a statement: "This incorporation is a means of securing more flexibility for the firm in a post-Brexit world, where the relationship between the EU and U.K. remains unclear. The firm is well placed to continue to deliver smarter solutions for our clients both in the U.K. and continental Europe."

In March 2017, the Munich office of Jones Day was raided by the Munich Public Prosecutor's Office, with the authorities seizing documents and data supposedly related to the Volkswagen (VW) 'Dieselgate' emissions scandal as part of its own investigations into Audi, a VW subsidiary. Jones Day had been representing VW on its internal investigation.

In July of last year, the German Federal Constitutional Court ruled against a complaint raised by Jones Day, VW and individual Jones Day lawyers in Germany regarding the legality of the raid, although the court also ruled that the seized documents could not be used in the investigation of VW by prosecutors.

Munich-based Pinsent Masons compliance and investigations partner Eike Grunert said: "If you carefully look at the Jones Day decision, there was a part of the data that was seized and that data was downloaded from a server outside of Germany.

"However, it was clear the German authorities didn't have access to that unless they request judicial assistance from the authorities abroad first. So, there may be a practical way out in some instances to prevent or at least delay seizure, but you cannot establish an attorney-client privilege defence by such measures."