· The first, and most important thing, to recognize is that attorney-client privilege between corporate attorneys and employees is limited and must relate to legal advice and the employee’s actual duties at the company. Any employee who speaks with an attorney should be aware of these limitations. Second, attorney-client privilege is strictly ...
· The attorney-client privilege protects communications between a client and an attorney when the communication was made for the purpose of the client obtaining legal advice. Most attorneys are familiar with the basics of the attorney-client privilege, the attorney work product doctrine and attorney ethics rules to maintain client confidentiality.
The Sandoz court took a restrictive view of the attorney-client privilege in multiple respects. In perhaps the most stark departure from precedent, the court held that non-lawyer employees of a corporate client cannot disseminate corporate counsel’s legal advice within the corporation without waiving the privilege.
· Readers of this article are surely familiar with the basic elements of the attorney-client privilege: confidential communications between an attorney and a client for the purpose of giving or receiving legal advice are generally privileged against discovery in litigation. 1 This privilege is widely regarded as the oldest and most venerable of ...
Under Upjohn, an employee's communications with a corporation's attorney are considered privileged if they meet several criteria:The communications were made for the purpose of giving or receiving legal advice.The substance of the communications related to the employee's work duties.More items...
Although the precise definition of attorney–client privilege varies among state and federal courts, there are four basic elements to establish attorney–client privilege: (i) a communication; (ii) made between counsel and client; (iii) in confidence; (iv) for the purpose of seeking, obtaining or providing legal ...
The common interest doctrine is an exception to the general rule that disclosure of a communication to a third party destroys any attendant privilege. In other words, the doctrine permits attorneys representing different parties with similar legal interests to share information without having to share it with others.
Evidence Code 954 is the California statute that makes communications between attorneys and their clients privileged and confidential. This is what is known as the “lawyer-client privilege” (or the “attorney-client privilege”).
The establishment of the attorney-client relationship involves two elements: a person seeks advice or assistance from an attorney; and the attorney appears to give, agrees to give or gives the advice or assistance.
No matter how the attorney-client privilege is articulated, there are four basic elements necessary to establish its existence: (1) a communication; (2) made between privileged persons; (3) in confidence; (4) for the purpose of seeking, obtaining or providing legal assistance to the client.
Just as it is always good practice to have a written engagement letter to establish and clarify any attorney-client relationship, a written agreement can provide evidence to a court that the parties believed that they shared a common legal interest subject to privilege.
The common interest privilege is “an extension of the attorney client privilege.” “It serves to protect the confidentiality of communications passing from one party to the attorney for another party where a joint defense effort or strategy has been decided upon and undertaken by the parties and their respective counsel ...
It is not necessary for parties to share a common solicitor in order to claim common interest privilege so long as the communications are made to further the parties' shared interests. A common interest in the outcome of the litigation will generally be sufficient to allow a party to invoke common interest privilege.
Emailed correspondence between attorney and client is privileged. However, the client can take some actions which will waive this attorney client privilege.
Related Content. The doctrine that allows separately represented parties with common legal interests to share information with each other and their respective attorneys without destroying the attorney-client privilege. It is also known as the joint defense doctrine.
The privilege shields from discovery advice given by the attorney to the client as well as communications from the client to the attorney. Voluntary disclosure of privileged communications to a third party results in waiver of the attorney-client privilege unless an exception applies.
Attorney-client privilege protects communications in which the lawyer-lobbyist is “acting as a lawyer.” [16] The types of communications that likely would be protected include the legal analysis of legislation, [17] such as the interpretation and application of legislation to factual scenarios; legal advice on pending legislation; [18] and legal advice on how to proceed with lobbying efforts. [19] Conversely, the attorney-client privilege does not protect communications with lawyer-lobbyists that do not provide legal advice. [20] Examples of communications that likely would not be protected include summaries of legislative meetings; [21] updates on legislative or lobbying activity; and updates on the progress of certain legislation. [22]
It is important to discuss privilege issues with clients regularly, assess potential concerns at each stage of a government investigation, and develop both strategic and tactical approaches to either maintaining these protections or strategically determining to waive them .
Joint defense or common-interest agreements allow parties to mount a common defense in civil or criminal matters while maintaining privilege over communications. [23] These can be with other investigated parties ( e.g., other suspected co-conspirators), other co-investigators ( e.g., Audit Committee or an outside audit firm), or client constituents ( e.g., officers or employees). Lawyers should work with corporate clients to assess balancing the benefits of joint defense and common-interest agreements against potential loss of cooperation credit. If a client enters into any such agreement, counsel should reinforce for the client that privilege is vulnerable to attack, and anything shared as a result of the shared defense could end up in the government’s hands.
First, counsel should brief corporate clients on the operation and importance of attorney-client and work product privilege as quickly as possible once the client is alerted to a government investigation. In addition to explaining to the corporate client how both the privilege and work-product work and why these protections exist, counsel should be sure to advise clients that neither the privilege or work product is sacrosanct. There are many scenarios, often not fathomable at the beginning of an investigation, that may lead to a later disclosure and the loss of privilege, such as disclosure to cooperate in a government investigation, to preserve the reputation of the company, a change in control at the client, or later conduct that waives the privilege.
Third, as is often the case in government investigations, lawyers must involve third parties such as auditors, experts, or public relations consultants. Whether information and documents shared with these third parties will retain privilege or be afforded work-product protections depends on the circumstances. The best practice in these situations is to execute a written common interest agreement between the third-party and outside counsel that clearly sets out, at a minimum, (1) the scope of the engagement; (2) the existence of a common interest; (3) the lawyer’s need for services in delivery of specified legal advice to client; (4) an agreement that the third-party will maintain confidentiality, including by safeguarding and marking records; and (5) an agreement that the third-party will direct substantive communications to the lawyer.
The most recent court challenge involving an assertion of privilege in a congressional investigation was in 2017 by Backpage CEO Carl Ferrer. The D.C. Circuit dismissed Ferrer’s challenge to a subpoena issued by the United States Senate’s Permanent Subcommittee on Investigations (“PSI”) for mootness, and vacated a series of district court rulings in the case that seemed to open the door to an adjudication of Congress’s ability to compel privileged documents. [12]
Further, as part of this communication structure, lawyers should work with clients to establish a centralized communication structure at the beginning of an investigation, with outside counsel included on all key communications to ensure the efficacy of the privileges.
The Attorney-Client Privilege. The attorney-client privilege may protect a communication from disclosure if five fundamental elements exist: (1) an attorney; (2) a client; (3) a communication; (4) a confidentiality that was anticipated and preserved; and (5) legal advice or assistance (as opposed to business or personal advice) ...
However, if an email between outside and internal counsel is forwarded to someone outside of the legal team within the company, privilege is not broken because the communication is still between attorney and client.
At the same time, if an attorney is overly restrictive or indiscriminately withholds documents, they risk losing credibility with opposing counsel and the court, which can make it more difficult to assert the privilege when necessary.
In-house counsel is often called upon to provide input beyond a legal opinion. They often fill senior leadership roles within corporations and engage in day-to-day business decision making outside of their role as an attorney.
The privilege likely only applies when that person is acting in a legal capacity. The determination of who is counsel is also more difficult with regard to corporate communications. In certain jurisdictions and situations, the privilege may include paralegals and assistants in the legal department.
The trickier question is whether the communication should be withheld or redacted when non-lawyers discuss, not legal advice they have been given, but legal advice they intend to seek from in-house counsel. The privilege analysis with non-lawyer communications becomes even more complicated when the work product doctrine is taken into consideration. Under the work product doctrine, communications and documents can be privileged even if the communication does not directly include or reference an attorney, if the work or communication was done at the direction of an attorney and in anticipation of litigation.
Likewise, a well-intentioned employee concerned about confidentiality may insert the word “Privileged” at the top of a document or communication so that it remains confidential. However, unless the nature of the communication is legal advice or it is a document prepared at the request of counsel in anticipation of litigation, the privilege does not apply.
The common interest privilege is an extension of the attorney-client privilege. In other words, the common interest privilege is not a stand-alone privilege wholly separate and apart from the attorney-client privilege. Instead, the common interest privilege is basically an expanded version of the attorney-client privilege.
The common interest privilege only applies where each separate client group has its own attorneys. If a group of clients and their attorneys communicate with an unrepresented party, then there can be no common interest privilege. In that situation, the unrepresented party is simply a third party who destroys the privilege and creates waiver. 28
To increase the odds that a court will honor a claim of the common interest privilege, the following pointers can help.
The common interest attorney-client privilege often causes confusion among both attorneys and courts because jurists often mix up this privilege with similar doctrines.
The attorney-client privilege protects communications between clients and their attorneys and allows them to communicate in a full and frank manner. Generally, for attorney-client privilege to apply to a communication (either written or oral), the communication (1) must be between a client and an attorney or an agent of an attorney; (2) must contain confidential information; (3) must be made without the presence of a non-privileged third party; and (4) is for the purpose of securing legal advice. Fla. Stat. § 90.502. The privilege belongs to the client, who may waive the privilege affirmatively, inadvertently, or by implication.
For corporate counsel, the corporate entity makes up the “client,” not the corporation’s individual officers, directors, shareholders, or employees. Because the corporation acts and communicates with counsel only through these individuals, determining when privilege applies can be challenging.
The work product doctrine is a corollary to the attorney-client privilege. The doctrine prevents an adverse party from discovering or compelling the disclosure of written or oral materials prepared by or for an attorney in the course of a legal representation, especially when prepared for the purpose of litigation. Work product typically falls into two buckets: opinion work product and fact work product. Opinion work product includes an attorney’s mental impressions, notes, and legal strategies. Fact work product includes information separate and apart from legal analysis, such as transcripts of witness interviews, reports of non-testifying experts, and financial records from the client. Southern Bell Telephone and Telegraph Co. v. Deason, 632 So.2d 1377, 1383 (Fla.1994).
Privilege is more likely to apply when an officer of the company or other senior management communicates with corporate counsel and less likely to apply when the communication is with a lower-level employee. Either way, in-house counsel should clarify that they represent the corporation and not any particular individual. Upjohn Co. v. United States, 449 U.S. 383 (1981).
Ensure the only participants with access to privileged collaboration tool data include an actively contributing attorney and those who share a privileged relationship (officers, directors, or other “need to know” employees).
An attorney’s legal advice on the impact of the investigation and recommended course of action, however, likely is privileged. Second, privilege protections do not extend to business advice provided by a lawyer. Again, protected communications are those made to secure legal advice.
Merely including an attorney as a recipient on a communication or meeting invitation does not necessarily make that communication or meeting privileged. Further, for those communications that mix business and legal advice, the privilege only applies to the portion containing legal advice.
On the other hand, attorney – client privilege derives from an evidentiary standpoint, rooted in common law jurisprudence and local state statutes. [9] This privilege exists “to encourage full and frank communications between attorneys and their clients and thereby promote broader public interests in the observance of law and administration of justice. The privilege recognizes that sound legal advice or advocacy . . . depends on the lawyer’s being fully informed by the client.” [10] In general, attorney – client privilege prevents attorneys from testifying or being forced to testify at trial and disclose statements made to their clients. [11] No matter how this privilege is articulated, it is enacted when the following four elements are met: “ (1) a communication; (2) made between privileged persons; (3) in confidence; (4) for the purpose of seeking, obtaining or providing legal assistance to the client.” [12] Each of these elements are briefly described below.
Primarily, attorney – client confidentiality is an ethical issue. [4] ABA Model Rule 1.6, comment 2 defines confidentiality as: “ [A] fundamental principle in the client – lawyer relations is that, in the absence of the client’s informed consent, the lawyer must not reveal information relating to the representation . . . This contributes to the trust that is the hallmark of the client – lawyer relationship.” [5] Here, this privilege not only extends to an attorney giving professional advice, but to general advice and any information that pertains to obtaining legal representation. [6] [7] This confidentiality remains intact throughout the entire course of the client’s representation, and even extends to after the client’s death. [8]
While there is no dispute that both attorney – client privilege and attorney – client confidentiality “concern information that the lawyer must keep private,” its applications greatly differ. [18] While attorney – client confidentiality is broad in scope, attorney – client privilege is limited to evidentiary matters, and only met when four elements are met. Overall, while in practice and common understandings the differences between these two concepts may be blurred, the applicability and general ideas for each greatly differ.