Preparing the Lawyer to Be the Witness

Transcription

1 Preparing the Lawyer to Be the Witness Presented by Sam Ramer (Counsel and VP, Government Relations, Symplicity Corporation), Leslie B. Kiernan (Partner, Akin Gump), Kristine L. Sendek-Smith (Partner, Akin Gump) and Carolyn H. Perez (Counsel, Akin Gump) February 24, :30 p.m. 2 p.m Akin Gump Strauss Hauer & Feld LLP

2 Sam Ramer Sam Ramer serves as general counsel and vice president of government affairs at Symplicity Corporation. Before joining Symplicity, Mr. Ramer served as the senior majority counsel on the U.S. House of Representatives Judiciary Committee, dealing with crime, terrorism, homeland security and investigations. Mr. Ramer also served as a prosecutor in New York City and as an assistant U.S. attorney for the District of Columbia. At Symplicity, he oversees all of the company s legal, government affairs and compliance functions, including privacy issues. Mr. Ramer also works closely with Symplicity s clients and partners to address their critical cybersecurity, privacy and related issues.

3 Leslie B. Kiernan Leslie B. Kiernan joined Akin Gump after serving for three years in the Obama administration, including as Deputy White House Counsel. Ms. Kiernan is experienced in handling white-collar criminal defense and crisis management for individuals and businesses, including representation of businesses, boards and executives; members of Congress; and executive branch and other government officials in congressional, government enforcement and Department of Justice (DOJ) investigations. She conducts internal investigations for private companies, and governmental and not-for-profit entities. Ms. Kiernan also assists clients in developing and implementing government affairs compliance programs.

4 Kristine L. Sendek-Smith Kristine L. Sendek-Smith focuses her practice on complex civil litigation, white-collar criminal defense, corporate compliance issues and internal investigations. She also represents individuals and organizations that are the targets of false public accusations by the media, government officials or commercial competitors. Prior to joining Akin Gump, Ms. Sendek-Smith served as an assistant U.S. attorney in Maryland and as a staff assistant for the Senate Judiciary Committee Staff of Senator Edward M. Kennedy.

5 Carolyn H. Perez Carolyn H. Perez counsels clients on a variety of litigation matters, including complex civil litigation, white-collar criminal defense and government investigations. She has represented clients in defamation suits, antitrust litigation, and DOJ investigations involving the Foreign Corrupt Practices Act and the False Claims Act. Ms. Perez formerly served as a legislative assistant to Congressman Sander M. Levin, worked for the John Kerry Presidential Campaign and interned for the Honorable Ricardo M. Urbina of the U.S. District Court, Washington, D.C.

6 GM General Counsel Testifying Before Congress Play C-SPAN Clip.

7 Introduction and Agenda Introduction Primer on Applicable Rules: Lawyer as Witness Rule: Model Rule of Professional Conduct 3.7 Attorney-Client Privilege Work Product Doctrine Other Ethical Considerations Discovery Rules Fed. R. Civ. P. 26 & 45 The Lawyer as a Witness in Practice: Protecting the Privilege and Clearly Defining Counsel s Role First Steps if Served with a Subpoena or Deposition Notice Filing a Motion to Quash or Motion for a Protective Order Preparing for Depositions and Handling Objections Other Considerations

8 Lawyer as Witness Scenarios Drafter of Legal Documents Member of Corporate Committee Business Advisor Business Agent Negotiator Consultant Lobbyist Political Advisor Role in Internal Investigations Attorney as Conduit for Documents or Facts Attorney as Coordinator of Discovery.

9 Primer on Applicable Rules

10 Model Rule of Professional Conduct 3.7 Primer Lawyer as Witness Rule 3.7: provides that a lawyer shall not act as advocate at a trial in which the lawyer is likely to be a necessary witness : It operates only to disqualify attorneys as trial advocates; it does not bar their testimony as witnesses. Purpose of Rule 3.7: prevent confusion protect against unfair prejudice protect against conflict of interests. Three Exceptions: uncontested issue nature and value of legal services rendered substantial hardship ability to hire replacement counsel time and money invested lawyer s specialized knowledge.

11 Model Rule of Professional Conduct 3.7 Primer The lawyer s testimony is not necessary when it is: irrelevant immaterial cumulative can be obtained from other sources. Even in a case where a lawyer-witness would be disqualified at trial, the lawyer generally may represent the client in other ways, such as: preparing documents researching legal issues handling pretrial negotiations appearing at settlement conferences representing a client in non-evidentiary pre-trial hearings testifying at a pretrial hearing without being disqualified handling post-trial proceedings, including appeals depositions courts handle differently, so check your jurisdiction. There may be practical reasons a lawyer would remove himself or herself from representing the client if there is a chance that he or she will be called to testify.

12 Attorney-Client Privilege Primer Evidentiary Rule product of state and federal common law, so it varies by jurisdiction. The attorney-client privilege protects [from disclosure] confidential communications between attorneys and clients... which are made for the purpose of giving legal advice. United States v. Richey, 632 F. 3d 559, 566 (9th Cir. 2011). Elements of Attorney-Client Privilege: communication made between privileged persons (between counsel and client) in confidence for the purpose of seeking, obtaining or providing legal assistance to the client. Policy Rationale: encourages full and frank communication between client and lawyer meaningful advice can only be based on relevant facts promotes voluntary compliance with laws and regulations.

13 Attorney-Client Privilege Who Is the Client? The corporation is the holder of the privilege: Control Group Test: Protection is available to only the corporation s controlling executives and managers. This test has diminished in recent years, although it is still employed in some jurisdictions: Subject-Matter Test: Rather than looking at the roles of employees, look at the subject matter of the employees communications: Communications are privileged if the employee communicates with counsel at the direction of his or her superiors and the subject matter of the communication relates to the performance by the employee of the duties of his or her employment. Upjohn: In 1981, the U.S. Supreme Court adopted a variation of the Subject-Matter Test (Upjohn v. U.S., 449 U.S. 383 (1981)). The employee must have made the communication to corporate counsel for the purpose of seeking, obtaining or providing legal advice to the corporation. The communication involves matters within the scope of employee s official duties. The employee is sufficiently aware that the statements are being provided for the purpose of obtaining legal advice for the corporation. Confidentiality must be maintained.

14 Attorney-Client Privilege Key Points The duty to disclose is the rule privilege is the exception. The reality is that courts often treat in-house and outside counsel differently. Blurred Lines day-to-day involvement can confuse legal and non-legal communications: Advice may not originate in response to consultation about a particular problem, but as part of an ongoing, permanent relationship with the organization. When a lawyer wears two hats, a communication is privileged only when primarily made for the purpose of generating legal advice. Highly fact-specific and jurisdictional inquiry. Relating to a legal matter is not enough.

15 Attorney-Client Privilege Waiver Waivers of Attorney-Client Privilege: purposeful disclosure partial disclosure involuntary or compelled disclosure failure to object advice of counsel. After a prima facie case for waiver is established, the burden shifts back to the privilege s proponent to demonstrate that the privilege is still viable.

16 Attorney Work Product Primer Work Product Doctrine: protects materials prepared in anticipation of litigation: It does not cover communications in the ordinary course of business, regardless of ongoing or impending litigation. Purpose: protects the adversarial process Key Points: applies to oral, as well as written, work product does not shield underlying facts can be prepared by client, attorney, agents. two levels of work product: work that recites factual matters work reflecting counsel s opinions, conclusions, mental impressions or legal theories. Waiver of Work Product: deliberate disclosure to third party advice of counsel (sword/shield) inadvertent disclosure

17 Other Ethical Considerations Model Rules of Professional Conduct Rule 1.6: A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent. A lawyer can be disciplined or disbarred for violating Rule 1.6. Ethical duty is much broader than the testimonial attorney-client privilege. If requested in court and not protected by the privilege, confidential information must be revealed: In practice, create a record by objecting to the disclosure on basis of privilege and reveal only upon court order. Model Rules of Professional Conduct Rule 1.7: Conflict of Interest: Current Clients Model Rules of Professional Conduct Rule 1.8: Conflict of Interest: Current Clients Specific Rules

18 Discovery Rules Primer Scope of Discovery Nothing in the Federal Rules of Civil Procedure creates an exception barring the testimony of a lawyer. Fed. R. Civ. P. 30(a)(1) permits a party to take the testimony of any person, including a party, by deposition upon oral examination. The scope of discovery, while more limited under the newly adopted changes to the Federal Rules of Civil Procedure, is still broad:

19 Discovery Rules Primer Motion to Quash/Motion for Protective Order Motion to Quash Subpoena: Fed. R. Civ. P. 45(c)(3)(A) provides that a court must quash or modify the subpoena that... requires disclosure of privileged or other protected matter, if no exception or waiver applies... or subjects a person to undue burden. Motion for Protective Order: Fed. R. Civ. P. 26(c)(1) states that the court may, for good cause, issue an order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense....

20 Judicial Application of Discovery Rules for Depositions of Lawyer Shelton Approach (8th Circuit): Shelton v. American Motors Corp., 805 F.3d 1323 (8th Cir. 1986) burden on party seeking to take the deposition of the lawyer must show: no other means relevant and non-privileged crucial to case. Flexible Approach (2nd Circuit rejects Shelton): See, e.g., In re Subpoena Issued to Dennis Friedman, 350 F.3d 65, 72 (2nd Cir. 2003). burden on party opposing the deposition of the lawyer must show: inappropriate burden or hardship. Courts using this approach often require in-house lawyers to appear for deposition and assert privilege objections when appropriate in response to specific questions. Overview of Local Jurisdictions:

21 The Lawyer as a Witness in Practice

22 Practical Tips to Protect Privilege Before You Are Ever Called as a Witness The best defense is a good offense. As part of your ordinary practice, create a record memorializing the communication with basic information that a court would need to subsequently determine that the communication was legal in nature and deserves protection. Carefully mark all potentially protected documents as Attorney-Client Privileged/Work Product and Confidential ; include sufficient information for the court to confirm the legitimacy of a future privilege objection. Since attorney-client privilege and the work product doctrine vary by jurisdiction, know the approach in the various jurisdictions where the corporation does business. Adopt written guidelines outlining procedures for handling privileged/work product documents, including precautions to separate privileged documents from routine business documents. Advise employees to avoid routinely copying in-house counsel on nonlegal communications.

23 Practical Tips to Protect Privilege Before You are Ever Called as a Witness Consider the pros and cons of written versus oral communication. Keep minutes of meetings that include specific statements regarding confidentiality, requests for legal advice and subject matter. Avoid mixing legal and business advice in the same communication segregate business and legal advice know what hat you are wearing and make sure others do when working with you: Take care of legal advice that becomes part of core corporate records, such as board meeting minutes. Divide an mixing business and legal advice into two sections and ideally send two s, one for business and one for legal, which allows you to segregate the recipients. Avoid using your business title when acting as legal advisor. In corporate transactions, identify at the outset whether the attorney will have a business or legal role (or both). Establish written job responsibilities and, if playing dual roles, clearly distinguish the business role from the legal counsel role. Send confirmation in writing that the purpose is to render legal advice or services in anticipation of litigation.

24 What Can Land on Your Desk That Puts You in the Witness Seat? Notice of Deposition as Rule 30(b)(6) Witness: designating topics in exclusive knowledge of the in-house lawyer may also identify documents such as lawyer s memoranda and witness interview summaries prepared by the lawyer. Rule 45 Subpoena: personally served as fact witness must follow the same procedural rules as anyone else Civil Investigative Demand Criminal Subpoena Congressional Subpoena or Invitation to Testify

25 Pros and Cons of the Lawyer as a Witness Pros Serves as a sophisticated witness Knows client s business and position well Can provide affirmative testimony that bolsters case Recent example where lawyer wanted to testify on behalf of client. Cableview Communications of Jacksonville Inc. v. Time Warner Cable Southeast LLC, case no. 3:13-cv-00306, in the U.S. District Court for the Middle District of Florida Cons May revert to the role of lawyer rather than the role of witness when testifying May present challenges with respect to privilege and ethics Could be disqualified from representing the client at trial Recent example where in-house counsel s testimony created a conflict of interest. Commonwealth of Pennsylvania v. Schultz, Case No. 280 MDA 2015, in Superior Court of Pennsylvania

26 What Should You Do First? Evaluate Informal Ways to Handle Evaluate the scope and whether a nonlawyer can testify. Attempt to achieve an agreement with the other side to narrow the testimony or substitute a witness. If a former attorney is called to testify, there may be a controlling agreement with a notice provision. Notify client easier in private practice. Evaluate whether the lawyer witness needs personal counsel, and under what circumstances. Consider the impact of parallel proceedings. Ask the court to require the party to first submit written discovery requests or deposition by written questions to the opposing attorney. Point to other sources of information that should first be explored or exhausted.

27 Court Proceedings Before ruling on a Motion to Quash or Motion for Protective Order, the court will examine the proposed scope of questioning to determine whether the attorney-client privilege applies: Default set in favor of discovery need good cause finding. Ways to Bolster a Motion for Protective Order or Privilege Objection: Swear it get an affidavit. Without sworn testimony, courts often deny protective orders. Current duties and responsibilities in current position paint as legal rather than business. Routine practices for maintaining documents. Who has access to your files? Standards for receiving client communications and maintaining their confidentiality. Confidential communication to attorney was: made by an employee at the direction of a superior for purposes of securing legal advice within the employee s scope of duties and knowledge not disseminated to third parties.

28 Preparing for Deposition and Handling Objections Teaching the lawyer to be the witness and not the lawyer Educating the non-litigators on the process Importance of careful document review Role of witness to answer questions Review of potential questions that could implicate privilege and appropriate responses Other proceedings: personal exposure of lawyer witness regulatory, congressional or criminal investigations Fifth Amendment.

29 Other Considerations

30 Yates Memorandum DOJ s Principles of Federal Prosecution of Business Organizations have outlined nonbinding considerations for charging business entities. The principles emphasize corporate self-reporting and cooperation, along with other factors. In September 2015, the DOJ updated the prior guidance, reflecting an enhanced focus on the culpability of individuals. The overriding message in the Yates Memo is that the DOJ will aggressively seek to pursue criminal and civil charges against individuals in corporate cases. Companies are expected to assist the DOJ in this effort. To receive any cooperation credit, corporations must provide to the DOJ all relevant facts relating to the individuals responsible for the misconduct.

31 Special Litigation Committees Shareholder Derivative Lawsuits Unhappy people will view the advisors, investigation, report and recommendation as little more than a show trial designed to avoid taking action. Can an SLC and its counsel communicate investigation findings and related investigatory materials to the company s board of directors without waiving otherwise applicable privileges? SLC may establish an attorney-client privilege with counsel engaged by the committee. However, some courts have held that communications between counsel for the special committee and the company s board of directors are not privileged. To avoid disclosing confidential information, in-house counsel should develop clear procedures that members of special committees and their counsel can follow to ensure that communications and work product remain confidential and protected.

32 Speaker Contact Information Sam Ramer Symplicity Corporation Leslie B. Kiernan Akin Gump Strauss Hauer & Feld LLP Kristine L. Sendek-Smith Akin Gump Strauss Hauer & Feld LLP Carolyn H. Perez Akin Gump Strauss Hauer & Feld LLP