MAINTAINING THE ATTORNEY-CLIENT PRIVILEGE DURING COMMUNICATIONS BETWEEN IN-HOUSE COUNSEL AND CORPORATE EMPLOYEES David J. Bright Direct Number: (515) 286-7015 Facsimile: (515) 286-7050 E-Mail: djbright@nyemaster.com 625 First Street SE, Suite 400 Cedar Rapids, IA 52401 (319) 286-7000 Attorneys at Law Offices in Des Moines, Ames and Cedar Rapids
Basis of the attorney-client relationship Key factors of the relationship Confidentiality Trust Knowledge 2
Definition of the privilege Conditions Relationship contemporaneous with communication. Subject matter related to communication. 3
Definition of the privilege (continued) Conditions Retainers or engagement letters. Client belief forms the basis of the relationship. 4
Definition of the privilege (continued) Example Information that is voluntarily communicated, either orally or in writing, in confidence between a client and his or her attorney through a manner by which the information is not disclosed to third parties. 5
Limitations on the privilege Control of information Benefit of the privilege. Prevention and refusal to disclose information. Limitations on attorney disclosure. 6
Application of the privilege in-house Privilege generally applies in-house Legal advice versus business advice. Communications which provide legal advice are protected, but those which provide business advice are not protected. 7
Federal case standard for attorneyclient privilege Upjohn Co. v. United States Dealt with communications between inhouse counsel and lower level employees, as opposed to management only. 8
Federal case standard for attorneyclient privilege (continued) Five Upjohn factors (1) Information necessary for legal advice or ordered to be communicated. 9
Federal case standard for attorneyclient privilege (continued) Five Upjohn factors (2) Information not available from upper level management. 10
Federal case standard for attorneyclient privilege (continued) Five Upjohn factors (3) The communications concerned matters within the scope of the duties of the employees. 11
Federal case standard for attorneyclient privilege (continued) Five Upjohn factors (4) Employees aware of purpose of questioning. 12
Federal case standard for attorneyclient privilege (continued) Five Upjohn factors (5) Confidentiality of communications. 13
Privilege and in-house issues Audits Internal audits: may create privilege. External audits: no privilege. 14
Privilege and in-house issues (continued) Corporate investigations Privilege does not apply without intention. Lawyer investigating and anticipating litigation. 15
Privilege and in-house issues (continued) Insurers If a communication is made for the purpose of obtaining or providing legal advice, generally such communication will be privileged. 16
Privilege and in-house issues (continued) Governmental agencies At the federal level, waiver to one may mean waiver to all. Waived to more than just governmental agencies. 17
Privilege and in-house issues (continued) How to preserve privilege Separate business advice from legal advice. In-house counsel should specify nature of communications. 18
Privilege and in-house issues (continued) How to preserve privilege Need to know basis. Avoid inadvertent disclosure. 19
Privilege and in-house issues (continued) How to preserve privilege Remind employees of in-house counsel s role. Employees may need individual counsel. 20
MAINTAINING THE ATTORNEY-CLIENT PRIVILEGE DURING COMMUNICATIONS BETWEEN IN-HOUSE COUNSEL AND CORPORATE EMPLOYEES David J. Bright Direct Number: (515) 286-7015 Facsimile: (515) 286-7050 E-Mail: djbright@nyemaster.com 625 First Street SE, Suite 400 Cedar Rapids, IA 52401 (319) 286-7000 Attorneys at Law Offices in Des Moines, Ames and Cedar Rapids