Attorney-Client Privilege Tips for In-house Counsel Christos Yatrakis Arrow Electronics, Inc. John A. Basinger Saul Ewing LLP July 19, 2017
Attorney-Client Privilege: The Basics Elements An attorney-client relationship - Advice or assistance is sought from an attorney - Relating to the attorney s professional competence. Legal advice requested or delivered Communicated in confidence 2
Attorney-Client Privilege: The Basics Privilege belongs to client Often invoked by attorney Client controls waiver Applies to client and attorney Communication both ways Applies to all communications, not just those in anticipation of litigation 3
Corporation as the Client Who is within the privilege bubble Control Group test Privilege in Practice Illinois, Maine, New Hampshire, Oklahoma, Rhode Island, South Dakota, Hawaii, Alaska Subject Matter /Upjohn test Were the communications made by employees with information necessary for the corporation to obtain legal advice or to employees with a need to know the advice or necessary to provide information? 4
Who is the Client? Privilege in Practice Employees may or may not be clients Attorney has a duty to explain who is a client Non-attorney s reasonable expectation determines duty of confidentiality 5
Privilege in Practice Company or Employee as Client Creating and preserving a corporate privilege: Upjohn or Corporate Miranda Warning Representation is of corporation not employee Purpose of investigation is to provide advice to corporation Corporation may decide to waive privilege or divulge information (regardless of employee preference) 6
Role of the In-House Attorney Legal or Business Burden is on the party asserting the privilege Privilege in Practice Must be a clear showing that communications were for legal advice Business advice is not covered Copying in-house counsel on emails does not make them privileged 7
What is Privileged? Communicated in Confidence Broad distribution can defeat a claim of privilege Beyond the group with a need to know Subsequent dissemination can be a waiver of privilege Common problem in the email era Privilege in Practice 8
Waiver What is Privileged? Disclosure to third parties But common interest may preserve privilege Failure to assert privilege in a timely manner Advice of counsel defense Scope depends on nature of waiver Privilege in Practice After sale or takeover, new management controls 9
What is Privileged? Privilege in Practice Waiver: Practical Advice Who Control with whom you communicate, and who is present What Control what is discussed Where Control the location of communications and documentation How Label communications appropriately 10
Jurisdictional Issues State laws: most significant relationship test Federal courts: apply state laws to state-law claims, federal common law to federal claims Non-US jurisdictions may not recognize privilege, particularly for in-house counsel Common-law or civil law Availability of discovery Strategic Considerations 11
Work Product Protection Not necessary for attorney-client privilege Materials prepared in anticipation of litigation or for trial Broader but less absolute than attorney-client privilege Implicates duty to preserve 12
John A. Basinger, Partner, Saul Ewing LLP Newark Office One Riverfront Plaza Newark, New Jersey 07102-5426 New York Office 555 Fifth Avenue New York, New York 10017 Phone: (973) 286-6724 Fax: (973) 286-6824 Email: jbasinger@saul.com John Basinger is a litigator from Saul Ewing who helps clients resolve contract and business tort, intellectual property, product and premises liability, construction defect, criminal and civil rights disputes, and advises organizations in corporate compliance and government investigations. John litigates jury and bench trials and arbitration proceedings on behalf of domestic and foreign entities, which has included guiding clients from the United Kingdom, Germany, Italy, the Czech Republic, Russia, Turkey, Japan, China, Australia, Papua New Guinea, Mexico and Brazil, among others, through dispute resolution in the U.S. and before international tribunals. Education J.D., cum laude, Harvard Law School, 1996 B.A., summa cum laude, University of Oklahoma, 1992 Bar Admissions California, New Jersey, New York and Texas 13