What Keeps You Up at Night? Issues of Fraud and Abuse Compliance Series Keeping In House Out of the Doghouse Invoking the Attorney- Client Privilege 37 Offices in 18 Countries
2 Keeping In House Out of the Doghouse Invoking the Attorney-Client Privilege
Today s Host David W. Grauer Chair, Squire Sanders Healthcare Practice T +1 614 365 2786 david.grauer@squiresanders.com 3
Today s Speakers Thomas E. Zeno T +1 513 361 1202 thomas.zeno@squiresanders.com Emily E. Root T +1 614 365 2803 emily.root@squiresanders.com Elizabeth E. Trende T +1 614 365 2728 elizabeth.trende@squiresanders.com 4
5 Importance of the Attorney-Client Privilege
Scenario #1 A medical director sends an email to a hospital employee negotiating physician compensation, with a copy to in-house counsel who is not involved in the negotiations. The email says that because the physician refers lots of patients to the hospital, the medical director thinks the hospital should pay the physician more than the current proposal. The email subject says Attorney-Client Privilege. Can the hospital claim the email is covered by the attorney-client privilege? 6
Caveat! The attorney-client privilege is a complex and evolving doctrine. Detailed analysis Fact-specific Differs across jurisdictions 7
What Is Covered by Attorney-Client Privilege? 1. Communication 2. Attorney 3. Client 4. Providing Legal Advice 5. Expectation of Confidentiality 8
What is Protected by the Work Product Doctrine? 1. Documents 2. Prepared by or for an attorney 3. In anticipation of litigation 9
Don t Lose It! Practice Tip Don t forward attorney emails outside the organization Don t forward attorney emails to employees with no need to know Make Board presentations in executive session Enforce social media and public statement policies 10
Copying In House Counsel on Emails 11 Copying in house counsel on an email or letter does not, by itself, make the email privileged. Practice Tip: Include explicit request for legal advice (Can we pay the physician more because?) Reference on-going legal matter in the email (For your review of the contract ) Only include attorneys who are handling the legal matter
When In House Counsel Also Has a Business Role Many in house counsel also have a business role (Vice President, Chief Operating Officer, etc.) Key issue is whether the communication: Seeks legal advice OR Relates to the business role 12
Privilege and the Compliance Officer Not automatically privileged Practice Tip: Chief Compliance Officer is Part of the General Counsel office OR Acting under the direction of counsel Explicit reference to legal purposes, rather than business purposes 13
The Privilege and Consultants Not automatically privileged Practice Tip: Counsel retains the consultant Document that the purpose of the consultant s work is to analyze data regarding identified legal issues 14
The Attorney-Client Privilege Label Is a best practice because it is evidence of confidentiality and seeking legal advice Also assists in identifying privileged documents in subsequent review of documents that may be produced BUT it does not make a document privileged that doesn t meet the criteria 15
Scenario #2 During an internal investigation into alleged improper Medicare billing by a provider group, in house and outside counsel jointly conduct an interview with the physician in charge of coding and billing. In the interview, the physician states that the group has identified problems with physician coding in the past but has not taken any action. The group waives the attorney-client privilege and settles with the government. The government then prosecutes the physician. Can the statement during the interview be used against the physician? 16
Who Can Waive the Privilege The Client owns (and can waive) the privilege In internal investigations, the company is the client not the individual being interviewed Individual cannot waive the company s privilege (generally) Company can waive the privilege, even if the waiver exposes the individual 17
Upjohn Warnings 18 Upjohn warnings should be given before interviews in furtherance of internal investigations Practice Tip: Provide (read) complete Upjohn warnings to an employee before interviewing the employee during an internal investigation. Have an associate with you to take notes of the interview. Document Upjohn warnings and answers in interviewer notes and interview summary.
Sample Upjohn Warnings I am a lawyer with the Company. I and my associate represent the Company. We represent only the Company. We do not represent you personally. We are conducting this interview to gather facts in order to provide legal advice to the Company. This interview is part of an investigation to determine the facts and circumstances about. Your communications with us are protected by the attorney client privilege. But the attorney client privilege belongs solely to the Company, not to you. That means the Company alone may decide to waive the attorney client privilege and reveal our discussion to third parties. The company alone may decide to waive the privilege and disclose our discussion to third parties such as federal or state agencies, without your permission or notice. 19
Sample Upjohn Warnings In order for this discussion to be protected, it must be kept in confidence. It is the Company s decision whether it will waive the privilege. In other words, with the exception of your own attorney, you may not disclose the substance of this interview to any third party, including other employees or anyone outside of the Company. You may discuss the facts of what happened, but you may not discuss this discussion. Do you have any questions? (Record answer (No) in memo) 20 Are you willing to proceed? (Record answer (Yes) in memo)
Scenario #3 Following preliminary results of a peer review committee meeting that indicates a physician is performing medically unnecessary procedures, in house counsel conducts an additional investigation and hires an outside consultant to review a sample of charts. The hospital concludes that selfdisclosure is necessary. What parts of the investigation process, if any, are privileged? 21
In House Counsel and Investigations Investigations undertaken in the ordinary course of business are generally not privileged. Practice Tip: Document privilege elements (requesting legal advice, identity of counsel, identity of employees acting for the company, etc.) 22
In House or Outside Counsel? Retain Outside Counsel When Appropriate Allegations about senior executives or general counsel s office Particularly serious or complex matters Unique skill sets or experience needed Matters where business role of general counsel could make privilege arguments complicated Practice Tip: Full support of outside counsel by general counsel and key executives is necessary to get the best advice and limit costs 23
The Golden Rule 24 Practice Tip: ALWAYS write like the government (and everyone else) is looking over your shoulder
Public Statements Practice Tip: 25 Get Legal Dept. to review public statements in advance Have designated spokespersons on sensitive issues, and inform employees of the protocol
Government Investigations Asserting the Privilege in Government Investigations Since the McNulty Memo in December 2006, DOJ has shown greater respect for the privilege. 26 The DOJ generally will not: Request waiver of the attorneyclient privilege or attorney work product protections. Hold against a company the decision to assert the attorneyclient privilege when deciding whether to prosecute.
The Disclosure Delicate balance between adequate disclosure and maintaining privilege. Purpose of disclosure Level of knowledge Type of activity to disclose (settlement, litigation, government investigation, internal investigation, etc.) Other public statements 27
Scenario #4 An employee forwards to the legal department some emails between human resources individuals, which the employee considers to be evidence of employment discrimination. The emails are later requested through the discovery process in subsequent litigation. Does the company have to produce the emails? 28
The Privilege and Pre-Existing Documents Cannot protect documents from discovery just by giving them to an attorney Documents (letters, emails, notes, etc.) that were not created as communications with an attorney or under the direction of an attorney Practice Tip: To avoid confusion, explicitly state in a document if it is prepared for or by counsel 29
Scenario #5 The Board of Directors, of which General Counsel is a member and Secretary, receives a presentation regarding the hospital s financial performance for the year, a proposal to make certain improvements to retain market share, and an update on an internal investigation by the compliance officer. The General Counsel also makes a presentation regarding on-going litigation, where the hospital is represented primarily by outside counsel. 30 Are all or part of the minutes of the meeting privileged?
Attorney as Board Member Key Issue What communications were made to seek or obtain legal advice and which were made for a business purpose? 31 Practice Tip: If the GC is a voting member of the Board or a committee, they may be more likely to be viewed as acting in their business capacity.
Steps Organizations Can Take to Protect Themselves 32
Training Training for individuals who are likely to be seeking legal advice Legal department should teach best practices as they interact with other employees 33
Best Practices Highlights Invoke the privilege early and often Write carefully never count on the privilege Explicitly ask for legal advice or reference ongoing legal issues when making sensitive communications Designate privileged emails or memos as Attorney-Client Privilege Send documents to only those people who need to see them Hire consultants for legal issues through counsel 34
35 Questions?
Thank You for Joining Our Webinar Join Us for Future Calls in This Series Addressing Enterprise Risk After the Affordable Care Act November 15, 2012 Corporate Integrity Agreements and Corporate Compliance Programs January, 2013 Proper Recordkeeping in a Heightened Enforcement Environment March, 2013 36
Thank You for Joining Our Webinar Contact us with other topics, questions or issues: Tom Zeno: thomas.zeno@squiresanders.com Emily Root: emily.root@squiresanders.com Emy Trende: elizabeth.trende@squiresanders.com 37
What Keeps You Up at Night? Issues of Fraud and Abuse Compliance Series 37 Offices in 18 Countries