From the first time the problem occurs in a matter, be completely acquainted with the scope of the privilege, and not when it is too late.
Regardless of the strength of their case, piercing the attorney-client privilege could be one of the top concerns of opposing counsel. The protection covers confidential correspondence made between the client and the lawyer to “encourage full and frank communication” for the purpose of obtaining or offering legal assistance. The United States v. Zolin, 491 U.S. at 562, 109 S.Ct., 491 U.S. at 562, 109 S.Ct. and thereby promoting greater public interests in the observance of law and administration of justice. 2619 (quoting 449 U.S. 383, 389, 101 S.Ct. 677, 66 L.Ed.2d 584 (1981)) Upjohn Co. v. United States). However, the right does not apply, it may be waived, or exceptions may exist. The role of the lawyer on issues relating to potentially protected records affects his or her reputation with the court, so from the first time the problem occurs in a matter, and not when it is too late, it is advisable to be thoroughly acquainted with the extent of the privilege.
Is it all a privilege?
Communications that do not ask or offer legal advice to or from a lawyer are not privileged. For example, an attorney working as a business agent would not qualify for the attorney-client privilege to be enforced. In-house attorneys frequently have business-oriented responsibilities, and often business and legal advice are so mixed that there might not be a clean separation. Compare Notice Funding Corp. v. Invest of Bobian. Co., CIV No. 93. 7427 (DAB), 1995 WL 662402, (S.D.N.Y. Nov. 9, 1995) (Privileged as counsel addressed legal and financial, commercial and tactical problems with Georgia-Pac in connection with offering legal advice and working as a lawyer). Corp. v. Roofing GAF Mfg. Corp., CIV No. 93. 5125 (RPP), 1996 WL 29392, (25 January 1996, SDNY) (Not privileged where company lawyer provided legal advice to management that did not trump the business-oriented aspect of negotiating the agreement). To understand the difference, officers, directors, and staff must rely on in-house counsel. For the right to apply, the overriding object of the communications should be to obtain legal services. Copying in-house communications lawyers would not make them privileged.
The Right Was Waived?
A waiver can arise from a range of behavior that does not preserve the confidentiality of the correspondence. As a matter of law, waiver can result in either voluntary or inadvertent disclosure to external or non-covered recipients, professional advisors beyond the privilege, and experts and consultants. For several purposes, e-mails will waive the right and appear as displays of litigation: because of their high volume; because of swift and hasty responses sent without reflection; as emotional, subjective or reactive responses; based on the ease of “reply all” and transmission; and given their informal existence and permanence. Any and all of these will later cause issues. A waiver invitation is also abundant and equally rife with social media.
Does an exception exist?
The reasons for safeguarding the ‘confidences of wrongdoers” ceas[e] to work . Zolin, 491 U.S. at 562-63, 109 S.Ct. Where the desired guidance applies not to past wrongdoing, but to potential wrongdoing. Uh. 2619. [T]he ‘Seal of Concealment,’… “Communications “made for the purpose of getting advice for the commission of a fraud or crime” do not cover between lawyer and client.” Id. at 563, 109 S.Ct. Uh. 2619. “The innocence of the lawyers does not maintain the privilege of the attorney-client against the exception of crime-fraud.” U.S. v. Chen, 99 F.3d 1495, 1504 (9th Cir. 1996); U.S. v. Doe, 429 F.3d 450, 4544 (3d Cir. 2005). The initial presumption of proof lies on the party who invokes the exemption for crime-fraud. U.S. v. Seidman BDO, LLP, 492 F. 3d 806, 818-818 (7th Cir. 2007). An clarification must then be shown by the party asserting the attorney-client privilege. Id.-Id.
“Through the increased use of camera analysis and decreased thresholds of proof, the scope of the crime-fraud exemption is increasingly being widened by the courts. The new movement towards turning what once was civil liability into possible criminal liability requires much greater implementation of the exception to crime-fraud simply by widening the categories of actions deemed ‘criminal.’ The Crime-Fraud Exception to the Right of Attorney-Client, 32 No. 2 Corp Couns Quarterly ART 5 (2016). See WL 1815975 (Fed. Cir. 2011) for Micron Technology, Inc. v. Rambus, Inc., 98 U.S.P.Q.2d 1693, 2011 (destruction of evidence in patent infringement case).
Checklist on Best Practices
Other than in writing, can correspondence be achieved? Is the written material something that could be perceived as inappropriate? Who are the beneficiaries and why do they have them? Is any of these appropriate for the problem?
Clearly describe whether obtaining legal advice or giving it.
Only outside counsel should retain and collaborate during litigation with consultants. Retention is superior to retention of corporate management by in-house counsel.
Document separate business advice
Explain boundaries of privilege and waiver at the outset and in a matter to the customer
- Just preserve privileged records in attorney archives, where possible,
- If it was released in the media, will I be OK with this email?