Essay About Attorney Client Privilege

become much harsher and (ii) employers are being advised to terminate employees or not provide them with legal counsel to support their actions. This practice has led to question the innocent until proven guilty doctrine and has caused hardships for those accused of but not proven guilty of a crime.

Both the Federal Legislature and the American Bar Association are attempting to temper the government and its attempt to curtail “Attorney Client Privilege. ” A final adjudication as to the what will and will not be considered “privilege” as it relates to the information covered under the basic Attorney-Client Privilege needs to be addressed quickly; if not, the very core of the attorney-client relationship will deteriorate and the confidence of the two (2) parties will be shaken. (a). Upjohn Co. US, 449 US 383; 101S Ct677 (1981) (b). USA Patriot Act of 2001 and the USA Patriot Act Improvement and Reauthorization Act of 2005 ( c). Sarbanes Oxley Act of 2002 also known as the Public Company Accounting Reform and Investor Protection Act of 2002 The following attempts to provide some information and guidelines as to how and what everyone can do to ensure the “privilege” status of that information transmitted between the counsel and the executive/senior management, and employees of a corporation.

Remember the best argument in favor of “privilege” protection is that it does not prevent anyone from discovering all the facts necessary to make a case; it simply requires the government or civil litigants to do their own work to prove their case, so as to not deprive the client of its ability to communicate openly with counsel. Counsel and or Paralegals during meetings,

investigations, interviews with employees, senior staff meetings, staff meetings, etc. ake notes; these plus draft documents, correspondence and legal theories are all to be considered “privilege. ” The confidentiality of “privilege” works both ways, individuals providing information to counsel is also considered “privileged. ” The corporate umbrella; just like a regular umbrella, is used for protection. Under the corporate umbrella the corporation obtains protection from the illegal acts of its management and employees; corporations do not want this protection to be pierced or torn.

A corporation made up of a board of directors and officers is responsible for making those decisions necessary to direct the actions of its employees. Prior to a corporation or its employees taking action, it usually requires an informed legal advice. Legal direction may be either taken or dismissed; the point is that in order to provide an informed decision counsel and its direct reports are provided with confidential information. Counsel reviews the confidential information and provides an opinion on the issue.

This opinion may or may not support the legality of a matter and the company may or may not act because of the information provided, however, the confidentiality of the initial information provided, the attorney’s thought process, as well as all reasoning associated with this process needed to be retained as confidential. Particularly when a corporation has in-house counsel, counsel may wear two hats. Not only is the counsel required to provide legal information, some with expert business sense, is asked to provide operational and directional advice.

Corporate counsel usually holds more than one title; (in addition to those of General Counsel, Corporate Counsel, Associate Corporate Counsel, etc. ) they may also

hold the title of an Officer of the company (e. g. Executive Vice President, Senior Vice President, Vice President, Secretary, etc. ) Counsel needs to be able to separate these titles to ensure that the General Counsel’s Work Product and Attorney-Client Privilege rights are not waived or “required” to be waived by accident.

The “privilege” does not protect the counsel or corporation from having to produce information under “discovery;” it just protects the “consult”. The application of “privilege protection” to a conversation, documents or written communication between counsel and the corporation when challenged becomes somewhat of a legal twist, in that, the party claiming the “privilege” has the Burden of Proof, not the party requesting disclosure of the “privileged” information.

The following are required in order to ensure Counsel takes the appropriate steps necessary to protect Attorney-Client Privilege: 1. The corporation asserting the “privilege” must be the Counsel’s client. 2. The Counsel receiving the communication must be a practicing member of the bar or a subordinate of such a person. 3. The attorney to whom the communication is made must be acting as Counsel and not as a business person or business department representative. 4.

The communication must be made for the purpose of securing legal services or assistance, and not for the purpose of committing a crime or fraud. 5. The client must claim and not waive the privilege. 6. The communication must be made without non-client and non-essential third parties present (for example, communication could be made in a crowded restaurant, but not at a table with non clients around to overhear or it may be conducted as an e-mail exchange, but not if non-client, “unnecessary”

parties are copied or latter forwarded the email.

The following are some daily actions we can take in order to preserve “privilege. ” 1. The Corporate Legal Department should not place the words “attorney-client privileged” on every email, fax cover sheet, letter and document. Labeling alone will not create a “privilege. ” Over asserting “privilege” can weaken an argument over what should be properly excluded from discovery requests. The words “Legal Review Requested”, when sent from any employee to counsel, should only be placed on documents that requires a strictly legal review. 2.

When the legal department responds they might wish to consider adding the following: “In response to your request for a strictly legal response on this issue” or we may wish to use “In my capacity as legal counsel and or a legal representative” on issues containing a legal opinion. Also, we need to ensure that the distribution of the “privileged” work is limited solely to those parties intended to receive it in the client group. 3. Corporations need to attempt to segregate the “facts” from documents prepared for their clients that outlines legal strategies, draws inferences or conclusions.

The “privilege” does not protects facts from being produced – only counsel-client communications or legal impressions and work production in anticipation of litigation. Thus, once the privileged material is segregated, Counsel may be able to provide everything that is appropriate and necessary in response to a request for production of material, without waiving a client’s confidences or any rendered legal opinion. What is NOT memorialized cannot be produced. There are times when we reduce things to writing or send e-mails when a person-to-person discussion would be simpler.

. Corporations should educate their employees on what is and what is not privileged and may need to be produced in litigation matters. In addition, all employees must be aware that their counsel’s loyalty is to the corporation (not the companies executive management, senior management or the employees and therefore, counsel must report problems that are not resolved up the line of management, including up to the Board of Directors when management is not responsive.

Work Product is recognized in American civil procedure, through the work product doctrine. The “Work Product Doctrine” is an independent source of immunity from discovery. Under the Work Product Doctrine “tangible material or its intangible equivalent” that is collected or prepared in anticipation of litigation is not discoverable and may be shielded from discovery by a Protective Order, unless the party seeking discovery can demonstrate that the sought facts can only be obtained through discovery and that those facts are indispensable for a claim.

The Work Product Doctrine also protects materials prepared by agents for Counsel. There are three requirements of federal law for the applicability of Work Product Doctrine and they are: (i) the item to be protected must be a tangible thing; (ii) it must have been prepared in anticipation of litigation and/or the mere possibility of litigation and (iii) it must have been prepared by an attorney or its representative.

If a party prepares a document in the ordinary course of business, it will not be protected even if the party is aware that the document might also be useful in the event of litigation. Work product protection applies only to material “that would not have been generated except for

the imminence of litigation. ” For example, a contractual review would not be considered “privileged” since it was not prepared in anticipation of imminent litigation. It is generally accepted that Work Product includes counsel and its epresentative’s statements, notes, reports, attorney’s personal recollections, mental impressions, views, strategy, conclusions, notes, memoranda and other materials created in the course of preparing for litigation. Where the court requires disclosure, because information can not be obtained from any other source, the Work Product Doctrine still protects mental impressions of any attorney by redacting that part of the document containing the mental impressions The Work Product Doctrine is more inclusive than Attorney-Client Privilege.

Unlike the Attorney-Client Privilege, which includes communications between an attorney and/or his/her Paralegal and a client, it includes materials prepared by persons other than the attorney. The materials may have been prepared with an eye towards the realistic possibility of impending litigation. The Work Product Doctrine includes, but is not limited to someone else’s preparation of interrogatories, signed statements, memoranda, briefs, communications, mental impressions, conclusions, and opinions or legal theories.

The Work Product Doctrine although more inclusive is less powerful than the Attorney-Client Privilege because it is not a “privilege” and therefore may be overcome by a showing of necessity. The Florida Supreme Court in Southern Bell Telephone & Telegraph v Deason, issues what they refer to as the “subject matter test. ” The counsel should remember the following when trying to determine what may or may not fall under either Attorney Client Privilege or the Work Product Doctrine. 1.

The communication would not have been made but for the contemplation of legal action; 2. The employee making the communication

did so at the direction of his or her corporate superior; 3. The superior made the request of the employee as part of the corporation’s effort to obtain legal advice or services; 4. The content of the communication relates to the legal services being rendered and on subject matter of the communication is within the scope of the employee’s duties; and 5.

The communications is not disseminated beyond the persons who, because of the corporate structure, need to know its contents In summary, the corporation’s legal department should remember that anything that is place on paper may be required to be produced during the litigation process. Therefore, they should ensure that opinions are in fact form, not conjecture or supposition, and whenever possible they are provided orally; however, when necessary they are reduced to writing and the written form (either electronic or paper format) is factual.