The interesting part of the two matters I will be addressing here is that an individual almost has to know prior to a suit being filed that litigation may occur. Discussions and written matter, all correspondence, emails and documents exchanged between parties should be prepared with a thought to potential litigation. Attorney Client Privilege and the Work Product Doctrine are two separate and distinct issues and should be treated within the legal world as separate disclosures.
Attorney Client Privilege, which originated in Roman and canon law, has evolved into a recognized judicial doctrine and is necessary in order to provide clients with access to effective, well informed counsel. In Upjohn Co. v US the Supreme Court the Court stated that “Its purpose is to encourage full and frank communication between attorneys and their clients and thereby promote broader public interests in the observance of law and administration of justice. ”(a)
However, since the passage of the Patriot Act (b) (terrorism, September 11, 2001), and the various corporate scandals leading to the Sarbanes Oxley Act(c) and the Securities and Exchange Commission (2001 Seaboard Report) and the fall out from such companies as Enron, WorldCom the federal, state and regulatory offices of the government are attempting to pierce the Attorney Client Privilege. The government has attempted through two (2) separate practices to tear into what was once considered a “privilege” that was recognized and adhered to throughout the US.
The two (2) issues we know face are (i) attorneys are being required to “waive” attorney client privilege in order to appear...
cooperative. Failure to waive has resulted in the court stipulating that the attorney was being uncooperative; thus penalties have 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
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