Leading Age MI – 2023 Leadership Institute

Transcript:Leading Age MI – 2023 Leadership Institute:
Leading Age MI – 2023 Leadership Institute Understanding the Attorney-Client Privilege and the Michigan Professional Practice Review Privilege Presented by Jennifer Beidel, Jonathan Feld, and Kathleen Reed August 9, 2023 Understanding the Attorney-Client Privilege Introduction Increased concerns about scope of attorney-client privilege Greater frequency of whistleblowers leading to internal and government investigations: Financial fraud Health care fraud Gender/sexual harassment cases Data breach DOJ expansion of potential benefits for voluntary disclosure and corporate cooperation High profile cases involving crime fraud exception The Attorney-Client Privilege, Defined Elements of Attorney/Client Privilege holder of the privilege is or sought to become a client; communication made to a lawyer or person acting as one; communication relates to a fact of which the attorney was informed by his client, without the presence of strangers; primarily to secure legal advice; not for the purpose of committing a crime or tort; and privilege claimed and not waived by the client. United States v. United Shoe Mach. Corp., 89 F. Supp. 357 (D. Mass. 1950) How to establish: party seeking to assert privilege has burden of establishing attorney-client relationship Protects confidential communications between attorney and client related to legal advice from disclosure to third parties Multi-Purpose Communications Business advice and communications: Multi-Purpose Communications Merely considering business issues in rendering legal advice “does not vitiate the attorney-client privilege.” Picard Chem. Profit Sharing Plan v. Perrigo Co., 951 F. Supp. 679 (W.D. Mich. 1996) In January, after oral argument, Supreme Court dismissal of certiorari In re Grand Jury (Jan. 2023) on standard for establishing multipurpose communications are privileged Majority standard: primary purpose of the communication is for legal advice Then Judge Kavanaugh (D.C. Circuit) explained “primary” meant that “one of the significant purposes” of the communication was to seek legal advice In-house counsel: mixed business/legal advice Communications between in-house counsel and employees, officers or directors may be privileged depending on the circumstances Memo drafted by in-house lawyer regarding contract negotiations with another company and the company’s potential legal liability was a confidential communication, not merely a business communication. Exxon Mobil Corp. v. Hill, 2014 U.S. App. LEXIS 8495, 2 (5th Cir. 2014) Establishing the Attorney-Client Privilege Who is the client? Individual employee Corporation or business entity Board of directors/subcommittee Ethical obligation of advising employees or third-party witness II. When does the privilege end? Continues after death of the client for individuals. Swidler-Berlin v. U.S., 524 U.S. 399 (1998) For organizations, ends