Privileged Communications: An Overview and

Transcript:Privileged Communications: An Overview and:
Privileged Communications: An Overview and Practical Guide Prepared for the Association of Corporate Counsel, Dallas-Fort Worth By Clifford Thau and Marisa Antos-Fallon July 2020 Presentation Summary Overview Introduction to Attorney-Client Privilege The Special Role of In-House Counsel Waivers of Attorney-Client Privilege Best Practices for Preserving Privilege Guidance for In-House Counsel Guidance for Other Employees Real Life Situations Internal Investigations Negotiating Transactions Sharing Information Outside the Company Communications with Affiliates What is Covered by Attorney-Client Privilege? Introduction The Attorney-Client privilege covers: Communications, Made between privileged persons (i.e., attorney and client), In confidence, For the purpose of obtaining or providing legal advice. Why is the Attorney-Client Privilege Important? Introduction Privilege exists to encourage complete and honest communications between an attorney and client in the most sensitive and difficult situations. The Attorney-Client privilege enables these communications to remain confidential. If the privilege does not attach, or is waived: Such communications can be used in litigation by an adversary or in an investigation by the government. A litigation adversary or the government may call the author or recipients to give testimony regarding the communication in a deposition, witness interview, or at trial. The communications could be published in the press or otherwise made public. What Does Attorney-Client Privilege Protect? Introduction Limited to legal (as opposed to business) advice. Communications must be primarily or predominantly of a legal (rather than a business or personal) character. Application of the privilege is limited to communications and does not protect the underlying facts. There should be an expectation that the advice will not be disclosed to others. The Special Role of In-House Counsel Introduction In theory, the attorney-client privilege and work product doctrine apply without distinction to in-house counsel. However, in-house counsel often provides advice that contains legal and business elements, and often wear multiple hats. In-house counsel, in practice, may face a tougher burden of showing that their advice was legal in nature rather than purely business-related. The Special Role of In-House Counsel Introduction Distinguishing legal advice from business advice sounds more straightforward than it is in practice. Factors to consider: The attorney’s role – i.e., how and why did in-house counsel become involved? To negotiate a business transaction? Because litigation is anticipated? What other offices does in-house counsel hold? Did in-house counsel conduct or convey any legal analysis or strategy? What will not suffice: The mere physical presence of in-house counsel during a conversation. Merely copying