August 15 Meeting Attorney Client Privilege _ www.bit.ly/taiho123

General Overview of the Client Communication Privilege In order to establish the attorney-client communication privilege , there must be a: • Communication • between a Lawyer • and Clie

EFFECTIVE IN-HOUSE COMMUNICATIONS AND PRESERVING THE PRIVILEGES

Presented By: John Eldridge Haynes and Boone, LLP (713) 547-2229

PRIVILEGES (FRE 501)

• Attorney Client (Tx Rule 503)

• Work Product Doctrine (TRCP 192)

• Against Self-Incrimination (5 th Amendment)

• Husband – Wife (Tx Rule 504)

• Communications to Clergy (Tx Rule 505)

• FRE 501

General Overview of the Client Communication Privilege

In order to establish the attorney-client

communication privilege , there must be a:

• Communication

• between a Lawyer

• and Client

• that was Confidential

• and remained Confidential

Who is the Lawyer?

Who is the Lawyer?

Who is the Lawyer?

• Rule 503 of the Texas Rules of Evidence:

A “lawyer” is a person authorized, or

reasonably believed by the client to be

authorized, to engage in the practice of law in any state or nation.

Who is the Lawyer?

Who is the Lawyer?

• A “representative of the lawyer” is:

(A) one employed by the lawyer to assist the

lawyer in the rendition of professional legal

services; or

(B) an accountant who is reasonably necessary for the lawyer’s rendition of professional legal services

In-House Counsel as Client

or Attorney

Business Advice versus

Legal Advice

• Where in-house counsel is also involved in the

business matters of the company, e.g as an

officer of the company, the company must show that the advice was given when the lawyer was wearing the lawyer’s hat

Negotiating a Contract

• When in-house counsel is negotiating a contract,

privilege not likely

• Negotiation is viewed more as business function

• Case specific decisions by courts

• Use outside counsel or have a business person

involved in the negotiation

• Prepare a memo describing roles of the

participants

Who is the Client?

Who is the Client?

• Rule 503 of the Texas Rules of Evidence

A “client” is a person, public officer, or

corporation, association, or other organization

or entity who is rendered professional legal services by a lawyer, or who consults a lawyer with a view to obtaining professional legal

services from that lawyer.

Who is the Client?

• A “representative of the client” is:

(A) a person having authority to obtain

professional legal services, or to act on advice thereby rendered, on behalf of the client; or

(B) any other person who, for the purpose of

effectuating legal representation for the client, makes or receives a confidential

communication while acting in the scope of

employment for the client.

Not all Corporate Employees

are “Clients”

* Corporate clients can share their knowledge of legal advice under some circumstances with other

employees.

* Dissemination of legal advice beyond those who

“need to know” may waive the privilege.

Corporate Employees

– “Control Group” rejected by Supreme Court –

– Texas Rule 503

– “Subject-matter Test”

• The Control Group test was arbitrary.

• “Need to Know” is appropriate guideline

Consultants and Independent Contractors

• Is disclosure of attorney client communication

“reasonably necessary” in order to inform the

attorney of all pertinent facts.

• Insurance Agent

• Accountant

• Appraiser

Inter-Corporate Communications

• Legal advice disseminated to wholly owned

subsidiaries held not to be a waiver

• Parent corporation and subsidiaries share a unity

of interest such that the parent (as well as the

subsidiary) is the ‘client’ for purposes of the

attorney-client privilege

• Documents from subsidiary’s in-house counsel to

parent’s in-house counsel, prepared for the

purpose of obtaining legal advice or opinions, are

Common Interests

• “Joint Defense” privilege

• Rule 503 of the Texas Rules of Evidence:

Confidential communications between a client

or lawyer and another lawyer representing a party in a pending action and concerning a

matter of common interest.

Common Interests

(Joint clients who later become adverse)

• Rule 503 of the Texas Rules of Evidence

provides that “there is no privilege as to

communications relevant to a matter of

common interest between or among two or

more clients if the communication was made by any of them to a lawyer retained or consulted in common, when offered in an action between or among any of the clients.”

What is a Confidential

Communication?

• Rule 503 of the Texas Rules of Evidence:

A communication is “confidential” if not

intended to be disclosed to third persons other than those to whom disclosure is made in

furtherance of the rendition of professional

legal services to the client or those reasonably necessary for the transmission of the

Confidential Communication?

• Communications often privileged if joint

defense, but not if business enterprise

• Former employees - - may reveal information

to others (e.g., new employer); treated as failed waiver

• Communications with auditors generally not

privileged

What Communications are

Privileged?

• Non-Confidential Information Provided to

Attorney

– Information that is not privileged when communicated to

the attorney does not become privileged merely because it

is communicated to an attorney

• Privilege Attaches to the Communication Itself

What Communications are

Privileged?

• Transacting the General Business of the

Company

– Routine, non-privileged communications

between employees transacting the general

business of the company do not attain

privileged status merely because an attorney is

“copied” on the correspondence or memoranda

What Communications are

Privileged?

• Client’s Recording of Facts

• Business Advice vs Legal Advice

• Legal Advice Discussed by Clients

• Patent Work

•Drafts prepared by counsel or circulated to

counsel for legal advice are privileged if for the purpose of giving or obtaining legal advice.

• If draft is provided to a third party, no

privilege.

What Communications are

Privileged?

The Work Product Exemption

• Rule 192.5 of the Texas Rules of Civil

Procedure defines Work Product:

(1) Material prepared or mental impressions developed in anticipation of litigation or for trial by a party or a party’s representatives, including the party’s attorneys, consultants, sureties, indemnitors, employees, or agents;

The Work Product Exemption

• Rule 192.5

Or

(2) a communication made in anticipation of

litigation or for trial between a party and the

party’s representatives or among a party’s

representatives, including the party’s attorneys, consultants, sureties, indemnitors, insurers,

Examples of Documents that are

Not Work Product

• Topic outline prepared by in-house counsel for

an oral presentation

• Consultant documents submitted to regulatory

authorities

• Materials prepared in the ordinary course of

business or pursuant to public requirements

unrelated to litigation.

Examples of Documents that are

Not Work Product

• Draft contract prepared by transactional

attorney

• Internal memorandum from one attorney to

another reviewing transaction for client

• Attorney notes made before litigation was

contemplated

Examples of Documents that are

Not Work Product

• Litigation Disclosures concerning experts, trial

witnesses, witness statements, contentions

• Trial exhibits

• Identification of potential parties and potential

witnesses

• Photographs to be offered into evidence

Rule 192.5 of the Texas Rules of Civil Proc.

Examples of Work Product

• Attorney notes from interview of witness in

anticipation of litigation or in connection with litigation

• Documents prepared in connection with

litigation that has concluded.

Ethical Issues – Texas Disciplinary

Rule 1.05

• “Confidential Information” includes

“privileged information”

• Rule refers to FRE 501, TRE 503

• Lawyer obligated not to reveal confidential

information, except:

– when authorized by client

– when client consents

– to client representatives

Electronic Data and Communications

• Same rules apply as to paper documents

• Identify attorneys

• Identify all recipients

• Be careful to designate as confidential

• Encryption

• Limit distribution

Protecting E-mails

• Use an appropriate subject line referencing the

litigation or subject matter

• Write your emails like you would a letter

instead of like a phone call

• If your client’s email could be read out of

context, clarify your client’s email in your

response

Protecting Emails, continued

• Use language that clearly shows you are

providing advice or responding to a request for advice

• Limit the dissemination of your email and

advise your client not to forward emails from attorneys to non-attorneys or to non-employees.

• Be careful to reply to the correct email, not the

Waiver of the Privilege

• Intent -

– If communication was intended to be communicated to a third

party, it will not be protected by the attorney-client privilege

• Voluntary/Consensual Disclosure

-– if the holder of the privilege, i.e a client representative, voluntarily

discloses or consents to disclosure of any significant part of a

communication, the privilege is waived

• Subject Matter v Communication

-– Disclosing a subject discussed with an attorney does not waive the

privilege; waiver occurs if the person discloses part of the

Electronic Discovery

• New Federal Rules (12/06) will address some

issues on privilege (Rules 26, 16)

• Costs of E-Discovery can be huge

• Parties should agree about privilege claims

(e.g., that inadvertent disclosure can be

reviewed)

Making it Easier to Claim

Privilege

• Inform your clients of the rules

• Mark your privileged communications as

privileged.

• Don’t mark your non-privileged

communications as privileged

• Make sure you include a signature block with

information that shows you are an attorney

Internal Investigations

• Highly sensitive information – need to establish

privilege and work product protections

• Voluntary waiver by corporations is more

frequent (DOJ guidelines regarding

corporation)

• Waivers can lead to private litigation and

“torched” employees

International Issues

• Privileges not as robust in most other countries

• Europe accords protections primarily to

outside counsel, not inside, but this could be

changing

• Difficult for in-house counsel to count on

confidentiality in Europe