An Ounce of Prevention: Effective Use of the Attorney/Client Privilege. Communication of facts to attorney to obtain legal advice and

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1 An Ounce of Prevention: Effective Use of the Attorney/Client Privilege 1) The Attorney Client Privilege: What is It? Communication of facts to attorney to obtain legal advice and Communication of legal advice by the attorney to the client Are not discoverable Or admissible in litigation 2) The Attorney Client Privilege: Why is it Important? Allows clients to discuss matters with their attorney openly and honestly so they may receive appropriate and ethical legal advice. Do not have to worry about your words being taken out of context or otherwise used against you in a later legal proceeding. 3) What Is Not Covered By The Attorney Client Privilege? The fact that you consulted with an attorney Most conversations that occur without your attorney present Any written communications that are not to or from your attorney Copying your attorney on a communication may be enough to establish the privilege, but not always. It is easier to argue the privilege applies to communications specifically directed to your attorney. At the very least, indicate in the document that the attorney is being copied at his or her request. Communicating facts or documents (that already exist) to your attorney, does not mean you cannot later be questioned about those facts or documents; the privilege only protects your discussion with your attorney about those facts and documents. Communications in the furtherance of a crime or fraud.

2 4) Whose Privilege is it? The Company is the client, so it is the Company that controls the privilege. Only the Company can waive the privilege. However a Company representative, acting in the scope of his or her employment, may be able to intentionally or inadvertently waive the privilege on behalf of the Company. Anything told to the Company s attorney by an employee is not privileged vis-à-vis the Company. Thus if an employee tells the Company s attorney he did something wrong, the employee cannot insist that the attorney not share that information with management. 5) What Constitutes a Waiver of the Attorney Client Privilege? Showing or sharing a privileged document to a third party (including other employees at the Company who are not in management and responsible for the matter or who otherwise do not have a need to know). Be careful about who is copied on a communication that is intended to be privileged. Be careful to whom you forward a privileged communication you received from the Company s lawyer. Telling a third party about what your attorney said. Inadvertent disclosures may be a waiver of the privilege especially if reasonable steps were not taken to prevent disclosure or to retrieve the privileged communication. 6) May a conversation between non-lawyer corporate employees ever be privileged? It is possible the conversation will be privileged if the dominant intent of the communication among the non-lawyers is to prepare to seek legal advice on behalf of the Company (e.g., a pre-meeting), and it is clear that seeking legal advice is the primary purpose of the communication (which should be reflected in detail on any documentation produced as part of the conversation).

3 Likewise, a discussion between non-lawyer corporate employees may still be protected by the attorney-client privilege if the primary purpose is for one employee to inform the other employee about the legal advice given by the attorney and both employees have a legitimate business need to know. It is not enough to just assert that legal advice was discussed in the course of the communication more detail about the legal advice (e.g., who gave it, who received it) may be needed to establish the applicability of the attorney-client privilege. 7) An Employee s to His Own Attorney: Privileged? May not be privileged if The employee uses the Company s computer system to send the e- mail, The Company has a policy that establishes no expectation of privacy and that the Company owns all information on the system, The Employee is aware that the Company monitors s on the system, and The Company s policy bans use of the system to send and receive personal s. 8) Protecting Workplace Investigation Documentation Wal-Mart Case Investigation materials are part of an employee s personnel file and must be shared with the employee within 10 days following written request. Will involving counsel in the investigation, and/or preparing investigation materials at counsel s request, prevent disclosure of the investigation materials because of the attorney client privilege? Possibly, but you should prepare the documentation assuming the information will have to be disclosed. Also more often than not you need to disclose the documentation to confirm that you have properly investigated the matter and took appropriate action.

4 9) Are the rules the same when managers are working with In-House Counsel? The primary purpose of the communication must be legal. Try to separate legal versus business communications (e.g., in an acquisition, advice on legal risks associated with an environmental matter is legal in nature while input on negotiation strategy is more of a business communication). Have written communications reflect the purpose is for legal advice. Inside counsel should use general counsel or attorney title when working on legal matters. Keep in mind the other Things to Remember as outlined below. 10) Things to Remember If you anticipate having an internal discussion that might be problematic if repeated in litigation later on, involve your attorney in the discussion so that the privilege applies. Understand that any discussion of the employee or the case outside of the presence of the Company s lawyer will likely be discoverable. Therefore, once in litigation, or if you receive a threat of litigation, be very careful about what you talk about if you discuss the employee or the case without your attorney participating in the discussion. Do not put anything in writing about the case without you attorney s knowledge and approval. If your attorney sends you a document, do not forward it on to others without copying the attorney (again the document also must only be shared with those in the organization who are directly responsible for the matter). Do not describe the legal advice you received in a non-privileged discussion or a document such as a memo to file placed in the employee s personnel file. Doing so may constitute a waiver of the attorney-client privilege. Also you do not want the reader focusing on the fact that you sought out legal counsel There may be times when the fact that you sought out legal counsel might be important to your defense, e.g., to establish you acted in

5 good faith for purposes of the Fair Labor Standards Act, but remember the Company can always waive the attorney client privilege if it thinks it would be advantageous to do so. Label any documents you want to attempt to protect though the attorney client privilege: Confidential: Protected by the Attorney Client Privilege and when litigation is ongoing, any documents you prepare should include at the top: Prepared at request of counsel for review by counsel; protected by the attorney client privilege Written communications (including s and notes taken during meetings) discussing legal advice or the intent to seek legal advice about an issue should include enough information to establish that legal advice was discussed or that the intent to seek legal advice existed. 11) Departing Employees Once an employee leaves your employment, any conversation between your attorney and that (former) employee is no longer privileged. Let your attorney know before the employee s last day of work so the attorney can, if necessary, speak with the employee before his or her employment ends to attempt to have the discussion protected by the attorney client privilege. 12) Case Scenario An employee who is pro-union has been in and out of work due to an alleged workplace injury. When back at work, the employee has restrictions in place that essentially excuses the employee from performing the most difficult work assignments. Other employees are complaining about the employee not carrying her share of the workload. Some think that the employee is lying when she says she hurt herself at work; some have suggested that she may not really be hurt. Two days ago she was asked by her manager to do something at work that was consistent with her work restrictions and she refused. Yesterday she produced a doctor s note indicating she has to work reduced hours. The manager wants to fire her for insubordination. The manager also argues that there is no way they can accommodate the part time schedule requested by the employee it will cause too much disruption in the department. You meet with the manager to review the situation. Should you take notes of your conversation with the manager? How might we take advantage of the attorney client privilege to sort out a strategy for dealing with this matter?

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