For The Defense, July 2010 - DRI Today

P R O F E S S I O N A L L I A B I L I T YIt DependsBy Shari Claire LewisThe Ins and Outs ofAttorney-Corporate-Client PrivilegeBased on educatedpredictions, we mustadvise our clients as tothe steps they can take, atthe time communicationstake place, to avoidwaiver should litigationoccur at a later date.Picture three conference rooms at the corporate headquartersof Any Corporation, Inc. In the first, outside counsel ismeeting with the company’s CEO and general counsel todiscuss acquisition of a competitor’s business. Next door,an assistant in-house counsel is attending ameeting called by the company’s risk managerand IT personnel. Across the hall, thehead of Human Resources is conducting individualinterviews of three employees whowitnessed an incident that occurred in thecompany’s manufacturing plant. The interviewsare being conducted at the request,but in the absence of, insurance- appointeddefense counsel. Each meeting results in aninternal memorandum summarizing whatoccurred. The question, “Which conversationsand resultant memoranda will haveprivileged status if an adverse party seeksdisclosure of their contents in later litigation?”The answer, “It depends.”Clients often assume that all communicationinvolving a lawyer is privilegedand, conversely, that the absence of a lawyer’sdirect participation in a communicationis fatal to a privilege claim. However,attorney- corporate- client privilege and itscousin, the work product doctrine, requirenuanced analyses. In its seminal decisionon attorney- corporate- client privilege, theSupreme Court stated, “We decline to laydown a broad rule or series of rules to governall conceivable future questions in thisarea, even were we able to do so…. Whilesuch a ‘case-by-case’ basis may to someslight extent undermine desirable certaintyin the boundaries of the attorney- clientprivilege, it obeys the spirit of the Rules.”Upjohn v. United States, 449 U.S. 383, 396(1980) (interpreting Fed. R. Evid. 501).The uncertainty is exacerbated by oftencontradictory state and federal laws that maygovern attorney- corporate- client privilegedepending on where a lawsuit is filed. Withthe ever- widening geographic presence ofcorporations, corporate counsel may havedifficulty meaningfully predicting the scopeof the privilege in future litigation in an unknownforum. While each state recognizesattorney- client privilege, the details differ—and, as we all know, the devil is in the detailsThus, those of us who counsel corporationsmust respond “it depends” to our clients’inquires. We must advise as to thesteps, based on educated predictions, that68 n For The Defense n July 2010■ Shari Claire Lewis is a partner in Uniondale, New York, office of Rivkin Radler LLP, in the firm’s Professional Liability and ProductLiability Practice Groups. Ms. Lewis’ practice, at the intersection of law and technology, includes matters involving attorneyand other professional liability, medical device and product liability, and computer and Internet litigation. She is the webcast chairfor DRI’s Professional Liability Committee.