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 Yis between an attorney and a corporation,not the corporation’s board of directors,shareholders, or employees. The privilegeremains with the corporation despite achange in corporate structure, ownership,or control. Therefore the person who decideswhether to assert or waive the privilege maynot have participated in the attorney- clientcommunication or have a relationship withCommunications arenot magically imbued withattorney- client privilegesimply because a participantis admitted to the bar.70 n For The Defense n July 2010the actual person who communicated withan attorney on behalf of the corporation’sbehalf. Nevertheless, a corporation cannotcommunicate without human facilitators.Accordingly, counsel’s communicationswith the corporation’s human constituentswill have attorney- client privilege protectionif they meet the requisite criteria.Further, the corporation, not the actual corporatecommunicator, maintains the rightto assert or waive the privilege.The parameters of the attorneycorporate-client privilege create the mostacute problem when counsel, acting ascounsel, conducts an internal investigationfor the purpose of rendering legal advice,in which the interests of the corporationand the individual actor may diverge. Forexample, counsel may investigate fraud ordefalcation charges within the corporationby interviewing corporate insiders, in thecourse of which the insiders may divulgeinculpatory information. Nevertheless, itis the corporation’s prerogative to waive itsattorney- client privilege for those communicationsdespite the possible criminal orcivil exposure to the person who conveyedthe information.In some circumstances an attorney mayhave an attorney- client relationship withboth the corporation and the corporatespeaker. Importantly, however, a corporatespeaker should not assume dual representationexists, nor should an attorney implythat he or she represents both the individualand corporation if dual representationdoes not truly exist.WaiverIndividuals control their own speech andacts. Therefore, to a large extent, they alsocontrol their own destiny when it comes towaiving the attorney- client privilege. Corporateclients, by nature, may have lesscontrol. Even when a corporation has a“corporate policy” to protect confidentialcommunications, unauthorized statementsmay sometimes slip through the cracks.Additionally, regulatory or filing requirementssometimes oblige corporations todisclose otherwise privileged informationto government entities, shareholders, andauditors.Waiver is the other side of the privilegepolicycoin. The purpose of the attorneyclientprivilege is to encourage fullcommunication between client and attorneyso that a client can receive counsel’sfully educated advice. However, the privilegeat time deprives an adversary of highlyrelevant information, which would havebeen discoverable had it not been conveyedwithin the sanctity of the attorney- client relationship.To prevent inequity, a corporationmay not selectively invoke the privilegeso that it only applies to certain communicationson a subject or only for certain purposes.From this concern for inequity comesthe well-worn axiom that the privilege is intendedas a “shield,” not as a “sword.”It is, of course, up to a client to decidewhether to deliberately waive a privilege—for example, by testifying about the substanceof a communication, distributingthe communication beyond the attorneycorporate-client circle, or incorporating thecommunication into a publicly availabledocument. Our job is to advise our clientsabout the potential risks that emanate fromwaivers, as well as their potential scope, sothat they can make educated choices.Sometimes a corporate client accidentallycan waive the attorney- corporate clientprivilege. For example, in litigation, acorporation may seek to justify actions ittook as based upon the advice of counsel.Under that circumstance, a corporationputs an attorney communication “at issue,”and a court may permit an adversary furtherinquiry beyond the initial, limited disclosureby the corporation. Defense counselshould carefully advise their corporate clientsabout an “at issue” waiver with greatparticularity when proposing a litigationstrategy that could lead to such a result.Sometimes waiver may result if, despitea communication’s origination within anattorney- client relationship, a corporationceases to treat it as privileged. Examplescould include filing a privileged documentin a general file, available to employeeswho would have no interest in the subjectmatter, or sharing privileged material withindividuals deemed beyond the attorneycorporate-client relationship parameters,such as corporate employees who mayhave interests that diverge from those ofthe corporation.Sometimes, if a privileged communication“escapes,” becoming public, the escapewill serve as a waiver, even if it wasinadvertent or unintentional. Unintentionaldisclosure can occur in a variety of circumstances,such as inadvertent production ofprivileged material in discovery, carelesstreatment of privileged documents in apublic space, or unauthorized employee, orex- employee, discussion of privileged materialin person, in writing, or online. Somecourts determine whether a waiver has occurredbased on the reasonableness of a corporation’sefforts to maintain the privilegeand to promptly identify and ameliorate arelease mistake. Others, recognizing thatwhen something becomes generally known,it cannot be “un-known,” consider the damagedone and deem the privilege waived.Work Product Doctrine DistinguishedThe work product doctrine is distinct fromattorney- client privilege, but they are oftenraised in tandem. Their protections are notcoextensive, therefore, you should presentarguments about them independently.Briefly, the work product doctrine protectsdocuments prepared by an attorney inanticipation of, or in the course of, actuallitigation, for the purpose of analyzing andpreparing a client’s case. The attorney ownsthe work product privilege. Sandra T.E. v.South Berwyn School District 100, 2009 U.S.App. Lexis 28983 (7th Cir. Feb. 24, 2009).As codified in Fed. R. Civ. P. 26(b)(3)(A),documents and tangible things preparedby a party or its representative in antici-