AUGUST 11, 2020Business or LegalAdvice?The Great Privilege DebatePRESENTED BYEva Weiler Partner Orange County
SHOOK - Orange CountyLONDONSEATTLEBOSTONCHIC AG OPHILAD ELPH IASAN FRAN C ISCODENVERWASH INGTON D.C.KAN SAS CITYLOS ANGELESORANG E COUNTYATLANT AzEva WeilerManaging Partnereweiler@shb.comHOUSTONTAMPAMIAMI*AS OF 3/30/2020
INVESTIGATIONS PRE-TRIAL STRATEGIESShook’s Investigations Pretrial Strategies practice uses more than30 years of experience to offer results that are creative, defensibleand cost-effective. Our guiding principles include: To always favor a “just, speedy and inexpensive determination ofevery action and proceeding,” as prescribed by Fed. R. Civ. P. 1;To remember that the standard of discovery is not perfection,but reasonableness and good faith;To hold the line when the burden or expense of proposeddiscovery outweighs its likely benefit; andTo resist discovery on discovery, especially in the absence ofevidence of improper conduct or bad faith.
ATTORNEY-CLIENT PRIVILEGEAttorney-Client Privilege1014
Attorney-Client Privilege:What is it? A client has a privilege to refuse to disclose or prevent anotherfrom disclosing a confidential communication between client andlawyer if the privilege is claimed by:a) The holder of the privilege;b) A person who is authorized to claim the privilege by the holderof the privilege; orc) The lawyer at the time of the confidential communication.Cal. Evid. Code § 954 39
Attorney-Client Privilege:Why does the privilege exist? The objective of the privilege is to enhance the value whichsociety places upon legal representation by assuring the clientthe opportunity for full disclosure to the attorneyunfettered by fear that others will be informed.Sacramento Newspaper Guild v. Sacramento County Bd. of Suprs. (1968) 263 Cal.App.2d 41 Fundamental purpose of attorney-client privilege is tosafeguard the confidential relationship between clientsand their attorneys so as to promote full and open discussionof the facts and tactics surrounding individual legal matters.Costco Wholesale Corp. v. Superior Court (2009) 47 Cal. 4th 725, 219 P.3d 736
Attorney-Client Privilege:What is covered?“Information transmitted between a client and his or her lawyer in the course ofthat relationship and in confidence by a means which, so far as the client is aware,discloses the information to no third persons other than those who are present tofurther the interest of the client in the consultation or those to whom disclosure isreasonably necessary for the transmission of the information or theaccomplishment of the purpose for which the lawyer is consulted, and includes alegal opinion formed and the advice given by the lawyer in the course of thatrelationship.” 39Cal. Evid. Code § 952
No disclosureLegal AdvicePurpose of consultationInformationThird partiesAttorney-Client Privilege:What is covered?Between lawyerReasonably necessary & clientCourse of relationship 39Cal. Evid. Code § 952
Attorney-Client Privilege:Who holds the privilege?“ the client is the organization itself, acting through its highestauthorized officer, employee, body, or constituent overseeing theparticular engagement.”Ca. Rules Prof. Conduct 3-600. 4 1
C O MP AN Y S H O O KAttorney-Client Privilege:Who bears the burden of proof?FIRST The party claiming the privilegeSECOND The communication is presumed confidential. Theopponent must show that it is not or that the privilege does notapply.*NOTE: Disclosure to a third party changesthe burden.10
C O MP AN Y S H O O KAttorney-Client Privilege:Sometimes It Might be Work Product Documents prepared by attorney, agent, or possibly client.– Need subjective belief that litigation is a real possibility and the beliefmust be objectively reasonable.– Must be able to say document was prepared because of prospectivelitigation. Difference between opinion and ordinary work product11
ATTORNEY-CLIENT PRIVILEGEAttorney-Client Privilege10112
Attorney-Client Privilege:Includes In-House The attorney-client privilege also protects communicationsbetween a company and its in-house counsel acting in alegal capacity.Bank of Am., N.A. v. Superior Court (2013) 212 Cal. App. 4th 1076, 1099
In-House Privilege:What information might count? Written Electronic Oral Gestures14
In-House Attorney-Client Privilege:Who counts as the “client”?All levels of corporate employees as long as that employee possesses facts that the lawyer needs beforeadvising corporate client.BUT Consider giving an Upjohn warning.15
Upjohn Warning*: “I represent the company and not you ” “Your information is not generally availableelsewhere and I need it to advise thecorporate client ” “Don’t disclose to others ”*Could cover former employees16
Attorney-Client Privilege:Can Go Farther Than You Think In-house counsel and employeesof corporate affiliates Purchaser of corporate asset
In-House Privilege:The Relationship A “client” is “someone whoconsults a lawyer for the purposeof retaining the lawyer or securinglegal service or advice from him inhis professional capacity.”Cal. Evid. Code, § 951; Wood v. Superior Ct. 46 Cal. App. 5th562 (2020).18
In-House Privilege:In Confidence/No DisclosureDisclosure to third parties can destroyprivilege, except where:1) The third party is anagent/assistant who well helpadvance the litigant’s interests.2) The third party’s interests arealigned with the litigant’s(“common interest”)19
In-House Privilege:Give Legal Advice The privilege does not attach when the attorney isengaged in non-legal work such as rendering businessor technical advice.See, e.g., Aetna Casualty & Surety Co. v. Sup. Ct., 153 Cal. App. 3d 467, 475 (1984).20
In-House Privilege:Give Legal Advice Primary Purpose– Purpose for communication vs. Purpose for lawyer’s work– Whole document vs. Legal Portion– Widespread dissemination suggests it has a business purpose21
Attorney-Client Privilege:What may be excluded? Foundational facts for attorney-client relationship Independent facts related to the communication Underlying facts Facts known before the attorney-client relationship 4 2
Attorney-Client Privilege:Potential Pitfalls Waiver (Dissemination) Adding the lawyer toeverything Dual purposecommunications Exceptions (Crime, jointrepresentation, breach byclient or lawyer) 4 1
ATTORNEY-CLIENT PRIVILEGEAttorney-Client Privilege10124
Questions to Consider Was there information transmitted?Between a lawyer and client?Was it in the course of their attorney-client relationship?Was the information disclosed to others?– Was disclosure necessary to further the client’s interest?– Or to accomplish the purpose of the lawyer’s consultation? Was legal advice requested or given?– If other information was requested/given, was the legal advice theprimary content? 4 1
In-House Privilege:Scenario 1: Adverse EventFACTS ANALYSISIn-house counsel receives an emailfrom sales rep that a patient usingthe company’s product has died.In-house counsel emails outsidecounsel asking for advice on howto investigate the incident andwrite up the complaint file. Is theemail privileged? 26 Between client and lawyer in thecourse of the legal relationship Single purpose: Email seeks legaladvice on complaint processing. Note underlying facts notprivileged.
In-House Privilege:Scenario 2: Tax AdviceFACTS ANALYSISIn-house counsel has multipleemail communications with theircorporation’s accountants to gettax advice. Are the emailsprivileged?27 Privilege may cover agents ofattorney or client representative. Attorney may seek translation oftax information in order to providelegal advice to the client. Mixed purpose depending onspecific purpose for tax advice.
In-House Privilege:Scenario 3: Internal ComplaintFACTSANALYSISAn anonymous employee submits acomplaint about his boss. In-housecounsel interviews various employeesabout the allegations. Is thesubstance of the interviewprivileged?28 All employees can be covered byprivilege. If Upjohn warning provided, clientemployees know lawyers arerepresenting company. Make sure the interview is done inorder to give legal advice.
In-House Privilege:Scenario 4: NegotiationsFACTS ANALYSISIn-house counsel negotiates theterms of a vendor contractsupplying travel services for thecompany, and discusses the termswith the CFO. Are internalcommunications related tothe contract privileged? 29Attorney-client privilege notapplicable when the attorney actsmerely as a negotiator, or isproviding only business advice.
In-House Privilege:Scenario 5: Marketing MaterialsFACTS ANALYSISIn-house counsel is present at ameeting where marketing pieceswith advertising claims for a newproduct are being discussed. Isthe discussion privileged?30 The mere presence of the attorneydoes not subject the meeting toprivilege. There must be some showing thatthe discussion contained legal, asopposed to business advice fromcounsel.
In-House Privilege:Scenario 6: PR TeamFACTS ANALYSISIn-house counsel hires a PR teamto help with media messagingassociated with employee fraud.Are strategy communicationsbetween in-house counseland the PR team privileged? 31Unless the PR team “furthers theinterest of the client” or is“reasonably necessary for theaccomplishment of the purpose forwhich the lawyer is consulted, notlikely privileged. There is nocommon interest in the outcome ofthe litigation and the PR teamdoesn’t help advance the legalstrategy.
In-House Privilege:Scenario 7: InsuranceFACTSANALYSIS Between attorney andcorporate officer CEO e-mails in-housecounsel about whether thecompany has insurancecoverage for employee’sinjury. Is the emailprivileged? Asking about coverage forpotential lawsuit is legalopinion.32
In-House Privilege:Scenario 8: InvestigationFACTSANALYSIS Primary purpose of duediligence research is toprovide business advice, notlegal advice In-house counsel asks outsidecounsel to do some duediligence on a companybefore it considers acquiringit. Are the documentsprivileged?33
Educate Explain what advice is legal, not business-related Limit recipients Use outside counsel Select privileged documents strategically Use technology to avoid inadvertent disclosure34
legal advice to the client. Mixed purpose depending on specific purpose for tax advice. 27 In-House Privilege: Scenario 2: Tax Advice. FACTS An anonymous employee submits a complaint about his boss. In-house counsel interviews various employees about the allegations. Is the
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