4 myths about attorney-client privilege.
Attorney-client privilege--in the news lately--increasingly comes up when the government alleges corporate misconduct, and prosecutors are using the threat of severe penalties to waive the privilege in exchange for leniency.[ILLUSTRATION OMITTED]
Attorney-client privilege protects the client from having to disclose confidential communications when the attorney is providing legal advice. Questions about the limits of attorney-client privilege usually come up in litigation when an adversary seeks disclosure of confidential information.
Let's dispel some myths about the corporate attorney-client relationship. Answer True or False to each:
1 Corporate counsel represents you personally in work-related matters because you are a company executive.
False. Corporate counsel represents the corporation, not you, the individual. Confidential information about company activities communicated to company counsel may be privileged, but that privilege belongs to the company, not you. This can create conflicts of interest when an executive seeks advice from corporate counsel on the executive's own actions that may expose himself and the corporation to liability.
2 Anything discussed with corporate counsel is protected by attorney-client privilege and must be kept confidential.
False. The fact that a client communicates information to its attorney does not make that information eligible for protection. The information must be confidential and even then, it is not privileged unless it is related to legal advice provided. The failure to delineate the different parts of the exchange with counsel may jeopardize privilege protection for the entire exchange. If you provided counsel with information that was not confidential, merely telling it to counsel does not cloak it with protection.
3 You may share the substance of your communications with counsel with your colleagues without jeopardizing the privilege.
False. Including extraneous employees in legal discussions can undermine protection that might otherwise exist. Emailing legal memoranda to a broad audience will also trigger a waiver. Only those who have a legitimate right to know should be party to privileged communications.
4 Neither the corporation nor its counsel may reveal the substance of those communications without your express consent.
False. It is up to the company to determine whether to preserve the confidentiality of your communications with corporate counsel or to waive it. Should the company elect to waive the privilege protection, it may reveal confidential information that you, as an employee, conveyed to counsel, even if doing so may expose you individually to criminal or civil consequences.
Dispelling Myths to Protect Yourself
Expectating that an executive's communications with corporate counsel about confidential matters are protected can get both the executive and the company into trouble. Years of heightened judicial scrutiny of corporate attorney-client relationships have chipped away at this protection, and the recent spate of high-profile scandals has encouraged prosecutors to ferret out confidential information in the interest of having companies come clean.
Although government agencies conducting an investigation may offer to keep privileged information confidential and agree not to disclose it to private litigants, courts may reject these arrangements. There is considerable disagreement on whether providing confidential information to prosecutors in exchange for leniency amounts to a waiver of the privilege and thus entitles private adversaries to the same information.
Once a company shares information with the government, it runs the risk that a court will compel its disclosure to a private litigant. Since you are not the client, you do not having standing to block disclosure to the government or the adversary.
Safeguard Confidential Information
Simply, when you consult with corporate counsel, attorney-client privilege belongs to the corporation, not to you personally. Consider whether you need independent counsel to protect your personal interests.
Other steps executives can take to reduce the risk that a court will compel disclosure of confidential corporate or personal information include:
* Distinguish between communications addressing legal matters and business matters.
* Privilege applies only to confidential communications to obtain legal advice.
* Segregate confidential attorney-client communications from general business materials and clearly identify privileged information.
* Limit access to confidential counsel communications to those who need to know.
* Do not discuss confidential matters in public places.
* Remind employees of their duty to safeguard confidential information.
* Clarify with corporate counsel any questions about document retention policies.
* Engage outside counsel to conduct or oversee internal investigations.
Francine Friedman Griesing (fgriesing@eckertseamans.com) is a Member of the Business Division of Eckert Seamans Cherin & Mellot LLC in Philadelphia.
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| Author: | Griesing, Francine Friedman |
|---|---|
| Publication: | Financial Executive |
| Geographic Code: | 1USA |
| Date: | Dec 1, 2005 |
| Words: | 712 |
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