The Law for Lawyers Today

The Law for Lawyers Today

Ethics, Professional Responsibility and More

Category Archives: Privilege

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No shield for investigation interviews, district court holds in D.C. transit authority case

Posted in Privilege, Work-product
Whether you are in-house or outside counsel, your clients want the attorney-client privilege and/or work-product shield to apply to materials created as part of an internal corporate investigation.  But the applicability of these doctrines is very fact-specific, and difficult facts can doom that desired outcome.  That was the conclusion of the Washington, D.C. district court in an opinion last… Continue Reading

Privilege for communications with PR firms: recent case spotlights risk

Posted in Privilege, Work-product
Thinking of using a public relations firm to help manage a corporate crisis? Divergent interpretations of the privilege rules have led to differing legal opinions on whether communications between a PR firm and the company or defense counsel are privileged. Two different state courts of appeals ruled last month that such communications were not privileged. They illustrate the privilege risk that can arise in communications with PR firms.… Continue Reading

CA Supreme Court rules against “categorical” privilege for public agency legal bills

Posted in Privilege
In late December, a sharply divided California Supreme Court ruled that legal-fee bills in closed cases aren't necessarily covered by attorney-client privilege. Although the case involved a discovery demand sent to a government entity under the state's public records act, some lawyers have questioned (sub. req.) how far the privilege limitations might go.… Continue Reading

What can you say when the client doesn’t pay? ABA opinion gives withdrawal guidance

Posted in Communication, Confidentiality, Law Practice Management
Old-time lawyers say that it used to be easy to get the court's permission to withdraw from a case. You would just go to the judge and state, "Your Honor, we are not ready to go forward, and I am seeking leave to withdraw, because Mr. Green has not arrived." You know: "Mr. Green" aka the moolah, aka the promised fee from the client. And, so the story goes, the judge would bang the gavel and grant your motion.… Continue Reading

Warning from WA: lawyer’s post-employment interviews with former employees not privileged

Posted in In-house Counsel, Law Practice Management, Privilege
A sharply-divided Washington Supreme Court has ruled that an organization's attorney-client privilege doesn't apply to communications between the company's lawyers and its former employees. Although Newman v. Highland School District No. 23o adheres to a minority viewpoint, the implications are troubling, and the bright-line test that the state supreme court established in a case of first impression will require new cautions in cases where Washington state privilege law applies.… Continue Reading

Five signs that your law department could be headed for a privilege problem

Posted in Confidentiality, In-house Counsel, Law Practice Management, Privilege
Regulatory compliance, cyber-security issues, herding legal operations staff -- in-house legal practice is more complex than ever. One element that remains a continuing challenge is protecting the organization's attorney-client privilege. Slipping up can risk the loss of the privilege in litigation involving the company, and can potentially result in an order to produce otherwise confidential communications to the other side. What are some signs that your law department needs to tune up its privilege IQ?… Continue Reading

Firm counsel privilege prevails; New York joins favorable trend in recognizing doctrine

Posted in In-house Counsel, Privilege
Attorney-client privilege covers ethics advice that lawyers get from their law firm's general counsel, and the communications do not need to be disclosed to the client, said a unanimous five-judge panel of the New York Appellate Division last week, in a closely-watched case. In Shock v. Shnader Harrison Segal & Lewis LLP, the court ruled that the law firm was the "real client" in getting the advice from the GC, and held that the fiduciary exception didn’t apply.… Continue Reading

Microsoft acquisition of LinkedIn could spell ethics issues for lawyers

Posted in Confidentiality, Law Practice Management, Social Media and Internet
Microsoft's plans to acquire LinkedIn for $26.2 billion was the talk of the tech world late last month. The combination of these behemoths is going to give Microsoft access to all LinkedIn's data. Microsoft's CEO has given some examples of the potential synergies that will result, like "getting a feed of potential experts from LinkedIn whenever Office notices you're working on a relevant task." But legal ethics issues loom, involving our duty of confidentiality under Rule 1.6.… Continue Reading

Violating confidentiality order results in lawyer’s DQ and referral to state ethics board

Posted in Confidentiality, Disqualification, How Not to Practice
Courts often analyze motions to disqualify by balancing the need to uphold professional standards against the rights of clients to choose their lawyers freely. The New Jersey court of appeals struck that balance earlier this month in upholding the disqualification of a lawyer who violated a confidentiality order, finding that the lawyer knowingly disobeyed a court order, among other violations.… Continue Reading

Lawyers can’t necessarily disclose former client info, even if it’s “publicly available”

Posted in Confidentiality, How Not to Practice
You’re chatting with your pals at the bar association cocktail hour, and talk turns to the indictment just handed down against a former city official.  Someone says, “Hey, didn’t your firm used to represent her?”  “Yes,” you reply, “and a couple years ago, I had a really interesting case involving her.  Maybe I shouldn’t discuss it —… Continue Reading

Privilege shields internal firm discussions about conflict, N.D. Cal. magistrate rules

Posted in Conflicts, In-house Counsel, Privilege
Internal discussions among Orrick's chief legal officer and other firm lawyers about a conflict of interest remain privileged under federal common law, a federal magistrate judge for the Northern District of California has held, in quashing a third-party subpoena directed to the firm -- even though the firm still represented the client at the time of the discussions. The opinion is the latest in the line of federal and state cases that have been developing a jurisprudence of law-firm privilege.… Continue Reading

Don’t bcc your client on e-mails to opposing counsel, NY state bar advises

Posted in Communication, Competence, Law Practice Management, Privilege
What’s ethical may nonetheless not be a best practice — timely advice from the ethics committee of the New York State Bar Association, which weighed in recently with an ethics opinion on the practice of blind copying your client on e-mails you send to opposing counsel. The inquiry to the NYSBA’s Committee on Professional Ethics arose because the… Continue Reading

Five legal ethics developments to watch in 2016

Posted in Competence, Conflicts, Law Practice Management, Multi-jurisdictional practice, Privilege, Social Media and Internet
What was the most important development in the legal ethics arena over the past five years?  I was honored to be asked by LexBlog, the folks who provide our blog platform, to share my views on this topic on the LXBN network, which has 8,000+ blog authors.  But of course, the invitation also made me think about… Continue Reading

Fired GC fends off dismissal of retaliation claim, can sue individual director, says district court

Posted in Confidentiality, In-house Counsel
A fired GC of a public company recently fended off dismissal of his whistle-blower retaliation claims in California district court.  Adding to a split in authority, the chief magistrate judge for the Northern District of California held (1) that the protections of the Dodd-Frank Act applied even though the GC made his report internally, and not to the… Continue Reading

Privilege for deposition break conferences?

Posted in Privilege
It’s a scenario that all trial lawyers are familiar with.  Your client is testifying at deposition.  She gets a little confused and her testimony reflects it.  After a line of questioning concludes, you request a break, leave the room with your client and confer.  When the deposition resumes, your client changes her testimony, perhaps significantly.… Continue Reading

No privilege for communications by risk manager who was also a lawyer

Posted in In-house Counsel, Insurance, Privilege
Corporate organization charts increasingly include slots for departments with names like  “risk management,” “claims handling,” and the like.  When lawyers head or staff such departments, does the attorney-client privilege cover their communications with company management?  Not necessarily, says a new opinion from the Eastern District of Pennsylvania, Casey v. Unitek Global Services, Inc. Sex discrimination allegations… Continue Reading

In-house firm counsel privilege — will the favorable trend continue?

Posted in In-house Counsel, Privilege
Two trial courts — in New York and New Hampshire — recently weighed in on the in-house firm counsel privilege.  The New Hampshire Superior Court, in Moore v. Grau, recognized the parameters of the privilege.  In contrast, the New York County Commercial Division judge in Stock v. Shnader Harrison Segal & Lewis LLP ruled that a… Continue Reading

Privilege covers lawyer notes from GM ignition switch investigation, district court finds

Posted in Confidentiality, Privilege, Work-product
Both in-house and outside counsel can learn valuable lessons from In re General Motors, a recently-issued federal opinion on the attorney-client privilege and work-product doctrine. While some recent decisions have chipped away at the protections for attorney notes and internal memos, this opinion reaffirms that documents a lawyer creates during a corporate investigation will be… Continue Reading

Court upholds attorney-client privilege for in-house counsel

Posted in In-house Counsel, Privilege
Employee communications made in confidence during a company’s internal investigation can be protected by the attorney-client privilege even where in-house counsel leads the investigation, the D.C. Circuit Court of Appeals has said in a recent ruling. While the result in In Re:  Kellogg Brown & Root, Inc. is not surprising, the case is noteworthy both… Continue Reading