In this brief snapshot, learn top-of-mind UK competition law developments to keep in sight in 2022. 3d 232, 238 (1st Dist. The reality and dangers of electronic communications require companies to think carefully and proactively about their role in potential litigation. Adding that legend at the top of the communication can assist those who are reviewing documents during the process of document production. However, years before those battles arise, in-house counsel can play an important role in handling their communications with care and ensuring that potentially privileged and protected information will not later be discoverable. Inform all interviewees that the purpose of the interview is to assist the company in obtaining legal advice. PRIVILEGED AND CONFIDENTIAL COMMUNICATION - PREPARED AT REQUEST OF COUNSEL . [Details Here], Please provide your legal analysis and opinion at your earliest convenience. MAIL CODE: 483-520-190 . 33 V.S.A. 6 Federal privilege law does not apply to federal courts sitting in diversity, Thelen Reid & Priest LLP v. Marland, 2007 WL 578989, at *5 (N.D. Cal. Privileged Information means any information, in written, oral, electronic or other tangible or intangible forms, including any communications by or to attorneys (including attorney-client privileged communications), memoranda and other materials prepared by attorneys or under their direction (including attorney work product), as to which a Party . Again, not all attorney-client communications will be deemed privileged once submitted in court, so always proceed with caution and continue to communicate in writing as if your document may be used as evidence in court at some point and blown up and placed in front of a jury. If the primary purpose for the documents creation is not related to litigation, work-product protection will generally be denied by the court. What does this mean, in practical terms? Importantly, communications that seek business or other non-legal advice from someone who happens to be an attorney will not be privileged. Again, not so. Rule 4: Copy only a limited number of people who have a legitimate need to know the information. When in doubt, pick up the phone and call your attorney before hitting the send button. of or reliance upon the materials by any person. Thus, the federal work product doctrine shields both ordinary work product, which is discoverable only upon a showing of substantial need, and opinion work product revealing an attorneys mental processes, which receives nearly absolute protection from discovery. Do you have a standard disclaimer below your signature, or signify each individual email as privileged when it potentially is? For more information, read our cookies policy andour privacy policy. chapter 69, subchapter 1 (Reports of Abuse of Vulnerable Adults) is . Accordingly, in-house counsel practicing in Illinois should generally presume that the common interest doctrine will not prevent waiver of their privileged communications, and should act with caution when involving third parties in potentially privileged communications. For example, while confidential advice on U.S. law given by U.S. outside counsel to a European company in connection with a U.S. proceeding generally should be privileged in a U.S. proceeding, it may not be protected from disclosure in an EU Member State in connection with a European proceeding.7 The duty of confidentiality is given effect, in part, by the attorney-client privilege and the work product doctrines. All Rights Reserved. 645, 666 (N.D. Ill. 2009) (citing U.S. v. Kovel, 296 F.2d 918, 922 (2d Cir. This report developed by Womble Bond & Dickinson surveys nearly 200 executives based across the United States. Rule 2: End the communication by asking your attorney for a legal opinion and analysis. See Selby v. ODea, 2017 IL App (1st) 151572, 83; Ross v. Ill. This can be especially problematic if the e-mail contains potentially incriminating or embarrassing content because opposing counsel may be more likely to notice it due to the number of copies circulated. Ill. R. Profl Conduct R. 1.6, cmt. Don't overuse. However, the company can only act through its employees. WAYNE COUNTY, MICHIGAN 48202 . All Rights Reserved. Not to ignore work product privilege but this protects work product created in anticipation of litigation. Accordingly, communications to and from attorneys may involve a "dual-purpose" and contain both legal and non-legal analysis. The doctrine applies to (1) material prepared by or for a party (2) in preparation for trial (3) which contains or discloses the theories, mental impressions, or litigation plans of the partys attorney. The defining factor is whether the document reveals the . Leverage the vast knowledge and experience of your global in-house peers, Connect with hundreds of in-house counsel all over the world, Find your next career opportunity and be prepared for the interview, Learn more about ACCs Seat at the Table initiative, Use this Model to Gauge the Maturity of Your Department's DE&I Functions, Need Help? Crabtree v. Experian Info. 5 Id. 2012); Costello v. Poisella, 291 F.R.D. By using the site, you consent to the placement of these cookies. In-house counsel should follow these basic rules in order to prevent potentially disastrous results in later litigation. Consider adding "do not forward" notations on privileged emails and documents or use software that prohibits forwarding to prevent waiver of privilege. Please note that all such forms and policies should be reviewed by your legal counsel for compliance with applicable law, and should be modified to suit your organizations culture, industry, and practices. Some are essential to make our site work properly; others help us improve the user experience. The remainder of this article addresses some best practices that in-house counsel may wish to follow to help ensure that potentially privileged communications are not discoverable. See, e.g. If you cannot reach colleagues by telephone or meet them in person, simply send them an e-mail saying, Please call me.. 3. Thus, it is entitled to the highest level of attorney work product protection and attorney-client privilege., If the interviewee is an aggrieved employee, caution is warranted, especially if the interviewee is represented by counsel. Conversations are privileged only if the constituent is seek- ing legal advice. In-house counsel should control the investigation. For example, in Sullivan v. Alcatel-Lucent USA, Inc., No. For Ms. Parthums full biography, visit: https://www.mololamken.com/professionals-michelle-parthum. June 23, 2020). Mlynarski v. Rush Presbyterian-St. Lukes Med. Build specialized knowledge and expand your influence by earning a SHRM Specialty Credential. Part 1 ATTORNEY CLIENT PRIVILEGE Attorney-Client Privilege To be protected, a communication must be: between alawyerandher client, in thecourse of a professional relationship, for purpose of obtaining legal advice(if from client), or forpurpose of facilitating legal advice or services(if from Many in-house corporate counsel will be faced with an internal complaint, or with an external enforcement investigation, that will require the company to conduct an internal investigation. The information in any resource collected in this virtual library should not be construed as legal advice or legal opinion on specific facts and should not be considered representative of the views of its authors, its sponsors, and/or ACC. If it is not predominantly legal advice, it is likely discoverable. var currentLocation = getCookie("SHRM_Core_CurrentUser_LocationID"); Fed. Before the advent of e-mail, lawyers and clients might proofread a letter multiple times before . D. RAFT . Instruct business teams to send legal issues directly to the legal team. Strictly Privileged and Confidential Prepared at the Request of Counsel SAMSUNG ELECTRONICS . Under federal law, work performed by or for a party, its attorney, or its other representative in anticipation of litigation is protected from discovery. 3d 995, 1002 (N.D. Ill. 2018). The work-product doctrine, however, is not absolute. $('.container-footer').first().hide(); 4. Cent. To be considered a communication for the purpose of legal advice, the advice must be sought from or given by an attorney in their capacity as an attorney, United States v. Evans, 113 F.3d 1457, 1463 (7th Cir. While you may hope that you never need them, it's wisest to bring yourself up to speed with certain elements of "Business Legal 101" to protect yourself and your company from unwanted legal exposure. In addition, consider whether to include outside counsel on the communication. For example, an Illinois appellate court recently held that an email forwarding a draft lobbying presentation to the companys general counsel was not privileged because the email did not indicate that the sender was seeking legal advice from the lawyer in his capacity as general counsel. Log in to keep reading or access research tools. Written communications should balance effective communication of legal advice with the risk that it could eventually be in the hands of adversaries/court. Ct. R. 1.6, cmt. Electronic communications are instantaneous. Prior to joining MoloLamken, Ms. Clarke clerked for the Honorable Allison H. Eid of the United States Court of Appeals for the Tenth Circuit and the Honorable Edmond E. Chang of the United States District Court for the Northern District of Illinois. For example, the top of emails and all other document formats (including Word, Excel, PowerPoint, and handwritten notes) should include an indication of privilege. In reality, the doctrine has a more limited scope and only protects those documents prepared for or by an adverse party in anticipation of litigation.. But, note, adding counsel to a communication, whether in the to or cc line, will not automatically make it privileged. You have successfully saved this page as a bookmark. the provision of legal advice. https://www.mololamken.com/professionals-michelle-parthum, https://www.mololamken.com/professionals-benjamin-woodring, https://www.mololamken.com/professionals-232. Courts have held that pro forma assertion is meaningless. This should be emphasized especially when addressing sensitive or incriminating subjects. BMM N. The attorney-client privilege may be used when a complaint involves serious concerns (including potential criminal claims), may develop into a lawsuit, or may have the potential to impact a large number of employees (e.g., class action status), among other considerations. M. EMORANDUM. In the first line of body of e-mail, write, I am writing to provide legal advice regarding [X] or I am seeking legal advice regarding [Y].. The attorney-client privilege, if used properly, should accomplish this task. One challenge unique to in-house lawyers is ascertaining the employees with whom the lawyer may have privileged communications. E. Importantly, under the Second Restatement, if either the forum state or the state with the most significant relationship to the communication would treat it as non-privileged, then it will generally be treated as non-privilegedeven if the other state would have treated it as privileged. Clearly labeling privileged communications is also important because it avoids the potential waiver of privilege. Third, consider the substance of the communication. Illinois follows the Restatement (Second) of Conflict of Laws 139, Allianz Insurance Company v. Guidant Corporation., 373 Ill. App. If company employees believe that the documents they author are privileged, they may be less careful in their writing, assuming that the document will never be seen by anyone outside the organization. Counsel alone should conduct interviews where possible. The attorney-client privilege applies to communications between a client and a lawyer acting in their capacity as such, made for the purpose of obtaining or providing legal advice, that are made confidentially and kept confidential. Ostensibly,a release of findings of fact is not a release of attorney-client communications. But inadvertent disclosure without systematic protection can be waiver. Postal Serv. The privilege does not protect communications between workers when no attorney is present. For example, attorneys frequently offer advice regarding the propriety of a particular tax deduction or assist with compliance with a particular regulation.2, Under the primary purpose test the panel adopted, courts must analyze whether the primary purpose of such communications is to give or receive legal advice, as opposed to business advice. Therefore, let caution rule the day when it comes to exchanging emails, documents, or other electronic communications that you mark privileged. If successful, your description of the facts and your attorney's recommended course of action will be protected from plaintiff attorneys' eyeballs (and from a jury's considerations) should the case proceed to trial. Clearly label privileged communications. Please enable scripts and reload this page. Crucially, employees who merely supply information to the attorney or corporate decisionmakers are not part of the control group. Solutions, Inc. 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In other words, you can't send an email to your non-attorney boss and mark it "privileged and confidential" because without an attorney on the receiving end to provide legal analysis and advice, there's no mechanism to protect the communication from legal discovery. View Job Listings & Career Development Resources, http://www2.acc.com/legalresources/resource.cfm?show=1374414, 10 things to expect from UK competition law in 2022, 2022 ACC Chief Legal Officers Survey Key Findings, 2022 State of US Data Privacy Law Compliance Report, I was recently on a panel at the 2014 ACC Corporate Counsel University titled "Session 700 - Attorney-Client Privilege for In-house Counsel" that is a good reference on privilege and how it may arise in an in-house setting (. As an initial matter, in-house counsel should advise their colleagues that communications with them are not always privileged. These resources are not intended as a definitive statement on the subject addressed. Moreover, there is always risk in involving third parties in attorney-client communications. Attachments may raise a host of other issues in discovery because there may be multiple versions of the same document, each of which may be independently discoverable. Electronic communications are instantaneous. Maintaining the attorney-client privilege in an in-house counsel-led internal investigation is not automatic, and can be tricky. He also previously worked as a litigation associate at Boies Schiller Flexner LLP. Similarly, the US District Court for the District of Maryland considered whether the privilege applied to a briefing document prepared by outside counsel in response to a company's request for a . 09 C 4479, 2010 WL 4703859, at *3 (N.D. Ill. Nov. 8, 2010). In addition to discovery of documents in hard copy format, an adversary most likely will seek discovery of electronic data relating to the same subject areas. See Heriot v. Byrne, 257 F.R.D. Ms. Parthums practice focuses on complex commercial litigation and appeals. 3. Leaving aside situations where privileged communications are shared with third parties thereby causing a waiver of the privilege, the difficulty in ensuring privilege protection can be traced to the in-house counsels dual role. To qualify as attorney work product under Rule 26(b)(3) the material must have been prepared in anticipation of litigation or for trial[.]. Additionally, while some internal investigations are obviously to facilitate legal advice, others may be undertaken to comply with general corporate policy or regulations that specifically require the company to investigate (e.g., Department of Defense regulations require defense contractors to maintain compliance programs and conduct internal investigations into allegations of potential wrongdoing). Co., 2019 IL App (1st) 181579, 42. The attorney-client privilege is the oldest of the privileges for confidential communications known to the common law. In addition, if an e-mail contains an attachment, that attachment is subject to the same discovery issues discussed above. Although e-mail has replaced telephone communications as the preferred medium of communicating, telephone or face-to-face communications should be encouraged when transmitting certain information to prevent problems for counsel later in litigation. It is even easier to select Reply All when responding to an e-mail. The uncertainty inherent in choice-of-law scenarios provides yet another reason for in-house counsel to exercise care in disseminating potentially privileged communications, particularly where the privilege claim is more borderline. By Michael A. Collyard and Chelsea A. Walcker, In-house lawyers and clients who anticipate litigation discovery should understand how common missteps can destroy or waive privilege protections, particularly in todays digital age. Interview memoranda should memorialize what was learned in the interview but should also contain counsels interpretations, mental impressions, thoughts and analysis. She represents clients before the United States Supreme Court, the federal courts of appeals, and other federal and state courts. While Illinois law recognizes the common interest doctrine, it is relatively underdeveloped and has not been extended much, if at all, outside the insurer-insured relationship. Under federal law, those communications may be protected by the common interest doctrine, which allows otherwise-privileged communications to be shared between parties that have a common legal interest without giving rise to a waiver of the privilege. Likewise, a confidential communication rendering legal advice prior to anticipated litigation may be protected by the attorney-client privilege, but will not be protected by the work product doctrine. For example, one court held that a memorandum describing the results of an internal audit was not prepared for trial where there was a three-year gap between preparation of the audit and the filing of the lawsuit. While a full discussion of such issues is beyond the scope of this article, in-house lawyers should be aware that communications they intend and understand to be privileged could later be evaluated under another states law that may give lesser protection to attorney-client communications. The panel observed the common-law justification for the attorney-client privilege doctrine set forth in Upjohn Co. v. United Statesis to encourage full and frank communication between attorneys and their clients.3, In contrast, the work-product doctrine is not to encourage communication but rather to "preserve a zone of privacy in which a lawyer can prepare and develop legal theories and strategy with an eye toward litigation, free from unnecessary intrusion by his adversaries. Restatement 139(2), cmt. Lawyers who have reviewed electronic communications in discovery know that inappropriate language in e-mails, texts, or other forms of electronic communication can quickly pique their interest amidst otherwise mundane business communications. As lawyers who have reviewed e-mail communications during discovery know, this option is frequently used. If written, the internal investigation report should be communicated with the above checklist in mind (i.e. If an email really just concerns an operational business matter - especially low risk matters - don't dress it up as privileged legal communiqu. 1. However, many lawyers wrongly believe that the work-product doctrine, which may be invoked by both lawyers and clients, can be used as a catch-all protection to prevent discovery of documents. } Coll. R.R. At times, in-house lawyers may need to coordinate with another partys attorney with respect to some common legal issue or strategy. App. Rather, they are intended to serve as a tool providing practical advice and references for the busy in-house practitioner and other readers. 2 The court noted that some tax compliance considerations are not considered legal advice (e.g., the proprietary of a tax deduction) but others are (e.g., seeking advice on what to do if the IRS challenged the deduction). Label privileged communications and attorney work product as such. Privileged materials are designated attorney-client . The duty of confidentiality is very broadit applies not only to information learned from the client, but also to any information relating to the representation, whatever the source. P. 26 (b) (3). 7 See, e.g., Travelers Ins. For example, during the course of a workplace investigation, you may want to protect certain communications or recommendations from being introduced as evidence in later litigation. Such an indication, however, is not dispositive of privilege, and practitioners should avoid overusing notations for privilege that will dilute legitimate claims of privilege. and Clay Patmont, Anchor QEA, LLC . Avoid mixing business and legal advice. Ill. R. Profl Conduct R. 1.6(a). 1998)). Response #1: The disclaimers at the bottom of the email are not really that relevant when a court makes a privilege determination. An in-house counsels communications relating to his or her business function are not privileged simply because the in-house counsel is an attorney. 6241 CASS AVENUE . $("span.current-site").html("SHRM China "); ", Finally, the court also suggested that a communication can have multiple but equal primary purposes. Robert R. McCormick Found. STRATEGIC UPDATE Enhancing Long -Term Shareholder Value . Ill. R. Profl Conduct R. 1.6(e). The applicable law may differ significantly depending upon whether federal or state (and which states) law applies, and many of the doctrines involve fine line-drawingparticularly for in-house lawyers balancing both legal and business responsibilities. By contrast, the Illinois work product doctrine protects only opinion work productthat is, work product that reveals the attorneys theories, mental impressions, or litigation plans. Rule 3: Label the top of the communication or the subject line of an email: "Privileged and Confidential: Attorney-Client Privileged Communication." blanket privilege headings do more harm than good). Privileged and confidential communication is the interaction between two parties having a legally protected, private relationship. Given the wide range of legal tasks routinely handled by in-house counsel, an important limitation to keep in mind is that attorney work product protectionwhether under federal or Illinois lawapplies only to materials generated in anticipation of litigation or trial. } If the board has established a special committee for which the investigation is to be conducted, the in-house investigating counsels client may be the special committee rather than the board or the company. Courts will thus carefully scrutinize in-house lawyers communications to ensure that only those involving predominantly legal advice are being withheld. See, e.g., Doehne v. EmpRes Healthcare Mgmt., LLC, 190 Wn. If you feel the need to use humor, sarcasm, or profanity, save it for telephone or in-person communications. PRIVILEGED COMMUNICATIONS. Related to Confidential Privileged Information. Make legal aspects clear and be honest with self. The battles over whether such communications are properly protected under such doctrines are typically fought by outside counsel in the context of active litigation. Litigation conflicts often arise in the context of discovery of electronically stored information (ESI) due to the proliferation of e-mail, text messages, and social media, and the potential greater accessibility of the information. Under the express provisions of the federal rule of civil procedure, a party that received inadvertently disclosed and privileged information must "promptly return, sequester, or destroy the specified information and any copies of it," must not use or disclose it until the claim is resolved, must take reasonable steps to retrieve it if it has al. While it may become advantageous to later waive the privilege in part or whole, if the privilege is not established and preserved at the outset, there will be no decision to be made as the matter progresses. A workplace run by AI is not a futuristic concept. By in-house counsel, for in-house counsel. Enter your email address to follow this blog and receive notifications of new posts by email. Even opinion work product, moreover, is discoverable in Illinois upon a showing of impossibility of securing similar information from other sources. In-house counsel should draft an investigation plan, which explains the investigations singular focus is to gather facts and, in light of those facts, determine how the companys legal risk and litigation exposure can be mitigated. As a result, it is important for in-house counsel to take extreme care with respect to potentially privileged communications. E-mails can easily be forwarded, and can easily be sent to people outside of the company. For each additional recipient you include on your e-mail, there will be an additional source for the communication, which may be separately discoverable. Encourage business counterparts to use language that suggests the communication. R. Civ. Privileged and Confidential prepared at the request of counsel 2018 The Chartis Group, LLC. Failing to create the document under such criteria could result in the loss of the privilege and the subsequent sharing of the material as part of the plaintiff attorney's case against your company. When writing and sending an e-mail, you should carefully consider whether each recipient must be included on the e-mail distribution. In-house counsel frequently perform both a business and a legal function for the company. Consider making an oral internal investigation report (rather than a written one) of the investigations findings to need to know company management. Predominantly for the Purpose of Legal Advice. If you have something negative to say about someone, say it in person or on the phone. Confidentiality The privilege only applies to "confidential" communications. Prepared by the Office of Legislative Counsel Sec. However, these risks can be avoided by being informed and diligent about preserving privilege before litigation begins. Claxton v. Thackston, 201 Ill. App. The attorney-client privilege is a way to address communication to your outside or in-house counsel when you need to send a message (i.e., letter or email) but don't want it to be potentially. E.P.A., 702 F.3d 1018, 1023-24 (7th Cir. This Wisdom of the Crowd (ACC member discussion) addresses how to protect privileged information in internal email communication, under US law. 3d 427, 432 (1st Dist. ESI is commonplace in our personal lives and in the operation of businesses, public entities, and private organizations. On September 13, 2021, a three-judge panel of the 9th Circuit affirmed the district court's application of the "primary purpose" test as the controlling legal test for dual legal and business purpose communications in the 9th Circuit. This notice should be prominent and easily viewable as soon as someone receives the communication. And label appropriately. Although labelling communications is not conclusive, it may help to focus attention internally.
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