Consider this scenario: Your corporate client asks you for advice on the legality of a new marketing strategy. You issue an opinion that certain aspects of the plan are marginally legal, but that the audit-risk is low unless your client’s competitors chose to sue. Your opinion letter is reviewed and filed in the company’s general files, and your client decides to accept the risk and goes forward with the strategy. Murphy’s law comes into play and your client is sued by its competitor, which asks for all communications with you about the new marketing strategy, including your opinion letter. Might the corporation be forced to turn over its communications with you? Yes. Could such a result have been avoided? Yes.
The key to both answers is confidentiality, a critical factor in both the attorney-client privilege and the attorney work product doctrine. In this scenario, your corporate client, i.e., the party asserting the attorney-client privilege, must prove that the privilege applies to avoid having to turn over your opinion letter. See D.I. Chadbourne Inc. v Superior Court (1964) 60 C2d 723, 729, 36 CR 468.
Had you followed these seven rules you would have gone a long way toward helping your client preserve the attorney-client privilege:
- Privileged or confidential documents are labeled as such. Because the assertion of the attorney-client privilege by a corporation is given enhanced scrutiny by courts, corporations must be careful to mark privileged/confidential documents as such and identify the persons who authored and received them.
- Non-decision makers who speak with counsel are instructed not to discuss the matter; written acknowledgment of this admonition is obtained. If, to render legal advice to the corporation, the corporation’s attorney must obtain necessary information from a corporate employee who is not a top echelon decision maker, that employee must be told, and should acknowledge (preferably in writing), that the communication with the corporation’s attorney is confidential and is not to be discussed with anyone, even other employees of the corporation.
- Attorney-client communications are not disclosed to anyone other than top echelon decision makers. As much as possible, privileged communications should not be disclosed to anyone within the corporation other than top echelon decision makers, and if disclosure to non top echelon decision makers becomes necessary, make it only to those employees who absolutely need to know the information, and only when the information to be disclosed is within the scope of their corporate duties.
- Information is not shared with third persons. Ensure that the communication is not shared with third persons who are not bound by a duty of confidentiality.
- Confidential documents are segregated and kept under lock and key. Maintain confidential documents under lock and key and segregated from nonconfidential documents if possible. Reserve access to these documents to only those people who need to know this information.
- Confidential documents are not sent via e-mail or fax. Faxes and e-mail are typically accessible to persons other than the intended recipient. To avoid a potential waiver by disclosure to unnecessary third parties, avoid these methods for privileged communications.
- Attorney-client communications are not referred to in communications with anyone outside the “Need-to-Know” group. Avoid even general references to the existence of or the subject matter of the communications, e.g., “We asked our attorneys and they told us …,” or, “We have been advised by counsel that …,” or “We took these actions after consulting with our lawyers.” Such statements may waive the privilege and entitle the opposition to inquire into the advice sought and received, including what counsel did to develop the advice.
For more on preserving the attorney-client privilege, go to CEB’s California Civil Discovery Practice, chap 3. Also check out CEB’s program FAQs: The Lawyer’s Duty of Confidentiality, available On Demand, which provides an hour of MCLE credit in Legal Ethics.
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