Case-by-case determination is best or at least use category-by-category determination. Prepared at Request of Counsel . First, the foregoing doctrines have been relied upon more heavily by Illinois federal than state courts, and so there is some uncertainty about the degree to which Illinois state courts will embrace these doctrines. Enter your email address to follow this blog and receive notifications of new posts by email. For more information, please contactDavid Kelchor any member of Porter Wright'sCorporate & Internal Investigations Practice Group. To qualify as attorney work product under Rule 26(b)(3) the material must have been prepared in anticipation of litigation or for trial[.]. The materials are provided on a confidential basis solely for your information and may not be disclosed, summarized, reproduced, disseminated or quoted or otherwise referred to, in whole or in part, without Houlihan Lokey's express prior written consent. Privilege and Confidentiality Disclaimer | Association of - ACC App. Even opinion work product, moreover, is discoverable in Illinois upon a showing of impossibility of securing similar information from other sources. 2007), which distinguishes between the privilege laws of the state where the litigation is pending and those of the state with the most significant relationship to the communication. Rule 2: End the communication by asking your attorney for a legal opinion and analysis. Ctr., 213 Ill. App. Inform all interviewees that the purpose of the interview is to assist the company in obtaining legal advice. Her practice includes business and securities litigation. R.R. "4According to the panel, applying "the 'because of' test to attorney-client privilege might harm our adversarial system if parties try to withhold key documents as privileged by claiming that they were created 'because of' litigation concerns. The 9th Circuit recently clarified the bounds of the attorney-client privilege. See People v. Radojcic, 2013 IL 114197 40 (2013). Importantly, communications that seek business or other non-legal advice from someone who happens to be an attorney will not be privileged. If an email really just concerns an operational business matter - especially low risk matters - don't dress it up as privileged legal communiqu. For communications where legal advice is sought, business personnel should put in-house counsel recipient in the to vs. the cc line of the communication. For instance, some courts have held that the attorney-client privilege may apply to communications with a third party made for the purpose of obtaining or providing legal advice where the third party is necessary, or at least highly useful for effective consultation between the client and lawyer. And when sending an email or written document containing legal advice, in-house counsel may wish to use a Privileged and Confidential legend to alert colleagues that the communication contains legal advice and should not be further disseminatedthough care should be taken not to overuse such legends, which could instill a false sense of security in colleagues or cause a court to conclude that the legend is meaningless. M. EMORANDUM. 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? 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. Ms. Parthums practice focuses on complex commercial litigation and appeals. Ill. Sup. Circuits, which also apply variations of the primary purpose test. This Wisdom of the Crowd (ACC member discussion) addresses how to protect privileged information in internal email communication, under US law. R. Civ. PDF Protecting Privilege in A Cyber Breach Incident Response 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. Enter the password that accompanies your username. Need assistance with a specific HR issue? privilege label, legal advice preface), and should be distributed only to those in the company who need to know. An in-house counsels communications relating to his or her business function are not privileged simply because the in-house counsel is an attorney. To: Joe Kelly, Montrose Chemical Corporation, and Kelly Richardson and Steven Lesan, Latham & Watkins LLP . PDF An act relating to adult protective services Prepared by the Office of The "primary purpose" test may not always apply if the dispute is in state court, certain federal cases. So be sure to discuss upfront whether your in-house counsel or outside defense attorney wants any particular emails or document exchanges protected. The nature of attorney-client privileged communications is that they are highly confidential, limited in distribution, and created at a particular point in time on a strict need-to-know basis. Request must be accompanied with release by employee, volunteer, or What was once rarediscovery involving ESIhas now become commonplace. In-house counsel should follow these basic rules in order to prevent potentially disastrous results in later litigation. CAUTION - Before you proceed, please note: By clicking accept you agree that our review of the information contained in your e-mail and any attachments will not create an attorney-client relationship, and will not prevent any lawyer in our firm from representing a party in any matter where that information is relevant, even if you submitted the information in good faith to retain us. This is incorrect. And not only are lawyers forbidden from disclosing confidential information, they also have an affirmative duty to make reasonable efforts to protect that information from inadvertent disclosure. It is also prudent to include only those with a need to know whatever information is being relayed. For Ms. Clarkes full biography, visit: https://www.mololamken.com/professionals-232. 512, 518 (1980), aff'd, 96 Wn.2d 416 (1981) (holding that documents related to a business decision related only in part to legal advice and thus were not privileged); Dike v. Dike, 75 Wn.2d 1, 11 (1968) ("[T]he privilege cannot be treated as absolute; but rather, must be strictly limited to the purpose for which it exists."). All Rights Reserved. Consider sequestering privileged electronic documents in a separate database, or individually password-protect privileged documents, distributing the password to only those employees with a true need to know the information. Below we offer tips for in-house attorneys: 1 In re Grand Jury, No. And label appropriately. I wish it were easier. Neither members nor non-members may reproduce such samples in any other way (e.g., to republish in a book or use for a commercial purpose) without SHRMs permission. Under Illinois law, however, the narrower control group test is used to determine whether a lawyers communications with a companys employees are privileged. }); if($('.container-footer').length > 1){ However, exercise caution in labeling privileged communications as work product. Labeling documents as work product privileged may have negative implications for later litigation. Benjamin Woodring is an associate at MoloLamken LLP. But, note, adding counsel to a communication, whether in the to or cc line, will not automatically make it privileged. Please purchase a SHRM membership before saving bookmarks. PDF BEWARE: LEGAL PRIVILEGE RULES DIFFER BETWEEN THE U.S. AND THE - Willkie Not to ignore work product privilege but this protects work product created in anticipation of litigation. Unlike the attorney-client privilege, which can only be waived by the client, the work-product doctrine may be overcome if an opposing party can show that it has a substantial need for the documents to prepare its case for trial and cannot, without undue hardship, obtain their substantial equivalent by other means. Date: July 16, 2015: From: Michael Whelan blanket privilege headings do more harm than good). privileged/work product; prepared at the request of legal counsel draft 12 C 7528, 2013 WL 2637936, at *3 (N.D. Ill. June 12, 2013), the court held that one employee, who was the primary contact with counsel for a particular legal matter and whose analysis and recommendation were part of the companys decision to settle the matter, was a necessary advisor and therefore part of the control group. STRATEGIC UPDATE Enhancing Long -Term Shareholder Value . Investigations conducted or directed by in-house counsel increase the risk that the companys attorney-client privilege and work product protections will be waived. Do not put anything in an e-mail, text message, social media post, or other form of electronic communication that you would not be willing to show to a jury or a judge. 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.. Please log in as a SHRM member before saving bookmarks. Such technology is already a part of many workplaces and will continue to shape the labor market. This article will provide a checklist to ensure the preservation of the attorney-client privilege throughout in-house counsel internal investigations. In-house counsel should control the investigation. In-house counsel should also take special care to ensure that the substance of their communications will qualify for attorney-client privilege. 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. Servs., Inc., 2019 IL 123936, 31. If it is not predominantly legal advice, it is likely discoverable. of Trs. It is always best to contact your legal department in advance of launching an investigation when you suspect that the gravity of the situation may give rise to significant liability. Because earlier versions of electronic documents may be discoverable, carefully consider whether those versions should be circulated before they are finalized. Example of an Attorney-Client Privileged Document Structure, Privileged & Confidential: Attorney-Client Privileged Communication, I'd like your advice and counsel on the following matter . 7451 Third Street . AI-powered legal analytics, workflow tools and premium legal & business news. In addition, consider whether to include outside counsel on the communication. This article is adapted from 75 Ways for Managers to Hire, Develop, and Keep Great Employees (AMACOM / HarperCollins Leadership, 2016). To do so, follow these general rules: Rule 1: Address communications to your attorney. Related to Confidential Privileged Information. Many clients and lawyers wrongfully assume that using the label work product or attorney work product protects documents from later discovery. All Rights Reserved. Because humor is context-based, it often loses its impact and can be misconstrued when removed from its original context and revisited in later litigation. The email needs to be seeking and getting legal advice. Learn what key trends and issues Chief Legal Officers have identified as top of mind. 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. For example, in-house counsel may be copied on internal communications that serve business purposes but also have legal implications. I did it to illustrate to those managers that no one reads the notice/disclaimer under a signature (of the 46 individuals who received it, only 6 read the entire email, and claimed a prize -- and that was even after one person 'replied all' and gave away the game). Lawndale Restoration Ltd. Pship v. Acordia of Illinois, Inc., 367 Ill. App. As explained below, the 9th Circuit held that the "primary purpose" of the communication must be legal advice in order to stay protected. The battles over whether such communications are properly protected under such doctrines are typically fought by outside counsel in the context of active litigation. Therefore, the panel saw no reason to adopt or apply the panel's formulation in Kellogg but left open the possibility that it could, in the future, adopt such a test in certain close cases. 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. 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. https://www.mololamken.com/professionals-michelle-parthum, https://www.mololamken.com/professionals-benjamin-woodring, https://www.mololamken.com/professionals-232. 1996-2022 Davis Wright Tremaine LLP. The defining factor is whether the document reveals the . Paul Falcone (www.PaulFalconeHR.com) is CHRO at the Motion Picture & Television Fund in Los Angeles and author of101 Tough Conversations to Have with Employees, 101 Sample Write-Ups for Documenting Employee Performance Problems, 96 Great Interview Questions to Ask Before You Hire, and 2600 Phrases for Effective Performance Reviews. The question is which of these communications fall within the protection of the attorney-client privilege. Rather, the "because of" test considers the totality of the circumstances and examines "whether a dual-purpose communication was made 'because of' the need to give or receive legal advice. 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. ", The panel rejected the "because of" test despite its use in the work-product context. at 759 (emphasis added). Refrain from making negative comments about someone in electronic communications. October 26, 2020 Practice Points Protecting Attorney-Client Privilege and Work-Product Doctrine in Internal Investigations Two recent cases highlight the risk of disclosure of investigatory materials. Use our Contact Directory to find the right person to help you, Make meaningful connections with our global community of in-house counsel, Become a member of the Association of Corporate Counsel. Ordinary work product is freely discoverable in Illinois, even when generated by an attorney in preparation for trial. 6241 CASS AVENUE . temp_style.textContent = '.ms-rtestate-field > p:first-child.is-empty.d-none, .ms-rtestate-field > .fltter .is-empty.d-none, .ZWSC-cleaned.is-empty.d-none {display:block !important;}'; and Clay Patmont, Anchor QEA, LLC . 1. The PMQ teaches managers to lead effectively, giving HR more time to meet the demands of the workplace. Privileged and Confidential, Prepared at the Request of Counsel . 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. 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. Check out this resource to view the full report and find out if companies are prepared to meet the looming updated guidelines. Please log in as a SHRM member. Rule 5: Do not communicate the information discussed with the attorney with others unless instructed to do so. If the privilege for one document is waived, it is possible that the privilege may be waived for other documents covering the same subject matter as well. To that end, this article discusses the attorney-client privilege, the attorney work product protection, and related doctrines, with a specific focus on how these doctrines apply to in-house counsels communications. 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. The control group test is much more restrictive than the Upjohn test. However, the company can only act through its employees. 9th Circuit Clarifies Attorney-Client Privilege Test | Davis Wright However, these risks can be avoided by being informed and diligent about preserving privilege before litigation begins. Such an indication, however, is not dispositive of privilege, and practitioners should avoid overusing notations for privilege that will dilute legitimate claims of privilege. The reality and dangers of electronic communications require companies to think carefully and proactively about their role in potential litigation. The attorney-client privilege has long been held to apply in the corporate context. 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. Separate legal and business aspects of communication where sensitive matters are involved. To protect the privilege, the corporate client has the burden of showing that the in-house counsels communication (1) was between an attorney and his client, (2) was made for the purpose of providing legal advice to the corporation and (3) that the communication was intended to be, and was in fact, kept confidential. Accordingly, contract drafts, for example, will generally not be protected under the work product doctrine. Conversations are privileged only if the constituent is seek- ing legal advice. 0:04. Understanding how these doctrines work, including the unique issues these doctrines present for in-house lawyers, is essential for in-house lawyers to ensure their compliance with their duty of confidentiality. If you cannot reach colleagues by telephone or meet them in person, simply send them an e-mail saying, Please call me.. The steps that follow will help increase the chances that a particular communication or series of communications can withstand legal scrutiny and remain privileged, but without a crystal ball, you can't guarantee that the privilege will be sustained because a court has the discretion to disallow the privilege. Interview notes are likely discoverable because facts are not privileged. In addition, the scope of the doctrine has not yet been clarified with precision. [1] Making an investigative report to the government regarding the investigations findings may result in a waiver of the privilege and work product protection. v. Phelps Dodge Refining Corp. From the inception, therefore, of a corporate counsel-led internal investigation precautions should be taken. Electronic communications are instantaneous. Co., 2019 IL App (1st) 181579, 42. In-house counsel should follow these basic rules in order to prevent potentially disastrous results in later litigation. 1991). Date: y 16, 2015 From: Michael Whelan, P.E. In the course of representing the company, the in-house lawyer will generally communicate with many employees for different reasons. Given both the preparation-for-trial requirement and the narrower scope of work product protection under Illinois law compared to federal law, the key takeaway for in-house counsel is that much of their work product may not be protected under the work product doctrine. Although there are no reported decisions on the issue of whether disclosure of a confidential source's name constitutes waiver of the privilege, at least with regard to attorney-client privilege, Kentucky Rules of Evidence make clear that disclosure of a confidential source's name to one's lawyer does not constitute waiver of the privilege. The attorney-client privilege has long been held to apply in the corporate context. When in doubt, pick up the phone and call your attorney before hitting the send button. This elite group 62% of whom hold C-suite titles comprised decision-makers from company leadership and key departments including information systems and information technology, privacy and security, legal and compliance, operations and finance, and marketing in response to states set to effect stricter requirements around consumer privacy rights in 2023. Note that there are no guarantees when it comes to invoking the attorney-client privilege. First, consider the means of communication. 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. Dist. In addition, if an e-mail contains an attachment, that attachment is subject to the same discovery issues discussed above. 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. Legal privilege of corporate internal investigations under US law If it appears that the communication is to serve a dual purpose, one for transmittal to an attorney 'in the course of professional employment' and one not related to that purpose, the question presented to the trial court is as to which purpose predominates."). 3. There are two principal grounds for a defendant to refuse to produce documents: Privilege - communications with attorneys for the purpose of seeking legal advice. Procedures for Invoking Privilege and Work-Product Protection Federal Rule of Civil Procedure 26 (b) (5) provides the procedural mechanism for withholding privileged material or material that is subject to protection as work product. You want your constituents to be open with you. Predominantly for the Purpose of Legal Advice. What does this mean, in practical terms? Id. What is the most practical way of maintaining privilege without having to make a case-by-case determination if possible? } Before the advent of e-mail, lawyers and clients might proofread a letter multiple times before . Donald Trump tape: 'This is secret information' - USA TODAY Members may download one copy of our sample forms and templates for your personal use within your organization. By contrast, employees who merely created correspondence and documents in order to seek legal advice from in-house counsel were not members of the control group. For example, you could use the wording: "Privileged and confidential: prepared for the purpose of obtaining legal advice/prepared for the purpose of litigation or arbitration". See, e.g. It is a fact of modern life that an enormous volume of information is electronically created, exchanged, and stored. Accordingly, communications to and from attorneys may involve a "dual-purpose" and contain both legal and non-legal analysis. 5 Id. Interview memoranda should memorialize what was learned in the interview but should also contain counsels interpretations, mental impressions, thoughts and analysis. Key Tips. 2012); Costello v. Poisella, 291 F.R.D. Because it is difficult or impossible to know before litigation arises whether state or federal law will control issues of privilege, it is prudent for in-house counsel to presume that the control group test will apply, and to restrict communications conveying legal advice to members of that group when possible. 508, No. 3d 276, 278-79 (1st Dist. Additionally, in-house counsel should keep in mind that even if a communication is made predominantly for the purpose of legal advice, the privilege protects only the communication itself, not the underlying facts. Hold Everything In Confidence: Confidential vs Privileged Information Most litigators and their clients can recount horror stories of smoking gun e-mails, text messages, Bloomberg chat messages, or social media posts, that so damage their case beyond repair that settlement discussions are initiated. } 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. He also previously worked as a litigation associate at Boies Schiller Flexner LLP. In. at 394-95. 1985). In so holding, the 9th Circuit joined the 2nd, 5th, 6th, and D.C. She represents clients before the United States Supreme Court, the federal courts of appeals, and other federal and state courts. 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 discoverable by opposing counsel if a lawsuit were to ensue. the provision of legal advice. U.S. This may mean that instead of sending one email that is 90% business advice and 10% legal advice, an in-house lawyer may be better off separating the message into two emails, one addressing just the business advice and the other addressing just the legal advice.
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