August 15 Meeting Attorney Client Privilege _ www.bit.ly/taiho123

EFFECTIVE IN-HOUSE COMMUNICATIONS AND PRESERVING THE PRIVILEGES Presented By: August, 2006 John Eldridge Haynes and Boone, LLP (713) 547-2229 and Chris Chaffin BMC Software PRIVILEGES (FRE 501) • • • • • • • Attorney Client (Tx Rule 503) Work Product Doctrine (TRCP 192) Against Self-Incrimination (5th Amendment) Husband – Wife (Tx Rule 504) Communications to Clergy (Tx Rule 505) FRE 501 Statutory Basis (States) and Common Law Basis (Federal) • In Diversity Cases, State Law General Overview of the AttorneyClient Communication Privilege • • • • • • In order to establish the attorney-client communication privilege , there must be a: Communication between a Lawyer and Client that was Confidential and remained Confidential for the purpose of seeking or giving Legal Advice, not business advice Who is the Lawyer? Who is the Lawyer? • • • • • Rule 503 Corporate Counsel Corporate Counsel, Licensed in any State Foreign Attorneys Outside Counsel Who is the Lawyer? • Rule 503 of the Texas Rules of Evidence: A “lawyer” is a person authorized, or reasonably believed by the client to be authorized, to engage in the practice of law in any state or nation Who is the Lawyer? Agents or “Representatives” of the Attorney • • • • • • Accountants Investigators Consultants Patent Agents Special Counsel Paralegals Who is the Lawyer? • A “representative of the lawyer” is: (A) one employed by the lawyer to assist the lawyer in the rendition of professional legal services; or (B) an accountant who is reasonably necessary for the lawyer’s rendition of professional legal services In-House Counsel as Client or Attorney Business Advice versus Legal Advice • Where in-house counsel is also involved in the business matters of the company, e.g as an officer of the company, the company must show that the advice was given when the lawyer was wearing the lawyer’s hat 10 The Work Product Exemption • Rule 192.5 of the Texas Rules of Civil Procedure defines Work Product: (1) Material prepared or mental impressions developed in anticipation of litigation or for trial by a party or a party’s representatives, including the party’s attorneys, consultants, sureties, indemnitors, employees, or agents; Or 27 The Work Product Exemption • Rule 192.5 Or (2) a communication made in anticipation of litigation or for trial between a party and the party’s representatives or among a party’s representatives, including the party’s attorneys, consultants, sureties, indemnitors, insurers, employees or agents 28 Examples of Documents that are Not Work Product • Topic outline prepared by in-house counsel for an oral presentation • Consultant documents submitted to regulatory authorities • Materials prepared in the ordinary course of business or pursuant to public requirements unrelated to litigation 29 Examples of Documents that are Not Work Product • Draft contract prepared by transactional attorney • Internal memorandum from one attorney to another reviewing transaction for client • Attorney notes made before litigation was contemplated 30 Examples of Documents that are Not Work Product • Litigation Disclosures concerning experts, trial witnesses, witness statements, contentions • Trial exhibits • Identification of potential parties and potential witnesses • Photographs to be offered into evidence Rule 192.5 of the Texas Rules of Civil Proc 31 Examples of Work Product • Attorney notes from interview of witness in anticipation of litigation or in connection with litigation • Documents prepared in connection with litigation that has concluded 32 Ethical Issues – Texas Disciplinary Rule 1.05 • “Confidential Information” includes “privileged information” • Rule refers to FRE 501, TRE 503 • Lawyer obligated not to reveal confidential information, except: – – – – – when authorized by client when client consents to client representatives to comply with Court orders to prevent crime or fraud (by client) 33 Electronic Data and Communications • • • • • Same rules apply as to paper documents Identify attorneys Identify all recipients Be careful to designate as confidential Encryption • Limit distribution • Segregate factual information 34 Protecting E-mails • Use an appropriate subject line referencing the litigation or subject matter • Write your emails like you would a letter instead of like a phone call • If your client’s email could be read out of context, clarify your client’s email in your response 35 Protecting Emails, continued • Use language that clearly shows you are providing advice or responding to a request for advice • Limit the dissemination of your email and advise your client not to forward emails from attorneys to non-attorneys or to non-employees • Be careful to reply to the correct email, not the email that was attached 36 Waiver of the Privilege • Intent – If communication was intended to be communicated to a third party, it will not be protected by the attorney-client privilege • Voluntary/Consensual Disclosure – if the holder of the privilege, i.e a client representative, voluntarily discloses or consents to disclosure of any significant part of a communication, the privilege is waived • Subject Matter v Communication – Disclosing a subject discussed with an attorney does not waive the privilege; waiver occurs if the person discloses part of the communication itself • Selective Disclosure – Disclosure of part of a privileged communication may waive the attorney-client privilege as to the whole communication 37 Electronic Discovery • New Federal Rules (12/06) will address some issues on privilege (Rules 26, 16) • Costs of E-Discovery can be huge • Parties should agree about privilege claims (e.g., that inadvertent disclosure can be reviewed) 38 Making it Easier to Claim Privilege • Inform your clients of the rules • Mark your privileged communications as privileged • Don’t mark your non-privileged communications as privileged • Make sure you include a signature block with information that shows you are an attorney 39 Internal Investigations • Highly sensitive information – need to establish privilege and work product protections • Voluntary waiver by corporations is more frequent (DOJ guidelines regarding corporation) • Waivers can lead to private litigation and “torched” employees • Selective waiver not favored by courts 40 International Issues • Privileges not as robust in most other countries • Europe accords protections primarily to outside counsel, not inside, but this could be changing • Difficult for in-house counsel to count on confidentiality in Europe 41