Attorney-Client Privilege Issues

in the

Corporate Setting

Privilege Issues

Privilege Issues

• Who is “holder “ of the corporation privilege

Privilege Issues

• Who is “holder “ of the corporation privilege

• Who gets to claim the privilege or waive it

Privilege Issues

• Who is “holder “ of the corporation privilege

• Who gets to claim the privilege or waive it

• Whose intent will be taken to be corporation’s

Privilege Issues

• Who is “holder “ of the corporation privilege

• Who gets to claim the privilege or waive it

• Whose intent will be taken to be corporation’s

• Whose law governs for determining scope and application of the privilege

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Privilege Issues

• Who is “holder “ of the corporation privilege

• Who gets to claim the privilege or waive it

• Whose intent will be taken to be corporation’s

• Whose law governs for determining scope and application of the privilege

• What communications fall within privilege

Purpose of Privilege

Purpose of Privilege

• Encourage full and frank disclosure

Purpose of Privilege

• Encourage full and frank disclosure

• Promote public interest in securing observance of law and administration of justice

Evidence Rule 503 Protects

Evidence Rule 503 Protects

• Confidential communications

Evidence Rule 503 Protects

• Confidential communications

• Made for purpose of facilitating rendition of legal services

Evidence Rule 503 Protects

• Confidential communications

• Made for purpose of facilitating rendition of legal services

• To the client

Evidence Rule 503 Protects Communications Between:

Evidence Rule 503 Protects Communications Between:

• Client (or its representative) and lawyer (or his/her representative)

Evidence Rule 503 Protects Communications Between:

• Client (or its representative) and lawyer (or his/her representative)

• Client’s lawyer and lawyer’s representative

Evidence Rule 503 Protects Communications Between:

• Client (or its representative) and lawyer (or his/her representative)

• Client’s lawyer and lawyer’s representative

• Client or lawyer and lawyer representing a party with a common interest

Evidence Rule 503 Protects Communications Between:

• Client (or its representative) and lawyer (or his/her representative)

• Client’s lawyer and lawyer’s representative

• Client or lawyer and lawyer representing a party with a common interest

• Client representatives

Evidence Rule 503 Protects Communications Between:

• Client (or its representative) and lawyer (or his/her representative)

• Client’s lawyer and lawyer’s representative

• Client or lawyer and lawyer representing a party with a common interest

• Client representatives

• Lawyers representing a client

What determines if communication is privileged

What determines if communication is privileged

• Content

What determines if communication is privileged

• Content

• Purpose

What determines if communication is privileged

• Content

• Purpose

• Who it is made by

What determines if communication is privileged

• Content

• Purpose

• Who it is made by

• Who it is made to

What does NOT determine if communication is privileged

What does NOT determine if communication is privileged

• Participation of lawyer does not make it privileged

What does NOT determine if communication is privileged

• Participation of lawyer does not make it privileged

• Saying it’s privileged does not make it so

What does NOT determine if communication is privileged

• Participation of lawyer does not make it privileged

• Saying it’s privileged does not make it so

• Distribution can affect determination of privilege

“Good cause” to invade privilege in derivative suits

“Good cause” to invade privilege in derivative suits

• Plaintiff represents a substantial portion of the shareholders

“Good cause” to invade privilege in derivative suits

• Plaintiff represents a substantial portion of the shareholders

• Plaintiff appears to have a meritorious claim

“Good cause” to invade privilege in derivative suits

• Plaintiff represents a substantial portion of the shareholders

• Plaintiff appears to have a meritorious claim

• Plaintiff shows a need for the information

Rule of Professional Conduct 1.13

Rule of Professional Conduct 1.13

• In dealing with directors, officers, employees, members, shareholders

Rule of Professional Conduct 1.13

• In dealing with directors, officers, employees, members, shareholders

• Lawyer shall explain identity of the client

Rule of Professional Conduct 1.13

• In dealing with directors, officers, employees, members, shareholders

• Lawyer shall explain identity of the client

• Lawyer’s first duty is to the client

Rule of Professional Conduct 1.13

• In dealing with directors, officers, employees, members, shareholders

• Lawyer shall explain identity of the client

• Lawyer’s first duty is to the client

• When organization’s interests are adverse to the individuals lawyer is dealing with

Corporate Miranda Warning

Corporate Miranda Warning

Mr. Jones began by providing our standard warning, which explained that:

Corporate Miranda Warning

Mr. Jones began by providing our standard warning, which explained that:

• We are attorneys for the Company and not any individual, including Mr. White

Corporate Miranda Warning

Mr. Jones began by providing our standard warning, which explained that:

• We are attorneys for the Company and not any individual, including Mr. White

• The conversation was subject to the attorney-client privilege

Corporate Miranda Warning

Mr. Jones began by providing our standard warning, which explained that:

• We are attorneys for the Company and not any individual, including Mr. White

• The conversation was subject to the attorney-client privilege

• The privilege could be waived by the Company if it so chooses.