Attorney-Client Privilege Issues in the Corporate Setting

Privilege Issues

Who is “holder “ of the corporation privilege 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

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.