As in-house counsel one of the questions you frequently ask yourself is “how am I ever going to get all of this stuff done?” Don’t worry, you are not the only one asking that question. In the in-house world there is never enough time, money, resource or people to get to everything that needs to be done. If you’re someone who cannot live with this type of situation, then you will not be happy as an in-house attorney. On the other hand, if you do not faint at the sight of an endless “to-do” list and a decreasing legal budget, you’ve overcome the biggest hurdle and you’re probably interested in trying to figure out ways to get more done within the hours you currently work and still leave some time for your family and yourself. I have written about using technology to increase productivity but there are other things you can do.
First, let me say that I struggled with this problem almost every day I was in-house – especially when it came to balancing out time spent on work vs. time spent with my family. I put a lot of thought and effort into trying different things to help me be more productive at the office so I could get myself out the door at a reasonable time every night. I didn’t always get it right, but over the years I found a number of things that did help. This edition of Ten Things will share some of those ideas on how to be more productive every day.
Earlier this year I discussed data privacy essentials for in-house counsel (click here to read). The post discussed a number of basic data privacy issues, including the 2000 U.S.-EU Safe Harbor Agreement. The agreement allows U.S. companies that register and agree to its terms to legally transfer personal data from the EU into the U.S. The agreement was necessary because the European Commission (the “Commission”) determined that the U.S. did not have “adequate” data protection laws and, therefore, without such an agreement the ability to transfer personal data out of the EU and into the U.S. was limited due to provisions of Article 25(6) of the 1995 Data Protection Directive. The Safe Harbor Agreement remedied the problem by creating a mechanism under which U.S. companies could agree to apply core EU data protection principles to personal data and subject themselves to regulatory oversight by the Federal Trade Commission or the Department of Transportation.
Last week (October 6, 2015) the European Court of Justice invalidated the Safe Harbor Agreement. The court found that the agreement did not provide “essentially equivalent” data protection to EU citizens (primarily because of the then unfettered access to personal data by U.S. intelligence agencies under the PRISM program). The court also held that local Data Protection Authorities (DPAs) are empowered to independently assess whether a non-EU country provides adequate protection regardless of whether the Commission has already made such a determination that it does.
The result is a big mess regarding how companies that relied on the Safe Harbor Agreement can legally transfer personal data out of the EU and into the U.S. and how things will work in the future if DPAs can override a Commission decision on the adequacy of data protection in non-EU countries. This edition of Ten Things discusses some practical things U.S. companies should do next in light of last week’s development.
You’re having lunch with someone from the business and talking about a project that’s not going well and could lead to unhappiness on both sides – your company and the customer. Your buddy is spilling her guts about several of the problems they are encountering on the project and her concern that they may not be performing up to the contract terms. Your first thoughts are that she’s being overly harsh on herself and the team as some of the things she is mentioning may not be a big deal and there is time to correct them. Then she tells you not to worry about it too much because she and her team have been marking all of their emails and other documents discussing the problems as “Attorney-Client Privilege” so that the team can write down whatever they want and it will never be seen by the customer. Oh crud, (or words to that effect) you think. This is a real problem.
One of the in-house lawyer’s most valuable tools is the attorney-client privilege and the ability of the client to ask pointed and raw questions for the purpose of obtaining legal advice. If not utilized properly, however, this tool can turn into a ballistic missile aimed right at your company. The applicability and proper use of the attorney-client privilege is a very misunderstood area, especially in the in-house world. There are a number of things both counsel and the client need to know in order to avoid common mistakes and provide the best possible case for claiming the privilege. Since some courts are looking at in-house counsel assertions of privilege with a wary eye, it is now more important than ever to get this right. This edition of Ten Things will discuss what is necessary to claim and preserve the attorney-client privilege.