attorney client privilege

Ten Things: The Attorney-Client Privilege – What You Need to Know

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.

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Ten Things: Common Ethics Issues for In-House Counsel

I was in-house counsel for over 20 years and served as Chief Compliance Officer for a good part of that time.  One of the challenges I recall for me and my legal team was finding practical advice for in-house counsel around ethics issues.  We held a number of CLE presentations on ethics every year — helpful in terms of yearly mandatory ethics-related CLE hours.  While welcomed, the presentations generally left me less than satisfied because most of them were heavily focused on parsing out the text of the relevant Rules of Professional Responsibility (in our case, Texas), with a lot of focus on words like “shall” and “may.”  I am not saying this is not important, but what I came to realize is that many of the ethics issues I dealt with as in-house counsel were broader than what a specific section of the rules did or did not mandate me to do.  Instead, what I really needed was a general awareness of my different ethical obligations (including those under the rules) and whether I knew or could easily find the answer to my problem, or if I needed to ask someone for help to figure out the next move.

This edition of Ten Things will take on that challenge and discuss some of the basic ethics issues faced by in-house counsel and how to deal with them or what to keep in mind as you analyze the situation.  There are definitely some traps out there for the unwary.  Hopefully, after reading this you’ll have a better understanding of some of the key things around ethics you need to keep in mind as in-house counsel and when you may need to ask for help.  Apologies to my international readers as this is a pretty U.S.-centric discussion though I think the themes apply globally.

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