[I realized too late after my last post that I have surpassed 100 blogs. Wow. No celebration but, to be honest, I never imagined I’d write that many when I started “Ten Things” back in November 2014. But, here we are, all dressed up and lots of places still to go. So, thanks for reading and keep those emails and suggestions coming!]
As an in-house lawyer, I was always interested in any legitimate way I could keep information generated by the company or the legal department confidential. Or, more importantly, out of the hands of our adversaries. All of which meant I needed to stay on top of many things, from trade secret protection to teaching the business to write smart. But, as a lawyer, I had a particular interest in how privilege might apply to the materials I – or my team – was working on. The most obvious was the attorney-client privilege, something I have written about in a past blog and which ranks first on my list in terms of protecting information. Somewhat less obvious, and not as sexy as its cool, buff older brother, is the work product privilege. While more limited in the circumstances in which it applies, it is pretty powerful and can save the day when something happens to make the attorney-client privilege fall away. Kind of how Batman can curb-stomp some villains when Superman’s having an off day. I think it’s time we gave the work product privilege some love and this edition of “Ten Things” discusses what in-house lawyers need to know about our new, best buddy:
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.