INTRODUCTION Philip Schaeffer an overview of the rules Andrew - - PowerPoint PPT Presentation

• Philip Schaeffer – an overview of the rules
• Andrew Oringer, moderator – a discussion of

benefits/compensation considerations

• David Keyko – a case study

INTRODUCTION

2

Attorney-Client Privilege Issues for Corporate In-House Counsel

3

Philip H. Schaeffer

• Attorney-Client Privilege of Corporations
• Privilege Protects Only a Communication to the Extent It Seeks and

Receives Confidential Legal Advice

• Discriminatory Treatment by Courts Toward In-House Counsel Compared

to Outside Counsel

• Who Represents the Client When the Client is a Corporation?
• Practice Pointers
• Conflict of Laws and Overseas Rules
• The Fiduciary Duty Exception
• Work Product Protection
• Investigations
• Disclosures in the Audit Context

Attorney-Client Privilege and Work Product Protection Issues for Corporate In-House Counsel

4

• “(1) Where legal advice is sought, (2) from a professional or legal adviser in

his capacity as such, (3) the communication relating to that purpose, (4) made in confidence, (5) by the client, (6) are at his instance protected, (7) from disclosure by himself or by the legal adviser, (8) except the protection be waived.” - 8 Wigmore on Evidence, Section 2292 at 554 (McNaughton

• rev. ed. 1961)

THE ATTORNEY-CLIENT PRIVILEGE

5

• “Firm” or “law firm” denotes a lawyer or lawyers in a law firm partnership,

professional corporation, sole proprietorship

• r
• ther

association authorized to practice law; or lawyers employed in a legal services

• rganization or the legal department of a corporation or other organization.

ABA MODEL RULE 1.0(c)

6

• (a)

Except as provided in paragraph (b), a lawyer shall not represent a client if the representation involves a concurrent conflict of interest. A concurrent conflict of interest exists if:

– (1) the representation of one client will be directly adverse to another client; or – (2) there is a significant risk that the representation of one or more clients will be materially limited by the lawyer’s responsibilities to another client, a former client or a third person or by a personal interest of the lawyer.

• (b)

Notwithstanding the existence of a concurrent conflict of interest under paragraph (a), a lawyer may represent a client if:

– (1) the lawyer reasonably believes that the lawyer will be able to provide competent and diligent representation to each affected client; – (2) the representation is not prohibited by law; – (3) the representation does not involve the assertion of a claim represented by the lawyer in the same litigation or other proceeding before a tribunal; and – (4) each affect client gives informed consent, confirmed in writing.

ABA MODEL RULE 1.7 CONFLICTS OF INTEREST – CURRENT CLIENTS

7

• (a)

Except as provided in paragraph (b), a lawyer shall not represent a client if the representation involves a concurrent conflict of interest. A concurrent conflict of interest exists if:

– (1) the representation of one client will be directly adverse to another client; or – (2) there is a significant risk that the representation of one or more clients will be materially limited by the lawyer’s responsibilities to another client, a former client or a third person or by a personal interest of the lawyer.

• (b)

Notwithstanding the existence of a concurrent conflict of interest under paragraph (a), a lawyer may represent a client if:

– (1) the lawyer reasonably believes that the lawyer will be able to provide competent and diligent representation to each affected client; – (2) the representation is not prohibited by law; – (3) the representation does not involve the assertion of a claim represented by the lawyer in the same litigation or other proceeding before a tribunal; and – (4) each affect client gives informed consent, confirmed in writing.

ABA MODEL RULE 1.7 CONFLICTS OF INTEREST – CURRENT CLIENTS

8

• (a)

A lawyer who has formerly represented a client in a matter shall not thereafter represent another person in the same or a substantially related matter in which that person’s interests are materially adverse to the interests of the former client unless the former client gives informed consent, confirmed in writing.

• (b)

A lawyer shall not knowingly represent a person in the same or a substantially related matter in which a firm with which the lawyer was formerly associated had previously represented a client:

– (1) whose interests are materially adverse to that person; and – (2) about which the lawyer had acquired information protected by Rules 1.6 and 1.9(c) that is material to the matter; unless the former client gives informed consent, confirmed in writing.

• (c)

A lawyer who has formerly represented a client in a matter or whose present

• r former firm has formerly represented a client in a matter shall not thereafter:

– (1) use information relating to the representation to the disadvantage of the former client except as these Rules would permit or require with respect to a client, or when the information has become generally known; or – (2) reveal information relating to the representation except as these Rules would permit or require with respect to a client.

ABA MODEL RULE 1.9 DUTIES TO FORMER CLIENTS

9

• “Informed consent” denotes the agreement by a person to a proposed

course of conduct after the lawyer has communicated adequate information and explanation about the material risks of and reasonably available alternatives to the proposed course of conduct.

ABA MODEL RULE 1.0(e)

1 0

• A lawyer shall not reveal information relating to the representation of a

client unless the client gives informed consent, the disclosure is impliedly authorized to carry out he representation or the disclosure is permitted by [the exceptions to confidentiality set forth in] paragraph (b) [of this rule].

ABA MODEL RULE 1.6(a)

1 1

• Representation of Affiliates (Teleglobe issues) and the Application of the

Relevant Rules of Professional Conduct to In-House Counsel and to the Attorney-Client Privilege

• The Fiduciary-Duty Exception to the Attorney-Client Privilege and Its

Alternative Justifications on the Grounds of:

– The Joint-Representation an Common-Interest Exceptions – The Crime/Fraud Exception

SELECTED ISSUES CONFRONTING CORPORATE (IN-HOUSE) COUNSEL

1 2

Attorney-Client Privilege Issues For Corporate In-House Counsel 25 September 2017

1 3

The Attorney-Client Privilege in the Audit Context

• Attorney-client privilege does not apply to materials

created by auditors in the course of performing routine audit functions

• Disclosure of attorney-client privileged materials to

auditors waives the privilege

• Other privileges may apply

Attorney-Client Privilege Issues For Corporate In- House Counsel 25 September 2017

1 4

The Work Product Doctrine in the Audit Context

Does the doctrine apply?

• The “because of” litigation test
• The “primary motivating purpose”

test

• The 1st Circuit approach

Is the protection waived by disclosure to an auditor?

– The adverse relationship test – The conduit to an adversary test

Attorney-Client Privilege Issues For Corporate In- House Counsel 25 September 2017

1 5

Practical Suggestions

• Exercise caution
• Limit audit scope
• Provide appropriate direction to outside

counsel

• Consider confidentiality agreements with

auditors

• Limit disclosures

1 6

Navigating Murky Waters – Certain Special Ethical Considerations for the ERISA/Compensation Lawyer

Andrew L. Oringer

17

Introduction

• Recent developments have heightened the focus on the

discharge of fiduciary and ethical responsibilities by principals and attorneys

• This focus has resulted in scrutiny by Congress, regulators

and the judiciary

• Legislative and regulatory activity has focused on a

number of factors, including

– Independence – Transparency

• These developments may raise special concerns for ERISA

and compensation attorneys

– Often dealing with individuals who wear “two hats” and who otherwise have personal concerns and interests

18

Certain Basic Principles

• Who is the client?

– Duty of confidentiality; privilege – Representing multiple clients – Representing an organization, and dealing with its employees and agents

• Distinguish - who pays the bills?
• But be careful about confidential information in third-party bills
• Scope of engagement
• Consent

– Waivers from adverse parties – Waivers from jointly or simultaneously represented clients

• Non-waiver (“political”) issues

– Intake issues – But is this a thicket into which you want to go?

19

Public Companies and Executive Compensation

• Functioning in an environment where second-

guessing is rampant

• Risks of liability, shareholder backlash, negative

publicity

• Special issues regarding who is the client

– Compensation committees may need separate counsel – At least three choices – the issuer, the Board, the Compensation Committee

• Distinguish from – who pays the bills?

– The engagement letter

• Legislative Overlay

– Reporting up – Consultant independence – Other Dodd-Frank considerations

20

Dealing with Fiduciary Issues Under ERISA

• Nature of the rules

– General prudence issues – Prohibited transactions

• Possibility of personal liability
• Context

– Department of Labor audits; voluntary internal audits – Other varying contexts (general, M&A, financial products, etc.)

• Form 5500 - signed under penalty of perjury
• Privilege

– In general – Fiduciary exception

21

• Significance of identifying the client
• Who’s at what meeting?
• Practical issues
• Non-privilege perception ramifications
• Context

– Executive compensation

• In general
• “Executive sessions”

– Fiduciary matters

• In general
• Possible distinctions between the scope of the relationship and

the scope of the privilege?

• Additional practical considerations dealing with regulators

Privilege

22

Audit Response Letters

• Who is the client?
• Privilege-related considerations

Ethics, Privilege and Investigations

2 3

The “Rasputin” Investigation

David G. Keyko

• 1. Is it true that the Russian February Revolution
• verthrowing the Tsar did not take place in

February?

A. Yes B. No

2 4

Answer

• Yes, it occurred in March on the Gregorian calendar (it

was in February on the Julian calendar).

2 5

• 2. Is Cheka the Soviet car manufacturer that made

the Lada?

A. Yes B. No

2 6

Answer

• No. It was the Soviet Secret police force created by

Lenin by decree on December 20, 1917 shortly after he came to power as a result of the October Revolution (which took place in November). The Lada was made by AvtoVAZ.

2 7

Play Prologue and Scene 1

28

A. Yes B. No

2 9

• 3. Is there any type of privilege that might shield

Alexei and Anastasia’s report?

Answer

• Yes, possibly the self-critical analysis privilege, but not

the attorney-client privilege.

3 0

• 4. Does Boris have a duty to tell Moskva or

Kremlin to institute a litigation hold?

A. Yes B. No

3 1

Answer

• No, there is no current threat of litigation. The

information that Alexei and Anastasia collected points to potential concerns, but without further investigation it is not clear what will happen.

3 2

• 5. Is it clear that Moskva personnel and Kremlin

lawyers may review Grigory's privileged communications to his lawyer that were on his

• ffice computer?

A. Yes B. No

3 3

Answer

• No. The law varies by jurisdiction and depends on how

clear Moskva has made it that all the information on Moskva's computer system belongs to Moskva.

3 4

• 6. Can a proper claim be made that Boris's

communications with Leon, the PR person, are protected by the attorney-client privilege?

A. Yes B. No

3 5

Answer

• Yes. Courts have recognized that involvement of PR

personnel is necessary for the prosecution and defense of high profile matters. Care, however, is still needed.

3 6

• 7. Can a claim of attorney-client privilege be

made to protect Kremlin’s lawyers’ communications with Moskva personnel for purposes of rendering legal advice?

A. Yes B. No

3 7

Answer

• Yes. Kremlin's lawyers, however, should make clear

that in this instance they are representing both Kremlin and Moskva. Moreover, the sharing of privileged information on a need-to-know basis within the corporate family should not result in the loss of privilege so long as the interests of the corporate family members are aligned.

3 8

• 8. Boris should not investigate Moskva and

advise both Kremlin and Moskva because there is evidence that Kremlin’s and Moskva’s interests may be different?

A. Yes B. No

3 9

Answer

• No, there is no indication that Moskva's corporate

interest in getting to the bottom of the bribery issue is any different than Kremlin's even though the early indications are that any bribes appear to have been made

• nly to Moskva personnel and not Kremlin employees.

4 0

• 9. Is it clear that Boris's communications with

Lavrentiy at NKVD, a consultant Kremlin uses, will be covered by the attorney-client privilege?

A. Yes B. No

4 1

Answer

• No. Under the Kovel doctrine, Lavrentiy’s participation

will waive privilege unless he is acting as a "translator" for the lawyers so that they can render legal advice.

4 2

• 10. Does Boris have a duty to make

disclosure to prosecutors if he concludes it is likely that bribes were paid?

A. Yes B. No

4 3

Answer

• No. An attorney's duty of confidentiality under Rule 1.6

contains only very narrow exceptions under which an attorney, without client permission, may disclose confidential client information to a prosecutor. Generally, disclosure about a client’s involvement in a completed crime is not one of the exceptions.

4 4

• 11. Did Boris have a duty to give Alexei and

Anastasia a civil "Miranda" warning before interviewing them about their investigation?

A. Yes B. No

4 5

Answer

• No. There is no indication at this point that Alexei and

Anastasia have interests that are at odds with those of Moskva or Kremlin or that they might believe that they are being represented by Boris. That is not to say that an explanation might not be a good idea.

4 6

• 12. Can Alexei and Alexandra assert a reliance
• n counsel defense if, in fact, the government

alleges they were obligated to report to the Kremlin board?

A. Yes B. No

4 7

Answer

• No. The privilege for that advice belongs to Moskva.

Unless Moskva waives the privilege, Alexei and Alexandra cannot assert that defense.

4 8

• 13. Will communications with Alexandra Hesse

be covered by attorney-client privilege even though she is not an employee of Moskva?

A. Yes B. No

4 9

Answer

• Yes. While she is a consultant, she is acting as if she

were the head of Moskva and both internally and to the

• utside world, she likely is perceived as being the same

as an employee. Outsourcing an entire area of the business, as opposed to filling a single position, however, would be treated differently.

5 0

• 14. If calls are made to Kiev Company about the

unpaid bills and possible bribes, is it clear that those communications are "settlement negotiations" protected from disclosure?

A. Yes B. No

5 1

Answer

• No. No claims have been made yet. Reaching out to a

party before there is any threat of a dispute will probably not be considered to be part of a settlement negotiation, even if it may be good business practice.

5 2

• 15. Can Alexei and Anastasia claim attorney-

client privilege for their conversation with Boris and prevent Kremlin from disclosing the information Alexei and Anastasia have passed on to Boris?

A. Yes B. No

5 3

Answer

• No. They must be jointly represented along with

Kremlin by Boris to be in a position to block disclosure.

5 4

• 16. Can Boris insist that Alexei speak to him

before Alexei consults with his own lawyer?

A. Yes B. No

5 5

Answer

• No. Alexei has the right to consult with counsel and Boris should allow

him to do so. Boris may insist that Alexei cooperate, however, and if Alexei fails to do so, Alexei could probably be fired.

5 6

• 17. Is it obvious that Alexei's demand for

indemnification has no merit?

A. Yes B. No

5 7

Answer

• No. Alexei may have a right to indemnification under

the company's by-laws. There is also a right to statutory indemnification under some circumstances. Boris should investigate before responding.

5 8

Play Scene 2

5 9

• 18. Even though Nicholas Romanov is only

representing the Kremlin board, are his communications with Moskva personnel and Kremlin's in-house counsel privileged?

A. Yes B. No

6 0

Answer

• Yes. Again, communications with others in the

corporate family should not result in loss of privilege unless the disclosure is not necessary to accomplish the task given Nicholas by the Board or the personnel with whom Nicholas speaks have interests at odds with that

• f the Board.

6 1

• 19. Can the privilege be waived by Alexandra

Hesse forwarding Nicholas Romanov's emails to

• thers at Moskva?

A. Yes B. No

6 2

Answer

• Yes. If the emails are sent to those who do not need to

know the information or without an understanding that the communications will be kept confidential, privilege may be waived. Of course, should Alexandra simply forward the advice (and not the email) in a way that makes it unclear that the advice is from an attorney, the privilege also may be waived.

6 3

• 20. Does copying Natasha on emails about a

contract ensure that those emails will be covered by the attorney-client privilege?

A. Yes B. No

6 4

Answer

• No. The email must be composed and sent for purposes
• f obtaining attorney advice. Simply copying a lawyer

does not indicate that was the purpose of the

• communication. The wording of the email can help

establish privilege, by saying, for example, that the sender is seeking legal advice.

6 5

• 21. Does labeling all email communications as

"attorney/client privilege" further the claim of privilege?

A. Yes B. No

6 6

Answer

• No. While it is useful to label privileged

communications as such, overusing the label undercuts its value. Failure to use the label does not cause the privilege to be lost, so long as it can be demonstrated that the parties to the communication intended to keep it confidential.

6 7

• 22. Does Boris’s presence at a meeting and being

asked legal questions at the end of the meeting cloak the entire meeting in attorney-client privilege?

A. Yes B. No

6 8

Answer

• No. The mere presence of an attorney does not create
• privilege. The meeting must be for the purpose of

seeking and receiving legal advice to be entirely cloaked in privilege. Otherwise, only the requests made at the meeting for legal advice and the advice will be

• protected. To help assure protection of the entire

meeting, the attorney should call and run the meeting.

6 9

• 23. Are emails Moskva personnel are sending

directly to or copied to Lavrentiy at NKVD to provide him information he and the lawyers need for the investigation jeopardizing the attorney-client privilege claim?

• Yes
• No

7 0

Answer

• Yes. Under the Kovel doctrine, the consultant should be

acting as a "translator" for the attorney. If the client and consultant are communicating directly, this can undermine the assertion that the consultant is only rendering assistance to the lawyer so that the lawyer can give legal advice. This does not mean that Boris and Natasha have to directly receive all the information – they may use non-lawyer personnel at Kremlin under the lawyers’ supervision to assist them.

7 1

• 24. Is Boris’s and Natasha’s meeting with Josef

Dzughashvili covered by the attorney-client privilege?

A. Yes B. No

7 2

Answer

• Yes. Josef works for their client, Moskva, and he is

giving them information so that they can render legal

• advice. This, however, does not cloak the facts he tells

them in privilege, just what Josef said to Boris and Natasha.

7 3

• 25. Was it really necessary for Natasha to warn

Josef at the beginning of the interview about who her client was and who controlled the privilege?

A. Yes B. No

7 4

Answer

• Yes. Here, Josef may have had involvement in the

bribery issues and so he is under investigation. His interests and those of Moskva and Kremlin are potentially different. A warning should be given to dispel any misunderstanding.

7 5

• 26. Does Lavrentiy's participation in the

interview of Josef result in a waiver of the attorney-client privilege and attorney work product protection?

A. Yes B. No

7 6

Answer

• No. He is there to assist the attorneys, so under the Kovel

doctrine, there should not be a waiver.

7 7

• 27. Is it clear that Boris and Natasha can request

that third-parties like Cathy keep her interview confidential and she not cooperate with others except the prosecutor?

A. Yes B. No

7 8

Answer

• No. Model Rule 3.4(f) prohibits a lawyer from

requesting that a person who is not the lawyer's client refrain from voluntarily providing relevant information to another party. There are exceptions. A lawyer may ask employees, agents or relatives of a client not to cooperate if the lawyer believes those people’s interests actually will not be affected by refusing

• cooperation. The rule, however, is different in different

jurisdictions.

7 9

• 28. Are Boris's notes of the interview of Cathy

protected by both the attorney-client privilege and the work product doctrine?

A. Yes B. No

8 0

Answer

• No. They should be work product, but not attorney-

client privilege (work product usually only is applicable if another privilege does not apply). Note that factual portions of the notes may be discoverable if the

• pposing side can show a need and inability to

reasonably be able to obtain the information in another

• way. Thus, to best protect the notes, the attorney's views

should be interwoven.

8 1

• 29. Were Boris and Natasha obligated to say

something to either Josef or Cathy when each revealed information that might show he or she violated law, were subject to claims, or seemed to be lying (the watch and taking Moskva personnel on a trip to Paris)?

A. Yes B. No

8 2

Answer

• No. There is no obligation to warn a party that the

attorney does not represent. In fact, Rule 4.3 prohibits a lawyer from giving advice to an unrepresented party where the interests of the party and the lawyer's client may possibly be in conflict.

8 3

Play Scene 3

8 4

• 30. Were Nicholas and Boris violating any of

their ethical obligations by talking in the hallway outside the board room?

A. Yes B. No

8 5

Answer

• No. Rule 1.6 contains a duty of confidentiality, which a

lawyer may violate by talking in a public place. But, speaking outside a board room in the client's offices does not seem to be inadvisable, although the lawyers probably should have at least looked around before speaking.

8 6

• 31. Was Nicholas obligated to raise with the

Board the issue of conflicts when he was told by certain board members that they were concerned about their personal liability?

A. Yes B. No

8 7

Answer

• Yes. If a lawyer cannot properly represent an entire

group, the lawyer should raise the possible conflict with the group before proceeding. Further, if some of the directors have a personal interest that is at odds with that of the board as a whole, the attorney-client privilege can be lost by including those directors in the communications.

8 8

• 32. Was it proper for Nicholas to tell Board

members that they could not bring their own personal counsel to the Board meeting?

A. Yes B. No

8 9

Answer

• Yes. The presence of third parties – the lawyers – at the

board meeting could result in the waiver of privilege.

9 0

• 33. Will Nicholas’s report to the Board be

privileged despite the presence of Alexandra’s and Lavrentiy’s making part of the presentation?

A. Yes B. No

9 1

Answer

• Yes. The privilege should not be lost because of the

presence of an official of a related entity who needs to be

• present. Likewise, if Kovel has been followed, the

involvement of Lavrentiy should not result in a waiver

• f the privilege.

9 2

• 34. Does Nicholas's presentation of his Board

report to Moskva management in advance of the Board meeting waive attorney-client privilege?

A. Yes B. No

9 3

Answer

• No. Sharing privileged information with a related party
• n a need-to-know basis should not result in a waiver. If

the report were presented to people being investigated and reached negative conclusions about those people, a waiver might well occur.

9 4

• 35. Were all of Nicholas's communications with

Kremlin's in-house lawyers in London, Paris and Tokyo protected by attorney-client privilege under the laws of the UK, France and Japan?

A. Yes B. No

9 5

Answer

• No. While the privilege in the UK is much like that in

the US and so advice of in-house lawyers is protected, that is not true in France. In France, only independent lawyers may be members of the bar. In Japan, the privilege just extends to records in the possession of the lawyer or legal department.

9 6

• 36. Was the information that Nicholas shared

with the prosecutors under a promise of confidentiality protected by the attorney- client privilege or work product doctrine?

A. Yes B. No

9 7

Answer

• No. This would result in a waiver despite the

confidentiality agreement because the prosecutor is looking for wrong-doing at Kremlin and Moskva and the purpose of providing the report is to dissuade the prosecutor from taking action. Thus, the interests of Kremlin and Moskva, on the one hand, and the prosecutor, on the other, are not aligned.

9 8

Play Scene 4

9 9

Play Epilogue

1 0 0

• 37. Does disclosing a portion of Nicholas's

report waive the attorney-client privilege?

A. Yes B. No

1 0 1

Answer

• Yes. The entire report probably will no longer be

protected and the underlying attorney records may also be discoverable.

1 0 2

• 38. Does disclosing a portion of Nicholas's report

have implications for the claim that his report or Boris and Natasha's report was at some point protected by the attorney-client privilege?

A. Yes B. No

1 0 3

Answer

• Yes. While in many jurisdictions, a document is

considered privileged if a primary reason the document was created was to receive legal advice, the use of the report for public relations purposes calls into question whether the investigation really was created to provide legal advice or just for public relations reasons.

1 0 4

• 39. Does the report that Nicholas prepared have

a better claim to being privileged (at least before it was disclosed) than does the report prepared in-house by Boris and Natasha?

A. Yes B. No

1 0 5

Answer

• No. Legal advice of in-house counsel should be entitled

to the same protection as outside counsel's advice. An issue can arise, however, if it appears that the inside counsel's advice was really of a business nature. Because

• f this possibility, some courts have declined to assume

that communications with in-house counsel are privileged, but will make that presumption with regard to outside counsel's work.

1 0 6

• 40. Can Rasputin successfully assert the crime-

fraud exception to the attorney-client privilege based on a showing that Kremlin did not produce some evidence to the government investigators?

A. Yes B. No

1 0 7

Answer

• No. The advice Nicholas gave as to what it did and did

not have to disclose was for the benefit of Kremlin. The crime-fraud exception would only apply if Kremlin sought advice from Nicholas for the purpose of committing a fraud or crime.

1 0 8

• 41. If Kremlin filed reports with the SEC, were

Boris and Natasha obligated to do anything when Alexandra told them that no further investigation was necessary?

A. Yes B. No

1 0 9

Answer

• Yes. Under SOX 307, because they were aware of

evidence of a material breach of fiduciary duty and did not receive a satisfactory response from Alexandra, they were required to report to the board. Also, Rule 1.13 requires a lawyer, when representing an organization, to take additional steps if the lawyer concludes that the representative of the organization is acting in a way that is a violation of law or a violation of the individual’s

• bligation to the organization.

1 1 0

• 42. Are there limitations on making public

statements about claims and settlements as Leon has proposed?

A. Yes B. No

1 1 1

Answer

• Yes. Rule 3.6 places limits on lawyers making public

statements that will materially prejudice an adjudicative

• proceeding. This constraint is narrow and so probably

would not prevent the disclosure Leon is suggesting.

1 1 2

• 43. Was Nicholas obligated to tell his client,

the Board, that he accidentally disclosed confidential information to Fred?

A. Yes B. No

1 1 3

Answer

• Yes. When a lawyer makes a mistake that could cause prejudice to

the client, which the disclosure of confidential information to a reporter could, Rule 1.4 requires that the lawyer disclose this fact to the client so that the client can decide what to do. In certain circumstances, a mistake might require the lawyer to resign if the mistake caused the lawyer's personal interest (in avoiding liability) and the interests of the client to be at odds with each other. Rule 1.6, which requires the lawyer to protect a client's confidences, thus

• bligating the lawyer to seek to prevent a loss of privilege, does not

really come into play here. Fred, as a reporter, would not be

• bligated to return the material and so asking that the material be

returned might not accomplish anything (the analysis would be different were Fred an attorney). Of course, the client might well agree with Nicholas that the best course is to do nothing.

1 1 4

• 44. Does it matter for a work product claim that

Moskva has not sued the parties it planned to sue (suppliers), but other parties (customers) may sue it instead?

A. Yes B. No

1 1 5

Answer

• No. Once work product protection exists because litigation is anticipated,

like attorney-client privilege, it matters not in what proceeding the information is sought. The work product still will be protected even if the lawsuit for which it was created never eventuates.

1 1 6

• 45. Before speaking to the press about a client

matter, should an attorney receive prior client permission either expressly or impliedly?

A. Yes B. No

1 1 7

Answer

• Yes. Rule 1.6 obligates a lawyer to protect client confidences (which

includes information the lawyer learned during the course of the representation that might embarrass or harm the client). Given the broad scope of Rule 1.6 and uncertainty about what a reporter will ask, the client should decide what to say to the press and when. Note that sharing privileged information "off the record" with a reporter can result in a waiver of the privilege. A lawyer also should establish ground rules with a reporter as to what information the reporter may and may not use before speaking to the reporter.

1 1 8