Whose Lawyer Am I Anyway? Nancy Gillette, General Counsel, Ohio - - PowerPoint PPT Presentation
Whose Lawyer Am I Anyway? Nancy Gillette, General Counsel, Ohio State Medical Association Rob Portman, Principal, Powers Pyles Sutter & Verville, PC Michael Williams, General Counsel, American Association of Clinical Endocrinologists First
Nancy Gillette, General Counsel, Ohio State Medical Association Rob Portman, Principal, Powers Pyles Sutter & Verville, PC Michael Williams, General Counsel, American Association of Clinical Endocrinologists
Conduct
local
representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.
don’t know?
compliance
represents the organization acting through its duly authorized constituents.
represent any of its directors, officers, employees, members, shareholders or other constituents, subject to the provisions of Rule 1.7 (conflicts). If the consent to the dual representation is required by Rule 1.7, the consent shall be given by an appropriate official of the
the shareholders.
constituents
substantial injury to the organization.
professional judgment and render candid advice. In rendering advice, a lawyer may refer not only to law but to other considerations such as moral, economic, social and political factors, that may be relevant to the client's situation.
Model Rule 1.2 – Scope of Representation and Allocation of Authority between Client and Lawyer . . .
(d) A lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent, but a lawyer may discuss the legal consequences of any proposed course of conduct with a client and may counsel or assist a client to make a good faith effort to determine the validity, scope, meaning or application of the law.
hiring/review)
Rule 1.8:
knowingly acquire an ownership, possessory, security or other pecuniary interest adverse to a client unless:
reasonable to the client and are fully disclosed and transmitted in writing in a manner that can be reasonably understood by the client;
reasonable opportunity to seek the advice of independent legal counsel on the transaction; and
essential terms of the transaction and the lawyer's role in the transaction, including whether the lawyer is representing the client in the transaction.
client and granted himself an equity ownership without complying with Rule 1.8
In representing a client, a lawyer shall not communicate about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized to do so by law or a court order.
In dealing on behalf of a client with a person who is not represented by counsel, a lawyer shall not state or imply that the lawyer is disinterested. When the lawyer knows
lawyer’s role in the matter, the lawyer shall make reasonable efforts to correct the
know that the interests of such a person are or have a reasonable possibility of being in conflict with the interests of the client.
Confidentiality v. Privilege?
you can be disciplined for violating it. (MRPC 1.6)
your client from disclosure during litigation or another proceeding. It is owned by the client, can be waived by the client, and if waived, can negatively affect your client in that proceeding or others. (FRE 501 and 502, Common law)
Model Rules of Professional Conduct: Rule 1.6 – Confidentiality of Info.
(a) A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation or the disclosure is permitted by paragraph (b). (b) A lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary [in accordance with 7 express exceptions to the rule] (c) A lawyer shall make reasonable efforts to prevent the inadvertent or unauthorized disclosure of, or unauthorized access to, information relating to the representation of a client.
FRE 501 – Privilege in a federal action is defined by the common law. In a civil action where state law governs, that state’s privilege rules apply. FRE 502 – Defines waiver rules.
Four Key Elements of Privilege:
client.
1 – COMMUNICATION Virtually all types of communications or exchanges between a client and attorney may be covered by the attorney-client privilege. Privileged communications include essentially any expression undertaken to convey information in confidence for the purpose of seeking or rendering legal advice. “The privilege extends to verbal statements, documents and tangible
attorney in confidence for the purpose of any legal advice” Haines v. Liggett Grp., Inc., 975 F.2d 81, 90 (3d Cir. 1992)
2 - MADE BETWEEN PRIVILEGED PERSONS
meet the privileged person element.
Who is the “client” when working with or for an organization? Traditional question was which employees most closely resembled a traditional client. The answer, generally was high-level officers and
In Upjohn Co. v. United States, 449 US 383 (1981), a case involving payments between Upjohn and foreign officials, SCOTUS found that notes related to an internal counsel investigation that included interviews with (non-control group) middle management were privileged.
Upjohn created a 5 factor test to guide the use of org. privilege:
legal advice; and
See also Rstmt of Law Governing Lawyers: Priv. extends to communications of any agent of employee of the corp. so long as
3 – IN CONFIDENCE
secret?
4 - FOR THE PURPOSE OF OBTAINING OR PROVIDING LEGAL ASSISTANCE FOR THE CLIENT.
communications, when considering whether this element is met.
investigation with both legal and business purposes. In re Kellogg Brown & Root, Inc., 756 F.3d 754 (2014))
Protects an attorney’s mental impressions, opinions and legal conclusions from discovery, despite the fact that these things are not necessarily privileged.
communications.
Hickman v. Taylor, 329 U.S. 495 (1947).
for a party 3) in anticipation of litigation.
Internal Investigations
and work product doctrine.
advice for an imminent legal proceeding rather than a routine occurrence.
the thoroughness of the investigation is critical for an employer to defend itself.
Best practices to maintain investigation privilege:
when doing so include the imminent legal fact-finding purpose of the investigation.
factors (interviewing personnel who have necessary info, needed for legal advice, intended to be confidential…)
proper file maintenance, etc…
the confidential nature of investigation and org. reserves right to waive privilege.
Best practices to maintain investigation privilege (cont.):
product will be separated from opinion work product.
Representing controlled/related corporate entities – “joint client privilege”
a subsidiary or subsidiaries on a matter of common interest, the corporate entities are in a joint client relationship with the legal department. Therefore, privileged communications between employees of corporate affiliates and centralized in-house counsel regarding a legal matter of common interest should generally be protected from disclosure. In re Teleglobe, 493 F.3d 345 (3d Cir. 2007).
Control group privilege beyond their role as a member of the control group – (Can a board member access privileged info when acting as a member or general citizen?)
adversarial to the organization in a legal proceeding.
produced during their director term.
privileged documents produced during their employment. However;
Representing employees or other members of the control group:
for counsel to rep. both the employee and corp.
company’s attorney-client privilege subject to waiver of the privilege in the sole discretion of the company;
concerns about his own potential legal exposure.”
If voluntary disclosure waives a privileged communications what happens if the disclosure is inadvertent?
to take prompt and reasonable steps to recover a privileged document after disclosure discovered.
not waive.
In 2008 FRE 502 was enacted. States parties could avoid waiver:
1. Inadvertent disclosure; 2. The holder of privilege took reasonable steps to prevent; and 3. Holder took prompt steps to rectify, including following FRCP 26(b)(5)(B) if applicable.
What is reasonable steps to protect?
protection given the significance of the communication?
Prompt and reasonable steps requires follow up on any obvious indications that a protected communication or information has been produced inadvertently. * In the event you receive privileged communications check applicable ethics rules.
More on Confidentiality
though that may be good practice.
alerting the highest authority), or in the event an applicable federal law trumps state ethics rules.
cyber security standards of care or face malpractice/ethics charges.
to another client, or
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”
protect your job or compensation?
societies
still represent GC’s employer?
still represent GC’s employer?
conflicts—e.g., what if member is someday subject to disciplinary matters.
work