Stephen Gillers, Regulation of Lawyers
"Is This Privileged?"
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"Is This Privileged?"
Question 1
Which communications
are privileged?
First we’d need to establish if attorney-client privilege is
appropriate here. I think a
fairly strong case can be made, considering Harold choose to
call his Lawyer friend in
the middle of the night, and specifically differentiates
between his duty to G-d, and
“whatever else,” which can be clearly construed as his
earthly duty to society. He
does seem to be seeking legal advice, and wants to become a
client.
Are they privileged as
attorney-client communications, or attorney work-product?
This phone call, once it has been established that Harold
was in fact seeking legal
advice, and was looking to become a client, is almost
entirely Attorney Client
Communications, and not work-product. The Work Product
doctrine looks to protect
the physical and non-physical product of preparing for
trial; and while Harold does
make reference to “making things right” with both G-d and
Man, a blurted midnight
ramble is a far cry from the work-product associated with
trail preparation.
Question 2
The email sent by the VP is
privileged attorney-client communication as the VP of Marketing is a
representative of the client, Lucky Strike, has communicated this to the lawyer
representing Lucky Strike. However, this likely falls into the crime-fraud
exception to the privilege. Under this exception, which is outlined in proposed
Rule 503 of the Federal Rules of Evidence, communications between the client
and attorney are not privileged when the client has consulted the lawyer in
order to further a crime or fraud. It does not matter whether the crime/fraud
is accomplished or if the lawyer is unaware of the client’s purpose and does
nothing to advance it. Here, it is a crime to target cigarette advertising to
children and this communication to the lawyer may be considered to be in
furtherance of that crime.
The document that was attached to
the email is likely not a privileged communication, however, as it was prepared
by an independent research company and is probably published in a report
available to the public (although it is unclear from the facts).
Question 3
In this scenario, the communication
in question, an email from a CFO to his in-house counsel (with a cc to an outside
accounting firm), simply asks the counsel whether there is anything the company
needs to do as they consider acquiring another company and whether there are
any antitrust issues that they should be aware of. Such a letter does not
constitute privileged communication within the meaning of MR 1.6.
The email itself was sent not only
to in-house counsel but also to a third party accounting firm. Including the outside accounting firm in the
email likely acts as an implicit waiver of confidentiality, as the client in this
scenario willingly and intentionally revealed the contents of the email to a
third party, and such a revelation can waive the protection of attorney-client
privilege. Additionally, it is unlikely that courts would find that the
relationship between the in-house counsel and the CFO to constitute the sort of
professional attorney-client relationship that triggers attorney-client
privilege. Courts have found that when in-house counsel is providing “business
advice” or offering counsel with regard to the potential legal ramifications of
a proposed business plan, then those communications are not protected by
privilege. See Georgia-Pacific Corp. v. GAF Roofing Manufacturing Corp., 1996 WL
29392 (S.D.N.Y. 1996); Costco Wholesale
Corp. v. Superior Court, 219 P.3d 736 (Cal. 2009).
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