Articles Posted in How the Law Works

In Part IV of this series I offer the next of my guiding observations as you consider consultations with legal counsel:

3. Be aware of which legal systems might be used to seek access to information that you want protected. Application of the attorney-client privilege — or its non-U.S. counterparts — can vary in a big way from jurisdiction to jurisdiction.

Consider this hypothetical:

  • A U.S.-headquartered corporation has a subsidiary in the Netherlands — and in-house legal counsel at both places.
  • During an investigation of alleged anti-competitive conduct the EU Competition Commissioner seizes e-mail messages between in-house counsel of the Dutch subsidiary and non-legal, business personnel.
  • The U.S. parent and its Dutch subsidiary assert a “legal privilege” to preclude use of those e-mails against them.

Where you have employed in-house legal counsel who communicates with client company employees on a matter of legal concern, the rules governing the attorney-client privilege (or a foreign law counterpart) might well be different in — for instance — the European Union’s legal system as compared with the U.S.

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In Part III of this series I offer the next of my guiding observations as you consider consultations with legal counsel:

2. Once you’ve got the attorney-client privilege, take care to avoid losing it through “waiver”.

While in Part II I stated that applying this privilege to a specific situation can be extremely complexlosing this privilege can be really easy. It’s called “waiver”.

How waiver works: Client discloses (all or some) contents of a client-lawyer consultation to a party whose participation is not within the scope of lawyer-client communications otherwise protected by the privilege.

Simple example: Client engages attorney for legal advice and lawyer gives legal advice. In other words, lawyer learns facts from client, client seeks legal advice, and lawyer advises client, in “confidence”.

So far so good. Other things being equal (again, this privilege is extremely complex in its terms and application) — the privilege may apply.

Then … there’s communication about all or some of contents of that client-lawyer consultation with someone who happens to be outside the scope of lawyer-client communications protected by the privilege:

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In Part I of this five-part series I wrote that business owners and executives need to take the lead in protecting their companies’ proprietary information — and their own as individuals — from the legal system.

And that opposing litigants, criminal prosecutors, and government agencies are all too ready to access information that may place you in civil, criminal, or regulatory jeopardy.

So you need to be proactive in reaching out to your lawyers on this. And don’t even think about DIY lawyering because application of this privilege to a specific situation can be extremely complex

In Parts II through V I offer guiding observations as you consider consultations with legal counsel:

  1. Make sure that you know who the client is: Is it a business entity that you own or work for? Or are you — as an individual — the client?
  2. Once you’ve got the attorney-client privilege, take care to avoid losing it through “waiver”.
  3. Be aware of which countries’ legal systems might be used to seek access to your proprietary information. Application of the attorney-client privilege — or its non-U.S. counterparts — can vary in a big way.
  4. In some circumstances here in the U.S. you may be better off consulting a lawyer in outside, independent, private practice rather than in-house counsel — because of the way that the courts respond to those two types of attorneys in their application of the attorney-client privilege.

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This five-part series is an extended plea to business owners and executives: Protect your company’s proprietary information — and your own as an individual — from the legal system.  

Two key points:

1. It’s your job to initiate the conversations with the right lawyers that will secure the protections of the attorney-client privilege. Be proactive here. 

2. The only legal “rules” governing this privilege consist of broad generalizations. Their application to a specific situation is up to an individual judge’s “discretion” based on the unique set of facts before the court.

You need skilled legal advice on how a judge might exercise that discretion in your situation. So protecting confidential information is no place for do-it-yourself lawyering.

Let the attorneys do their job. In fact: make the attorneys do their job.  

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With all the references to the attorney-client privilege in recent news, I had been meaning to post an article on this important legal protection.

Today’s Wall Street Journal contains an op-ed by former U.S. Attorney General and former federal judge Michael B. Mukasey that surpasses — in practical wisdom and conceptual clarity — any explanation that I’ve received in law school, read in court opinions, or encountered in day-to-day law practice.

The online version requires a subscription — and if one lacks that it’s worth tracking down a hard copy of the newspaper to read this piece.