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

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 U.S. courts respond to those two types of attorneys in their application of the attorney-client privilege.

Case study: In Bhandari v. Artesia General Hospital, et al., the State of New Mexico’s Court of Appeals applied to communications with in-house counsel a tougher standard than it applied outside, private, and independent attorneys.

In determining whether or not the attorney-client privilege applied to advice from an in-house lawyer that court asked if the attorney involved was giving pure legal advice versus business advice:

“Application of the [attorney-client] privilege can be difficult when the client is a corporation seeking legal advice regarding a business transaction and when the client’s attorney is in-house counsel who wears ‘two hats’ by performing a dual role of legal advisor and business advisor.”

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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.

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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 complex — losing this privilege can be really easy. It’s called “waiver”.

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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. 

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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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Last week — when I read that its General Counsel Jeffrey Carr was calling the shots for the law function in targeting 50% savings in Univar’s legal spend — I took notice.

I believe that the single most important success factor in the ElevateNext / Elevate Services / Univar collaboration is that the client’s law function is being led by a business guy — not someone whose perspective is confined to practicing law.

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I write Part III of this series from a strong personal viewpoint. My  comments here are based on observations over the years about how companies are well served — or badly served — by their lawyers.

Besides reading what’s in the media and press releases, I have no special knowledge about this particular venture (though I have met and spoken with some of the participants in the past — long before this announcement was made).

Following my own experiences as a practicing lawyer and later as an executive (see more here), I’ve concluded that attorneys are good at deploying technical legal expertise, but that they are unskilled in managing people, poor at cost control, and are either uninterested or undisciplined about proactive liability prevention.

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This was not always my view. As a practicing lawyer I never questioned the way that lawyers in law firms and in-house conduct companies’ legal affairs.

Then I accepted a corporate client’s invitation to run one of its divisions.

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The bold collaboration I described in Part I of this series among Univar’s General Counsel Jeffrey Carr, the law firm ElevateNext, and law company Elevate Services is just the latest chapter in legal innovation for each of them.

Their respective lengthy and successful records of accomplishment in legal innovation are important.

As with most other things in life, it’s more instructive to watch what folks have actually done than listen to what they say.

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The law firm:

Nicole Auerbach and Patrick Lamb are founders of the new law firm announced in connection with this collaboration: ElevateNext.

Auerbach and Lamb co-founded Valorem Law Group, LLP, a litigation boutique which since 2008 has pioneered something that lots of law firms tout but that few actually implement: Alternative legal fees — they don’t bill their clients by the hour.

Lawyers’ ability to tell clients in advance what they can expect from those lawyers — and then stand behind their commitments commercially — is an underdeveloped skill in the legal industry.

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My post two days ago cited an American Bar Association ABA Journal article published just this week about what lawyers want to sell to business: Billable hours. It described the latest and most advanced software for, “ensuring that you capture — and charge for — all of your billable time.”

In the legal industry, using software to “capture — and charge for — all of your billable time” amounts to a tech “innovation”. 

Apparently. 

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But there was another development this week.

Announcement of a “moonshot” designed to reduce by 50% the $10.5 million legal spend of a Fortune 500 corporation.

This ambitious effort is a collaboration among (1) a business client in the Fortune 500, (2) a law firm, and (3) something called a “law company”:

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Just yesterday the American Bar Association’s ABA Journal posted — under the category “Legal Technology” — an article that described and evaluated some of the latest and most advanced software for the following task performed by attorneys:

“These mobile time-tracking tools make it possible to track your time and enter it contemporaneously, ensuring that you capture — and charge for — all of your billable time.”

You read that correctly: Applications designed to “capture — and charge for — all of your billable time” are an important part of what’s considered “legal technology”.  

Opening scene:

It was a nightmare for my friend Mary.

Over the past decade – she and her business partner had created a thriving real estate development firm. With what had been until recently a great working relationship.

Now her business partner was in the early stages of Alzheimer’s.

Across from Mary that morning sat her business partner’s wife and adult children. They were understandably upset. They seemed scared. And they were making demands of Mary relating to the firm’s future.

Then Mary reached into her briefcase.

Flashback to 10 years earlier:

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