ATTORNEY-CLIENT PRIVILEGE
What are the elements necessary for the creation of the attorney–client privilege?
(1) A communication between privileged persons
(2) made and kept in confidence and
(3) for the purpose of obtaining or providing legal assistance
Who is your employer?
As an in-house lawyer, your client
What is most common scenario for a current-client conflict of interest?
Your client has asked you for legal advice in a matter in which another client has a different interest
What is a risk of having in-house counsel conduct an internal investigation?
Depending on whether the investigation is required or not, in-house counsel's involvement may not make the investigation privileged
What is your "engagement letter" with your client?
Your employment agreement
What is spoliation?
An intentional or reckless act resulting in the loss of relevant information
Within an organization, what makes a communication with a lawyer for the organization privileged?
The communication concerns a matter of legal interest to the organization and is with an agent of the organization with a business need to be involved in the communication.
As an in-house lawyer, in what jurisdictions do you need to be licensed?
Where you do the majority of your work for your client
What is the most common scenario for a former-client conflict of interest?
Your client has asked you for legal advice in a matter that is the same as or substantially related to a matter you handled for a former client and in which that former client has a different interest
What is the provision of independent counsel for constituents of the organization?
Although it may increase the costs of the investigation, it negates the risk that constituents think the organization's lawyer is their lawyer
What are the essential elements of an "engagment letter"?
Clarity on the identity of the client, the scope of the engagement, and the lawyer's compensation for his or her work
What is a phishing attempt?
A deceptive email with a dangerous link and from a threat to your organization
What is the crime–fraud exception to the attorney–client privilege?
The principle that a communication in furtherance of a crime is not privileged.
What is your client's best defense against a differential-treatment discrimination claim?
You were not involved in the underlying conduct, but you become a witness in connection with your client's handling of the conduct
What is the principle of conflict-of-interest imputation?
For most conflicts of interest, if you have one, everyone in your "firm" has one.
What is an Upjohn warning?
Informing a constitutent of an organizational client that you represent the organization and not the constitutent
What can constitute "engagement letters" for in-house lawyers doing work for affiliates of the organizational client?
Intercompany service agreements and similar documents
What is the European Union's General Data Protection Regulation?
The privacy regulation that ushered in a new ear of data-privacy responsibilites
What is a risk to not warning a constituent of your organizational client that you are not his or her lawyer?
Your ability to disclose information learned from a constituent of the organization is subject to the consent of the constituent
What is a risk in using in-house lawyers to effectuate employment decisions?
You were not involved in the underlying conduct, but you become a witness in connection with your client's handling of the conduct
What is necessary for you to represent both your organizational client and one of its constituents in the same matter?
Informed consent from the organizational client manifested by someone other than the propsective constituent client
What is a risk of disclosing information about an investigation to too many constituents?
Loss of any privilege associated with the information disclosed
What should "engagement letters" include when the lawyer has or expects conflicts of interest?
Statements of clients' informed consent to the representation creating the conflict of interest
What is an effective way to maximize privilege over the work of a vendor in connection with a data event?
Using a vendor that is not the organization's regular vendor and under an agreement specific to a data event
What is United States v. Kovel, 296 F.2d 918 (2d Cir. 1961)?
The legal support for extending the client's privilege to communications with nonlegal service providers necessary to the legal advice requested by the client
What is Model Rule of Professional Conduct 5.6(a)?
The source of the principle that lawyers cannot participate in agreements that limit the ability to practice in future employment
What is a recent example in which in-house lawyers were disqualified from working on a litigation matter?
Take2 Techs. Ltd. v. Pac. Bioscis. Inc., Case 5:23-cv-04166-EJD (N.D. Cal.)
Communications and items that exist at the direction of a lawyer and because the client reasonably anticipates litigation
What is the work-product doctrine?
What is an "engagement letter"?
A binding expression of the terms and conditions of a lawyer's representation of a client
What is the opinion holding that the government could compel lawyers to disclose the names of clients who suffered data events?
SEC v. Covington & Burling LLP, Case No. 23-mc-00002 (APM) (D.D.C. July 24, 2023)