ATTORNEY-CLIENT PRIVILEGE
These three things are the main elements 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
The subconscious feelings, attitudes, prejudices, and stereotypes an individual has developed due to prior influences and imprints throughout their lives.
Implicit bias
A situation in which your client has asked you for legal advice in a matter in which another client has a different interest.
The most common scenario for a current-client conflict of interest.
These types of internal investigations may not be protected by the organization's privilege, even if conducted by an attorney.
Investigations that are required by law (or part of the organization's ordinary business functions).
A binding expression of the terms and conditions of a lawyer's representation of a client.
An engagement letter.
An intentional or reckless act resulting in the loss of relevant information coupled with a duty to preserve the information.
Spoilation.
In addition to the normal elements of the attorney–client privilege, these two additional items must also be satisfied when assessing an organization's privilege.
(1) the communication is concerns a matter of legal interest to the organization and (2) is with an agent of the organization with a business need to be involved in the communication
Under this federal law, employers cannot discriminate in employment on the basis of several protected classes.
Title VII of the Civil Rights Act of 1964
A situation in which 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
The most common scenario for a former-client conflict of interest.
Protected communications and items that exist at the direction of a lawyer and because the client reasonably anticipates litigation.
The work-product doctrine.
These are the three essential elements of an engagement agreement.
(1) clarity on the identity of the client, (2) the scope of the engagement, and (3) the lawyer's compensation for his or her work
A deceptive email with a dangerous link and from a threat to your organization.
A phishing attempt.
The principle that a communication in furtherance of a crime is not privileged.
The crime–fraud exception to the attorney–client privilege
An excellent way to reduce the risk of differential-treatment discrimination claims.
Clear policies and consistent application of them.
Under this principle, for most conflicts of interest, if you have one, everyone in your "firm" has one.
The principle of conflict-of-interest imputation.
Informing a constituent of an organizational client that you represent the organization, and not the constituent.
Upjohn warning
These documents serve the function of engagement agreements allowing in-house lawyers to advice affiliates.
Intercompany service agreements and similar documents.
This non-U.S. privacy regulation ushered in a new era of data-privacy responsibilities.
The European Union's General Data Protection Regulation
If you fail to do this, your ability to disclose information learned from a constituent of the organization may be subject to the consent of the constituent.
An Upjohn warning, i.e., warning a constituent of your organizational client that you are not his or her lawyer?
Putting aside 16 C.F.R. part 910, the degree to which you can enforce these depends on state law.
Noncompetition agreements
You need this to represent both your organizational client and one of its constituents in the same matter.
Informed consent from the organizational client by someone with authority other than the prospective constituent client.
This can happen when you disclose privileged information to too many constituents.
Loss of privilege
This is what engagement agreements should include when an engagement creates a conflict of interest for the lawyer.
Statements of clients' informed consent to the representation creating the conflict of interest.
Under an agreement specific to a data event, using a vendor that is not the organization's regular vendor may have this effect on privilege.
Maximizing privilege over the work of a vendor in connection with a data event.
The legal support for extending the client's privilege to communications with nonlegal service providers necessary to the legal advice requested by the client.
United States v. Kovel, 296 F.2d 918 (2d Cir. 1961)
This rule says that lawyers cannot participate in most agreements that limit the ability to practice in future employment.
Model Rule of Professional Conduct 5.6(a)
This unusual result occurred for in-house counsel in Take2 Techs. Ltd. v. Pac. Bioscis. Inc., Case 5:23-cv-04166-EJD (N.D. Cal.)
Disqualification from working with outside counsel on a litigation matter.
Although it may increase the costs of the investigation, it negates the risk that constituents think the organization's lawyer is their lawyer.
The provision of independent counsel for constituents of the organization.
If you don't get this right in an engagement for you and an affiliate, and you lose control of the affiliate, you might lose your lawyer.
The language in a joint engagement consenting to the lawyer continuing for you and withdrawing from an affiliate if a conflict develops between them.
This alarming result occurred in SEC v. Covington & Burling LLP, Case No. 23-mc-00002 (APM) (D.D.C. July 24, 2023).
The holding that the government could compel lawyers to disclose the names of clients who suffered data events.