The new year, of course, is a time to reflect, to learn from events of the past year, and to contemplate how to improve personally and professionally in the upcoming year. Looking back, I've had a good year--I continue to love practicing law, I work with terrific clients and colleagues, and I learn new and interesting things almost every day. And, in 2010, part of that learning process has involved writing these columns and thinking constantly about what we can glean from the key cases, legislation and other events that shape what we as lawyers--and, in particular, you as in-house counsel--do every day. So for my end-of-year column, and using my earlier columns as a guide, here are a few take-aways from 2010 and tips for 2011.
Jealously protect privilege: Standards with respect to privilege and waiver are constantly evolving. In my first column, "Waiving (Goodbye to) Privilege Under Rule 502," I wrote about how a review of electronic data that once seemed defensible may now be too lax to prevent subject matter waiver. For 2011, in weighing the costs and benefits of a full-scale privilege review, keep in mind the growing number of cases refusing to accept arguments of "inadvertence"--and thus finding waiver--absent such a review. And for those of you working abroad, or communicating with in-house counsel outside the U.S., as I explained in "The Privileged Few," do not forget the European Court's decision in Akzo Nobel Chemicals finding that in-house counsel are not sufficiently independent for the attorney-client privilege to attach to their communications.
Adjust to new technology: The Supreme Court famously (or infamously, according to Justice Scalia) noted this year that technology is developing too rapidly for litigants to expect that they can rely on precedent for setting policies. Although that certainly makes things challenging for in-house counsel, some things have become obvious in 2010. First, as I explained in "To Tweet or Not to Tweet (at Work)," it is vitally important to understand how employees use employer-issued devices; to develop policies that explain the acceptable uses of such devices (for example, the extent to which social networking is permitted); and to enforce this policy in a consistent and evenhanded way. And second, as easy as it is for me to recommend formulating these policies, drafting them is much more challenging. Indeed, in "Picketing Online - Has Protesting Become as Simple as Posting?" I focused on a recent action by the NLRB against a company that terminated an employee over her personal use of Facebook to complain about company policies, and warned against drafting a policy that may be perceived as infringing on the rights of employees.
Be frank on Dodd-Frank: The Dodd-Frank Act is one of the largest overhauls of the financial system in our nation's history. In "Give Us Your Tired, Your Poor, Your Aggrieved Foreign Securities Plaintiffs," I wrote about the Supreme Court's decision in Morrison v. National Australia Bank, which put to rest any question about whether the antifraud provisions of the securities laws could be invoked by so-called f-cubed plaintiffs. The answer, said the Supreme Court, was a clear "no." That lasted about one month, until the Dodd-Frank Act addressed, in the context of SEC enforcement actions, the extraterritorial application of the antifraud provisions of the securities laws. Congress left it to the SEC to seek comment on whether to extend the law to private plaintiffs. As I explained a few months ago and reinforce again today (especially given that the comment period is now open), in 2011, exercise your right to weigh in on this important issue.
Set a pro bono goal: In "There's No 'I' in Pro Bono," I wrote about the option of teaming up with outside counsel on a pro bono project. As we all know, this is important and incredibly rewarding work. In 2011, consider asking your outside law firms about the pro bono programs they have in place and how you, as their clients, can take advantage of the pro bono infrastructure that they spent so much time and money developing. This is a win-win for everyone involved, and most importantly for the individuals who cannot afford representation and who are in need of our help.
Do good: I often forget how powerful a tool a law degree is. I recently saw the movie "Conviction," the true story of Betty Anne Waters, a woman whose brother, she believed, was wrongfully convicted of murder. He was sentenced to life in prison. As a working (and later single) mom, Waters received her high-school diploma, attended college and then law school, and took and passed the bar exam only so that she could help win her brother's freedom, which she eventually did with the help of the Innocence Project, an organization dedicated to exonerating wrongfully convicted people through DNA evidence. Waters never represented another client in her life. It makes for a remarkable story, and one take-away for me is that Waters effectively started her life over to do something that all of us can do starting tomorrow. I offer this not to suggest how we, as lawyers, should spend our time, but just to observe what is possible but too-often forgotten. We have the ability to do good, and however each of us chooses to define what that means, let's resolve to do good in 2011.
I wish all of you a happy and healthy new year. Thanks for reading my columns, and I hope you'll continue reading in 2011.