A hallmark of our legal system is the protective umbrella formed by the attorney-client privilege and the attorney work-product doctrine. Clients and lawyers depend on these concepts on a daily basis to candidly communicate about and consider their legal rights and liabilities without fear that such candid conversations or mental impressions will be disclosed to those outside of the attorney-client relationship.
A close cousin to the attorney-client privilege and work-product doctrine is the disciplinary rule that prevents a person from being interviewed about the facts of a case where he or she (or his or her company as the case may be) is represented by counsel. This rule may be broader in some jurisdictions than in others, but generally, a party known to be represented by counsel cannot be contacted about a given controversy without counsel being present or otherwise consenting.
Thus, while the attorney-client privilege and work-product doctrine foster the free flow of information between attorney and client for the rendition of legal services, the disciplinary rule ensures that a client--or its agent--does not communicate under circumstances where they could be bamboozled into saying things that compromise legal rights. What follows are best practices to ensure that you maximize the protection offered by both of these rules.
First, stake your privilege/work-product claim early and often. In the seminal case of Upjohn Co. v. U.S., the United States Supreme Court reversed a lower court's holding that a defendant could not invoke the attorney-client privilege and work-product doctrine to shield communications where the employees participating in the communications was not members of the "control group" that had say over the defendant's legal decisions.
While the Upjohn case offers great protection, you have to make sure that you document a predicate for invoking it. If there is even the slightest hint of litigation on the horizon, you should document this in some way prior to having communications with employees. It could help you later to prove that the communications were initiated for the rendition of legal services or in anticipation of litigation.
Second, keep the privilege straight. You should also make it clear in writing to any employee that, while the communications are privileged against disclosure, you do not represent the employee; you represent the company. This so-called "Upjohn Warning" not only documents the fact that the communications are considered privileged, but also underscores who holds the privilege. This Upjohn warning should be in writing and drafted with the aid of a competent attorney.
Third, don't forget the shield provided by the disciplinary rules. Any conversation with an employee being interviewed about a legal matter should also include an advisory about talking with folks outside of the privilege group you have identified. For one thing, communications about a legal matter outside of the privilege group could be later be used to argue waiver of the privilege. For another thing, even if there has been no effective waiver, you obviously don't want a given employee speaking openly about such matters to attorneys or parties with adverse interests.
As you can see, with a little spade work on the front end, you can conduct full and open investigations while minimizing the chances that your efforts could later be turned against you. You can also lessen the risk that communications are taking place behind your back that could end up jeopardizing your valuable legal rights.
Read David Evans' previous column.