Several years ago, I found an online game that tested an in-house counsel’s understanding of the attorney-client privilege as it applied to in-house counsel. Unfortunately, I have not been able to locate an update to the game, so I thought that I would create one for you. This column presents 10 scenarios involving application of the attorney-client privilege, and my next column will present the answers. Together, these two columns should provide you and your team with a self-test on the attorney-client privilege.
I have isolated a single issue in each scenario. Do not worry about the work-product doctrine as this exercise is about the privilege. In each scenario, assume that you are an in-house counsel and that the subject document is being sought in litigation.
1. You investigate a hotline allegation that an employee was being harassed. You conclude that the allegations are baseless and draft a memorandum reflecting your legal analysis and conclusions.
2. Assume that the memorandum referred to in scenario 1 included key factual findings that you considered when developing your legal conclusions.
3. Assume that you send the memorandum in scenario 1 to the company’s 60 human resources managers.
4. You have been involved in rendering legal advice regarding a matter about which litigation ensued. Unbeknownst to anyone at your company, your bar membership has lapsed and you are not licensed in any jurisdiction. In the litigation, the opposing party seeks the production of your memoranda.
5. One of your emails to your business partner is the subject of a discovery request. The email contains the following: “The information contained in this email is privileged. It has been sent for the sole use of the intended recipient(s). If the reader of this message is not an intended recipient, you are hereby notified that any unauthorized review, use, disclosure, dissemination, distribution or copying of this communication, or any of its contents, is strictly prohibited.”
6. You are asked to present your litigation strategy and risk assessment to the company’s public relations firm that is helping with press inquiries regarding the litigation. The opposing party is now seeking your slide deck.
7. An employee, who watched your presentation at a meeting where you encouraged workers to proactively consult you with all their legal and compliance questions, visits your office without an appointment. He hands you a document titled “Price Fixing at Our Company.” It is marked: “Attorney-Client Communication.” In a subsequent investigation, the government seeks production of the document.
8. With respect to the employee memorandum described in scenario 7, the company agrees to disclose the document to the government. Now, it is being demanded in companion civil litigation.
9. Based upon the employee’s price-fixing memorandum described in scenario 7, your company’s in-house counsel in Belgium evaluates local compliance with the competition laws and shares his findings with the company’s European executive staff.
10. Because of your antitrust skills, you have been asked to also serve as the company’s vice president of distribution networks where you will have responsibility for developing a distribution program. You have developed a presentation that contains your distribution design and the legal risks associated with it. You use your business title in the presentation.
Look for the analysis in my next column. In the meantime, send me your comments.
Brian Martin is SVP and general counsel of KLA-Tencor Corp. Send your comments and best ethics practices to him at insideethics@gmail.com.
