Quiz: Privileged or not?

What you should do in 10 scenarios involving attorney-client privilege

Privileged or Not Quiz

I trust that you have been anxiously awaiting the answers to the privileged-or-not game. I attempted to use the majority rule; the outcome in your jurisdiction may vary.

Quiz: Privileged or not?

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.

Privileged or not quiz-privileged

ANSWER: Privileged.

Quiz: Privileged or not?

2. Assume that the memorandum referred to in scenario 1 included key factual findings that you considered when developing your legal conclusions.

Privileged or not-not privileged

ANSWER: The recitation of the facts are not privileged.

Quiz: Privileged or not?

3. Assume that you send the memorandum in scenario 1 to the company’s 60 human resources managers.

Privileged or not-not privileged

ANSWER:  Privileged waived.

Quiz: Privileged or not?

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.  

Privileged or not-privileged

ANSWER: Privileged.

Quiz: Privileged or not?

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.”

Privileged or not-not privileged

ANSWER: Not privileged.

Quiz: Privileged or not?

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.

Privileged or not-not privileged

ANSWER: Not privileged.

Quiz: Privileged or not?

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.            

Privileged or not-not privileged

ANSWER: Not privileged.

Quiz: Privileged or not?

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.

Privileged or not-not privileged

ANSWER: Not privileged.

Quiz: Privileged or not?

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.

Privileged or not-not privileged

ANSWER: Not privileged.

Quiz: Privileged or not?

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.

Privileged or not-not privileged

ANSWER: Not privileged.

Brian Martin

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