Tag: attorney-client privilege

Warning the Witness

At the Compliance Week 2010 conference, David Seide was nice enough to give me a copy of his new book: Warning the Witness: A Guide to Internal Investigations and the Attorney-Client Privilege. David co-wrote the book with Gary Collins, Managing Director & Director of Compliance at GE Energy Financial Services.

Since the DOJ, SEC and other agencies focusing on financial crimes, it is important to understand how an employee investigation is affected by the attorney-client privilege. This book lays out the legal background.

Internal investigations get tricky when you are using outside counsel or in-house counsel that the employee is used to getting legal advice from. They have some expectation that the lawyer is their lawyer and the information is confidential. We saw those problems with attorney-client privilege and internal investigations in some recent cases.

The tricky part is that since the lawyers work for the company, the company holds the right to waive the attorney-client privilege.  Even beyond the privilege there is a duty of confidentiality that could further limit the necessary disclosure of information during an investigation.

Collins and Seide do a great job of laying out the legal background and then turning the legal issues into recommended best practices. The book also has extensive appendixes containing the relevant model rules of professional conduct and Department of Justice memoranda.

If you want more detail on the contents, I have included the table of contents at the end of this post.

They have a great model corporate miranda that sets the stage for an employee interview. It’s key to make sure that the employee understands it, even though is not common practice to have them sign it.

The book is a great addition to your bookshelf if you are involved in employee investigations.  It’s available from the American Bar Association web store.

Table of Contents

  • Chapter I
    • Introduction
  • Chapter II
    • The Attorney-Client Privilege
    • Introduction
    • Relevant Principles Underlying the Attorney-Client Privilege
    • What Is the Privilege?
    • Elements
    • Formation of the Attorney-Client Relationship
    • Application to the Corporate Context
    • Duty of Confidentiality to Prospective Clients
    • Elements
    • Application to the Corporate Context
  • Chapter III
    • Upjohn and Its Impact on the Attorney-Client Privilege
    • The Corporate Attorney-Client Privilege Prior to Upjohn
    • The Upjohn Decision
  • Chapter IV
    • Formalizing Witness Warnings
    • Codification through the ABA Model Rules
    • ABA Rule 1.13(f)
    • ABA Rule 4.3 21
    • The Relevance of the Model Rules to Upjohn Warnings
    • Adoption of the Model Rules by Various Jurisdictions
    • Illustrative Post-Upjohn Cases
  • Chapter V
    • Current Witness Warning Practices
  • Chapter VI
    • Recommended Best Practices
    • Suggested Witness Warning
    • Recommended Procedures to Follow
    • Counsel Interviewing Constituents
    • Other Issues for Consideration Constituents Approaching Counsel
    • Supplementing Oral Warnings
    • “Do I need a lawyer?”
    • “What is my status? Is there a conflict of interest?”
    • Separate Counsel for Constituents
    • “What if I refuse to cooperate in this investigation?”
    • Third-Party Uses of Information
    • Confidentiality of Communications Between Counsel and the Constituent
    • Joint Representation of the Corporation and the Individual

When Work Papers are not Subject to the Attorney-Client Privilege

textron

The recent Textron decision is causing quite a kerfuffle. The court permitted Internal Revenue Service to gain access to documents created by the defense-contracting firm to determine whether the company’s calculation of its tax liabilities would pass muster during a possible IRS audit. Textron was trying to shield the documents under the Work-Product Doctrine.

Work-Product Doctrine

The Work-Product Doctrine shields an individual or business from having to turn over documents created in anticipation of litigation. The Doctrine traces its roots to a 1947 Supreme Court decision, Hickman v. Taylor, 329 U.S. 495. It protects material prepared in anticipation of litigation from being revealed to opposing lawyers in a court case. Seeing those materials gives an opponent the edge by sharing the other side’s legal strategy.

Tax Work Papers

Tax accrual work papers for public companies may never deserve work product immunity. Corporate taxpayers create work papers to comply with federal securities law. They exist exclusively because of financial accounting and disclosure requirements. Their creation occurs regardless of any prospect for future litigation.

Attorney-Client Privilege

One of the concerns of this case is that this may be an attack by the IRS on the Attorney-Client Privilege.  That privilege is broader and protects communications between clients and their lawyers. That privilege is not solely for communications that deals with anticipated litigation.

However, Textron, like most other public companies, showed the tax accrual papers to outside accountants. Once you send documents to someone other than the lawyers you have effectively removed attorney-client privilege over these documents.

Dangers of Email

One of the points to take away from this case is the danger of sending out blast emails to your lawyers, copying third parties who are not lawyers. If you do so, you have probably waived the attorney-client privilege for the contents of that email. It is all too easy to add others to the email distribution. Independent auditors do not enjoy confidential relationships with their clients for purposes of the attorney-client privilege.

References:

In-House Counsel as Whistleblowers under SOX

whistleblower

Section 806 of the Sarbanes-Oxley Act (18 USC §1514A) expressly authorizes any “person” alleging discrimination based on protected conduct to file a complaint with the Secretary of Labor and, thereafter, to bring suit in an appropriate district court. There is no exception for lawyers or in-house counsel.

Recently, the Ninth Circuit tackled this issue in the case of Van Asdale v. International Game Technology.

Shawn and Lena Van Asdale were in-house counsel for IGT. As part of the merger of IGT with another company, the Van Asdales raised some issues regarding the validity of a valuable patent owned by IGT. They thought the patent issue should be disclosed in connection with the merger. Their bosses thought otherwise and fired them instead.The Van Asdales sued, asserting a whistleblower claim under the SOX because they were terminated for reporting possible shareholder fraud in connection with that merger.

What About Legal Ethics Restrictions?

IGT argued that the Van Asdales were prohibited from filing suit because of  their ethical obligations as Illinois-licensed attorneys. There is some Illinois law that “in-house counsel do not have a claim under the tort of retaliatory discharge.” Balla v. Gambro, Inc., 584 N.E. 2d 104 (Ill. 1991). However, this case is based on federal law, not Illinois law. So the court rejected that argument.

What About Attorney-Client Privilege?

The Van Asdale’s case is based on a conversation the two had with their boss regarding a pending litigation matter involving the company. To bring the case, they have to disclose information subject to the attorney-client privilege.

The Court looked at Section 806 of the Sarbanes-Oxley Act (18 USC §1514A) which expressly authorizes any “person” alleging discrimination based on protected conduct to file a complaint. Since there is no exception, in-house counsel should not be prevented from bringing a claim. There are ways to protect information. The trial court should “use the many ‘equitable measures at its disposal’ to minimize the possibility of harmful disclosures, not to dismiss the suit altogether.”

What About the Substance of the SOX Claim?

Beyond the attorney-client privilege in the case, there was also a disagreement of the standards for the claim under the whistleblower protections of SOX.

The plaintiffs only needed to show that they reasonably believed that there might have been fraud and were fired for suggesting further inquiry. Section 1514A prohibits discriminating  against an employee for “provid[ing] information . . . regarding any conduct which the employee reasonably believes constitutes a violation of” a listed law. So an employee “must have (1) a subjective belief that the conduct being reported violated a listed law, and (2) this belief must be objectively reasonable.”

References:

Image is by HughElectronic: Whistleblower. http://www.flickr.com/photos/hughelectronic/ / CC BY 2.0

Workplace Computer Policy and the Attorney Client Privilege

email_icon

Back in April, I mentioned a New Jersey case that found e-mail, sent during work hours on a company computer, was not protected by the attorney-client privilege: Compliance Policies and Email (Stengart v. Loving Care [.pdf]) That case has now been overturned. It seems that a company’s policy on computer use may be more limited that I originally posted.

Factual Background:

The company provided Stengart with a laptop computer and a work email address. Prior to her resignation, plaintiff communicated with her attorneys, Budd Larner, P.C., by email about an anticipated suit against the company, and using the work-issued laptop but through her personal, web-based, password-protected Yahoo email account. After Stengart filed suit, the company extracted a forensic image of the hard drive from plaintiff’s computer. In reviewing plaintiff’s Internet browsing history, an attorney discovered numerous communications between Stengart and her attorney from the time period prior to her resignation from employment with Stengart.

I found it strange that the email from a web-based email account would be stored on the local computer. I am going to guess that it was attachments to the email that ended up stored on the computer in a temporary file and not the email itself.

Company Position:

According to the decision, the company’s policy may not have been clearly distributed and applied. There was some factual disputes about whether the company had ever adopted or distributed such a policy. There was a further dispute that even if the policy was put in place as to whether it applied to executives like Stengart.

Decision:

In the end the company’s position didn’t matter and the court assumed the policy was in place. Instead, the court took a harsh position:

A policy imposed by an employer, purporting to transform all private communications into company property — merely because the company owned the computer used to make private communications or used to access such private information during work hours — furthers no legitimate business interest. See Western Dairymen Coop., 684 P.2d 647, 649 (Utah 1984). When an employee, at work, engages in personal communications via a company computer, the company’s interest — absent circumstances the same or similar to those that occurred in State v. M.A., 402 N.J. Super. 353 (App. Div. 2008); Doe v. XYC Corp., 382 N.J. Super. 122, 126 (App. Div. 2005) — is not in the content of those communications; the company’s legitimate interest is in the fact that the employee is engaging in business other than the company’s business. Certainly, an employer may monitor whether an employee is distracted from the employer’s business and may take disciplinary action if an employee engages in personal matters during work hours; that right to discipline or terminate, however, does not extend to the confiscation of the employee’s personal communications.

Those were some broad statements, but the decision was ultimately limited to the attorney-client privilege.

There is no question — absent the impact of the company’s policy — that the attorney-client privilege applies to the emails and would protect them from the view of others. In weighing the attorney-client privilege, which attaches to the emails exchanged by plaintiff and her attorney, against the company’s claimed interest in ownership of or access to those communications based on its electronic communications policy, we conclude that the latter must give way. Even when we assume an employer may trespass to some degree into an employee’s privacy when buttressed by a legitimate business interest, we find little force in such a company policy when offered as the basis for an intrusion into communications otherwise shielded by the attorney-client privilege.

It seems that New Jersey courts are now taking the position that a company cannot read an employee’s personal e-mail, even when the employer has a policy stating that the employee has no reasonable expectation of privacy. The exception to this rule would be when the company needs to know the content of the e-mail to determine whether the employee broke the law or violated company policy.

References:

It’s Not Fraud, But it Can’t be Ignored

compliance-week-red

This session was a “dark session” so I am not sharing my notes, but will share a few themes that emerged.

Most hotline complaints are for incidents that are not true compliance or ethics issues. Most studies show that HR issues tend to be almost half of the complaints.

There were two camps of thoughts. Those that thought everything should go into one central location and those that thought there should be segregated systems. Largely, this hinged on the issue of attorney-client privilege. Some felt it better to keep this information hidden away to keep from plantiff’s lawyers.

One recommendation that I liked was to use the term “incident reporting system” instead of whistleblower hotline. To me this sounds likeit would remove some of the psychological impediments to using the system. It sounds more user friendly to me.

Attorney-Client Privilege and Internal Investigations

Two cases illustrate some of the problems with the use of outside counsel for internal investigations. The possibility that a conflict of interest could arise when an attorney or law firm simultaneously represents an organization and one or more of its officers or directors is a recurring issue.

A ruling earlier this month by U.S. District Judge Cormac Carney made a stark warning to lawyers that they need to warn a company’s employees in internal company investigations that they represent the company, not the employee. Judge Carney dismissed portions of the government’s criminal case against William J. Ruehle, the former CFO of Broadcom Corp. after finding that the law firm hired by Broadcom to review possibly illegal stock-option grants failed to explain clearly to the executive that it wasn’t representing him. Irell & Manella was involved in three separate but related representation of Broadcom and Mr. Ruehle.

Judge Carney ruled that Mr. Ruehls’s statements are privileged because he “reasonably believed that the lawyers were meeting with him as his personal lawyers, not just Broadcom’s lawyers. Mr. Ruehle has a reasonable expectation that whatever he said to the Irell lawyers would be maintained in confidence.”

Judge Carney mentioned an Upjohn warning or “corporate miranda” to inform a constituent member or an organization that the the attorney represent the organization and not the constituent member. The Judge ruled that the Upjohn warning would not be sufficient because Mr. Ruehle was already a client of Irell. The judge threw the statements of Mr. Ruehle out of evidence and also referred the law firm to the California state bar for disciplinary action.

A similar issue recently arose during the government investigation of R. Allen Stanford. Proskauer Rose lawyer Thomas Sjoblom accompanied Stanford Financial Group’ Chief Investment Officer Laura Pendergest-Holt to an SEC investigation. According to the Wall Street Journal, he said during the testimony that he represented Mr. Stanford and officers and directors of his affiliated entities. Ms. Pendergest-Holt believed he was representing her. She got indicted and is now suing Sjoblom for malpractice. She alleges that Sjoblom caused her to speak to the SEC without informing her of her Fifth Amendment rights against self-incrimination, that she was not required to testify, that she had no attorney-client privilege with him and that the interests of her employer were adverse to her interests

If you hire an outside law firm as part of an investigation, you need to make it clear that the lawyers represent the company and not the employee or executive. The lawyers need to be clear as well since they are likely to be subject to an ethics complaint or malpractice suit if they are not clear.

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Waiving the Attorney-Client Privilege By Seeking Tax Advice

john-adams-courthouse for the Mass SJC

The Massachusetts Supreme Judicial Court focused on the issue of whether the attorney-client privilege protected  communications between an in-house corporate counsel and outside tax accountants. Commissioner of Revenue v. Comcast Corporation, et al., SJC-10209 (March 3, 2009). The general rule is that the voluntary disclosure of privileged information to a third party consultant for the company’s business purposes will be deemed to waive the privilege.

We saw a similar issue addressed in the context of SEC filings in the case of  Roth v Aon. In the Roth case, they were trying to compel the release of draft SEC filings. That court rejecting the request and recognized that the process of preparing SEC filings involves legal judgments throughout, even where the disclosure in question concerns operational rather than legal matters.

In Comcast, Corporate counsel retained two Massachusetts-based Arthur Andersen partners to provide Massachusetts tax law advice in connection with a proposed stock sale. The Andersen partners spoke with in-house counsel and prepared several memoranda discussing options for the company relating to the stock sale. Litigation ensued concerning the tax implications of the stock sale. The Commissioner of Revenue sought production of the Arthur Andersen memoranda, which Comcast withheld on the basis of the attorney-client privilege and/or work product doctrine.

The SJC held that the memoranda were not protected by the attorney-client privilege.

In addressing whether the attorney-privilege exists, Comcast bears the burden of proof and needed to show:

“(1) the communications were received from a client during the course of the client’s search for legal advice from the attorney in his or her capacity as such; (2) the communications were made in confidence; and (3) the privilege as to these communications has not been waived.”

Comcast argued that the memoranda fell within the “derivative privilege” recognized in United States v. Kovel, 296 F.2d 918 (2d Cir.1961). In the Kovel decision, the Second Circuit held that the attorney-client privilege is not waived when disclosure to a third party consultant is necessary to facilitate communication between the attorney and the client and assist the attorney in rendering legal advice to the client. One example of the derivative privilege is that of an interpreter brought in to translate for a client and his attorney who speak different languages.

With respect to accountants, the Court in Kovel held that the privilege is waived unless the communication is made for the specific purpose of the client obtaining legal advice from the lawyer. The privilege is waived if  (a) what is sought is not legal advice but only accounting services, or (b) if the advice sought is the accountant’s rather than the lawyer’s . In Comcast, the SJC agreed that the Kovel doctrine applies only when the accountant’s role is to clarify or facilitate communications between attorney and client. The majority of courts take the same position.

Lesson? Tax advice from your accountant is unlikely to be protected by attorney-client privilege.

Before disclosing attorney-client communications to a third party, ask yourself whether the third party is being consulted in order to (a) simply to provide her own advice, or (b) facilitate communication between the attorney and the client. If your answer is (b), disclosure of the confidential information will likely waive the attorney-client privilege.

See also:

Federal Law to Protect Attorney Client Privilege

Senator Arlen Specter of Pennsylvania introduced Senate Bill 445: A bill to provide appropriate protection to attorney-client privileged communications and attorney work product. The bill:

“Prohibits federal prosecutors and investigators across the executive branch from requesting or conditioning charging decisions on an organization’s reasonable assertion of attorney-client privilege or decision to pay of attorneys fees for an employee. This bill emphasizes that the right to counsel is chilled unless the confidential communications between attorneys and their clients are protected by from compelled disclosure. The Department of Justice has changed its rules three times in the past few years, and attorneys and clients need clarity and an unchanging rule.”

The bill would reverse the Thompson Memo and the McNulty Memo which pressured companies to waive attorney-client privilege and disclose the results of internal investigations as part of federal prosecutions for wrong-doing.

The bill was just introduced so I have no idea whether it will be passed or whether it will change during the legislative process.

Thanks to Ellen S. Podgor of the White Collar Crime Professor Blog for pointing out the proposed legislation.

Using the Attorney-Client Privilege to Protect Drafts of SEC Filings

mintz_logoMintz Levin published a client alert about the Roth v. Aon case I mentioned a few days ago: Draft SEC Filings Can Be Protected From Discovery.

The lawyers at Mintz have these recommendations:

  • Disclosures that involve legal judgments, discussions of pending litigation, and business matters that the company must disclose for compliance purposes should be fully vetted with both in-house and outside counsel;
  • Though SEC filings eventually become part of the public domain, under the right circumstances, the attorney-client privilege may cover drafts of such filings.
  • Despite the involvement of some non-legal staff in the drafting process, the privilege may extend to teams within the company that work with counsel to make legal decisions concerning disclosures.
  • As a matter of best practices, company procedures should mandate that all drafts of SEC filings and communications concerning these filings that may implicate the attorney-client privilege be labeled “Draft” and “Attorney-Client Privileged.”
  • Internal communications seeking legal advice or opinion about disclosures should expressly state such intentions in the subject line or first sentence of an email.

Draft SEC Filings Can Be Protected From Discovery

In a January 9, 2009 order, Magistrate Judge Morton Denlow of the US District Court for the Northern District of Illinois ruled that Aon was not required to produce an email seeking comments on draft disclosure language for Aon’s Form 10-K because it was protected by the attorney-client privilege. Magistrate’s Opinion and Order in Roth v. Aon

The ruling is part of a securities class action suit against Aon. The plaintiffs were seeking an email with with a draft portion of Aon’s 10-K. In rejecting the plaintiff’s request, Judge Denlow recognized that the process of preparing SEC filings involves legal judgments throughout, even where the disclosure in question concerns operational rather than legal matters. Judge Denlow lays out the eight prong test for attorney-client privilege:

“(1) Where legal advice of any kind is sought (2) from a professional legal adviser in his capacity as such, (3) the communications relating to that purpose, (4) made in confidence (5) by the client, (6) are at his instance permanently protected (7) from disclosure by himself or by the legal adviser, (8) except the protection be waived.”

Judge Denlow goes on to point out that the inclusion of non-lawyers as recipients of the email did not waive the attorney-client privilege so long as all other recipients were employees of Aon.

Judge Denlow also rejected the argument that because the final 10-k was a public document that drafts should not subject to the privilege.

A key take-away is that communications to be protected by the attorney-client privilege must only be exchanged among in-house or outside counsel and company employees. Including outsiders, such as the company’s auditors or other consultants, as recipients could waive the privilege. You should also label these drafts as preliminary drafts and as confidential attorney/client privilege.

Although this ruling is based on SEC filings, you should be able to apply the same analysis to private placement memorandum and other documents related to private investment fund-raising.

See also: