Attorney-Client Privilege Issues in the Corporate Setting

1. Attorney-Client Privilege Issues in the Corporate Setting

2. Privilege Issues

3. Privilege Issues Who is “holder “ of the corporation privilege

4. Privilege Issues Who is “holder “ of the corporation privilege Who gets to claim the privilege or waive it

5. Privilege Issues Who is “holder “ of the corporation privilege Who gets to claim the privilege or waive it Whose intent will be taken to be corporation’s

6. Privilege Issues Who is “holder “ of the corporation privilege Who gets to claim the privilege or waive it Whose intent will be taken to be corporation’s Whose law governs for determining scope and application of the privilege

7. Privilege Issues Who is “holder “ of the corporation privilege Who gets to claim the privilege or waive it Whose intent will be taken to be corporation’s Whose law governs for determining scope and application of the privilege What communications fall within privilege

8. Purpose of Privilege

9. Purpose of Privilege • Encourage full and frank disclosure

10. Purpose of Privilege • Encourage full and frank disclosure • Promote public interest in securing observance of law and administration of justice

11. Evidence Rule 503 Protects

12. Evidence Rule 503 Protects • Confidential communications

13. Evidence Rule 503 Protects • Confidential communications • Made for purpose of facilitating rendition of legal services

14. Evidence Rule 503 Protects • Confidential communications • Made for purpose of facilitating rendition of legal services • To the client

15. Evidence Rule 503 Protects Communications Between:

16. Evidence Rule 503 Protects Communications Between: • Client (or its representative) and lawyer (or his/her representative)

17. Evidence Rule 503 Protects Communications Between: • Client (or its representative) and lawyer (or his/her representative) • Client’s lawyer and lawyer’s representative

18. Evidence Rule 503 Protects Communications Between: • Client (or its representative) and lawyer (or his/her representative) • Client’s lawyer and lawyer’s representative • Client or lawyer and lawyer representing a party with a common interest

19. Evidence Rule 503 Protects Communications Between: • Client (or its representative) and lawyer (or his/her representative) • Client’s lawyer and lawyer’s representative • Client or lawyer and lawyer representing a party with a common interest • Client representatives

20. Evidence Rule 503 Protects Communications Between: • Client (or its representative) and lawyer (or his/her representative) • Client’s lawyer and lawyer’s representative • Client or lawyer and lawyer representing a party with a common interest • Client representatives • Lawyers representing a client

21. What determines if communication is privileged

22. What determines if communication is privileged • Content

23. What determines if communication is privileged • Content • Purpose

24. What determines if communication is privileged • Content • Purpose • Who it is made by

25. What determines if communication is privileged • Content • Purpose • Who it is made by • Who it is made to

26. What does NOT determine if communication is privileged

27. What does NOT determine if communication is privileged • Participation of lawyer does not make it privileged

28. What does NOT determine if communication is privileged • Participation of lawyer does not make it privileged • Saying it’s privileged does not make it so

29. What does NOT determine if communication is privileged • Participation of lawyer does not make it privileged • Saying it’s privileged does not make it so • Distribution can affect determination of privilege

30. “Good cause” to invade privilege in derivative suits

31. “Good cause” to invade privilege in derivative suits • Plaintiff represents a substantial portion of the shareholders

32. “Good cause” to invade privilege in derivative suits • Plaintiff represents a substantial portion of the shareholders • Plaintiff appears to have a meritorious claim

33. “Good cause” to invade privilege in derivative suits • Plaintiff represents a substantial portion of the shareholders • Plaintiff appears to have a meritorious claim • Plaintiff shows a need for the information

34. Rule of Professional Conduct 1.13

35. Rule of Professional Conduct 1.13 • In dealing with directors, officers, employees, members, shareholders

36. Rule of Professional Conduct 1.13 • In dealing with directors, officers, employees, members, shareholders • Lawyer shall explain identity of the client

37. Rule of Professional Conduct 1.13 • In dealing with directors, officers, employees, members, shareholders • Lawyer shall explain identity of the client • Lawyer’s first duty is to the client

38. Rule of Professional Conduct 1.13 • In dealing with directors, officers, employees, members, shareholders • Lawyer shall explain identity of the client • Lawyer’s first duty is to the client • When organization’s interests are adverse to the individuals lawyer is dealing with

39. Corporate Miranda Warning

40. Corporate Miranda Warning Mr. Jones began by providing our standard warning, which explained that:

41. Corporate Miranda Warning Mr. Jones began by providing our standard warning, which explained that: • We are attorneys for the Company and not any individual, including Mr. White

42. Corporate Miranda Warning Mr. Jones began by providing our standard warning, which explained that: • We are attorneys for the Company and not any individual, including Mr. White • The conversation was subject to the attorney-client privilege

43. Corporate Miranda Warning Mr. Jones began by providing our standard warning, which explained that: • We are attorneys for the Company and not any individual, including Mr. White • The conversation was subject to the attorney-client privilege • The privilege could be waived by the Company if it so chooses.