Who Is Your Client & How To Protect Them – The Duties and Dangers of Modern Technology

1. Who Is Your Client & How To Protect Them –The Duties and Dangers ofModern Technology Robert Rolfe, Hunton & Williams Leslie A.T. Haley

2. 1. A & B seek legal assistance in forming Corporation C. You continue to advise A & B on corporate matters related to C and several years later a dispute arises between A and B.Who is your client?

3. 1. • A and B • Only C • A, B and C • Who knows???

4. 2. Who is the client ifyou are hired to representCorporation X?

5. 2. • Corp X • Corp X’s board • Corp X’s CEO & specifically named constituents 4. It depends

6. 3. Your firm takes on representation of Corp X which has several subsidiaries. In the course of representing X you routinely interact with and advise the subsidiaries as to the implications of their actions with respect to X.Who is your client?

7. 3. • X • X & it’s subsidiaries • I’m not sure I can represent X & it’s subsidiaries

8. 4. Corp HS has formed a special committee of BOD to investigate stock option backdating and has hired you for advice. You speak with the CEO and other members of the BOD and advise this committee. Litigation ensues and A/C privilege is questioned. Are your communications with the BOD who are not on the special committee protected?

9. 4. • Yes • No

10. 5. Better yet, has that privilege been waived by sharing this information of the special committee/client with other BOD members not on the committee?

11. 5. • Yes • No

12. 6. But what if it makes sense to have the firm take on representation of the Corp and several of its officers as they all seem to be on the same page. I understand we can engage in joint representation but if a conflict arises are we then excluded from representing our long-time Corp client?

13. 6. • Yes • No • It depends

14. 7. So sometimes I get confused –which is broader –the A/C privilege orclient confidentiality?

15. 7. • A/C Privilege • Rule 1.6 Confidentiality

16. 8. So which of those apply to the client who comes to me seeking legal advice on his matter?

17. 8. • A/C Privilege • Confidentiality • Both

18. 9. May an attorney communicatedirectly with a managerial employee of an adversecorporate entity represented by counsel?

19. 9. • Not without the consent of the corp’s counsel, b/c a managerial e’ee speaks on behalf of the corp • Yes, if the atty explains to the e’ee that his client’s interests are adverse to those of corp. • Yes, if e’ee lacks authority to make decisions • None of the above

20. 10. What about the case wherethe executor comes to me to represent the estate and I laterlearn the executor is misappropriating money. Who is my client and what do I do?

21. 10. • The estate; try to fix the problem • The estate through the executor; advise the executor • The estate/executor; withdraw and tell beneficiaries of defalcation • The estate; withdraw and keep quiet

22. 11. So let’s talk about the case where your firm just got disqualified for a conflict and the client is asking for their file.It’s volumes of documents.How must you produce it?

23. 11. • Paper copy • Electronic copy • Whatever way the client wants it

24. 12. In your engagement agreement with clients you would like to stipulate that all files in your office are kept and will only be produced electronically.Can you do that?

25. 12. • Yes • No

26. 13. In responding to your request for production opposing counsel sends all of the documents electronically. In reviewing them you realize that some do not seem to be “protected” and may contain metadata.Can you “mine” for potentially helpful information?

27. 13. • Yes • No • It depends

28. 14. Metadata in a documentcan reveal:

29. 14. • Amt of time spent with doc open • Original authors • Creation and access to doc/modification dates • Undo changes to reveal original doc • 2, 3 and 4 • All of the above

30. 15. SHOULD you “mine” for potentially helpful information?

31. 15. • Yes • No • It depends

32. 16. You get an email from opposing counsel and they have cc:d their client.In response you hit:

33. 16. • Reply • Reply all • It doesn’t really matter

34. 17. You receive email from opposing counsel and realize that it was inadvertently sent to you because the email outlines details of case strategy.From an ethics perspective you must:

35. 17. • Contact OC and follow her directive • Contact/notify OC • Refrain from reading; contact OC and follow their directive

36. 18. If you’re in federal court Fed. R. Civ. P26(b)(5)(B) requires a party receiving privileged or work product documents claimed to be inadvertently produced by the other side to:

37. 18. • Notify OC • Follow OC’s directive • Hold the docs until court can analyze

38. 19. So does that mean any A/C or work product protectionhas been waived?

39. 19. • Yes • No • I don’t know

40. 20. What can I do if I inadvertently produce protecteddocuments during discovery?

41. 20. • Call OC and ask for mercy • Immed take to the Ct and ask for protection • Have a discovery agreement re: inadvertent disclosures/waiver • 2 and 3

42. 21. So honestly, what can I do if Idon’t understand all of these ITelectronic data issues at such a level to advise my corporate clients?

43. 21. • Read ab electronic discovery • Study Fed Rules of Evidence • Hire and consult with experts • All of the above