The interesting part of the two matters I will be addressing here is that an individual almost has to know prior to a suit being filed that litigation may occur. Discussions and written matter, all correspondence, emails and documents exchanged between parties should be prepared with a thought to potential litigation.
Attorney Client Privilege and the Work Product Doctrine are two separate and distinct issues and should be treated within the legal world as separate disclosures.
Attorney Client Privilege, which originated in Roman and canon law, has evolved into a recognized judicial doctrine and is necessary in order to provide clients with access to effective, well informed counsel. In Upjohn Co. v US the Supreme Court the Court stated that “Its purpose is to encourage full and frank communication between attorneys and their clients and thereby promote broader public interests in the observance of law and administration of justice.”(a)
However, since the passage of the Patriot Act (b) (terrorism, September 11, 2001), and the various corporate scandals leading to the Sarbanes Oxley Act(c) and the Securities and Exchange Commission (2001 Seaboard Report) and the fall out from such companies as Enron, WorldCom the federal, state and regulatory offices of the government are attempting to pierce the Attorney Client Privilege. The government has attempted through two (2) separate practices to tear into what was once considered a “privilege” that was recognized and adhered to throughout the US. The two (2) issues we know face are (i) attorneys are being required to “waive” attorney client privilege in order to appear cooperative. Failure to waive has resulted in the court stipulating that the attorney was being uncooperative; thus penalties have become much harsher and (ii) employers are being advised to terminate employees or not provide them with legal counsel to support their actions. This practice has led to question the innocent until proven guilty doctrine and has caused hardships for those accused of but not proven guilty of a crime. Both the Federal Legislature and the American Bar Association are attempting to temper the government and its attempt to curtail “Attorney Client Privilege.”
A final adjudication as to the what will and will not be considered “privilege” as it relates to the information covered under the basic Attorney-Client Privilege needs to be addressed quickly; if not, the very core of the attorney-client relationship will deteriorate and the confidence of the two (2) parties will be shaken.
Upjohn Co. v US, 449 US 383; 101S Ct677 (1981)
USA Patriot Act of 2001 and the USA Patriot Act Improvement and Reauthorization Act of 2005 ( c).
Sarbanes Oxley Act of 2002 also known as the Public Company Accounting Reform and Investor Protection Act of 2002
The following attempts to provide some information and guidelines as to how and what everyone can do to ensure the “privilege” status of that information transmitted between the counsel and the executive/senior management, and employees of a corporation.
Remember the best argument in favor of “privilege” protection is that it does not prevent anyone from discovering all the facts necessary to make a case; it simply requires the government or civil litigants to do their own work to prove their case, so as to not deprive the client of its ability to communicate openly with counsel.
Counsel and or Paralegals during meetings, investigations, interviews with employees, senior staff meetings, staff meetings, etc. take notes; these plus draft documents, correspondence and legal theories are all to be considered “privilege.” The confidentiality of “privilege” works both ways, individuals providing information to counsel is also considered “privileged.”
The corporate umbrella; just like a regular umbrella, is used for protection. Under the corporate umbrella the corporation obtains protection from the illegal...
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