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Privileges and In-House
Counsel: A User’s Guide
William M. Bosch, Arnold & Porter Kaye Scholer
Thomas C. Indelicarto, VeriSign Inc.
Robert N. Weiner, Arnold & Porter Kaye Scholer
January 11, 2017
apks.com
Arnold & Porter Kaye Scholer LLP
All Rights Reserved.
Contact Information
William M. Bosch
[email protected]
+1 202.942.5501
Thomas C. Indelicarto
[email protected]
+1 703.948.4464
Robert N. Weiner
[email protected]
+1 202. 942.5855
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Everything
I tell you is
totally
confidential,
no matter
how
heinous,
right?
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Purpose of the Privilege
“to encourage full and frank communication
between attorneys and their clients . . . . [S]ound
legal advice or advocacy serves public ends and
… such advice or advocacy depends upon the
lawyer's being fully informed by the client.”
Upjohn Co. v. United States, 449 U.S. 383, 389
(1981)
BUT
The privilege “is an obstacle to the
investigation of the truth.”
8 J. WIGMORE, EVIDENCE § 2291, at 554
(McNaughton Rev. 1982)
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Elements of the Privilege




A communication
Made between privileged persons
In confidence
For the purpose of obtaining or providing legal
assistance for the client
– Restatement (Third) of the Law Governing Lawyers § 68 (2000)
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Elements of the Privilege
 A communication
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Communication
 "[T]he protection of the privilege extends only to
communications, and not to facts. A fact is one
thing and a communication concerning that fact is
an entirely different thing. The client cannot be
compelled to answer the question, 'What did you
say or write to the attorney?' but may not refuse
to disclose any relevant fact within his knowledge
merely because he incorporated a statement of
such fact into his communication to his attorney.“
– Upjohn Co. v. U.S., 449 U.S. 383, 395-96 (1981) quoting
Philadelphia v. Westinghouse Elec. Corp. 205 F. Supp.
830, 831 (ED Pa. 1962)
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Elements of the Privilege
 A communication
 Made between privileged persons
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Privileged Persons
 “the client ... , the client’s lawyer, agents of either who
facilitate communications between them, and agents of
the lawyer who facilitate the representation.”
– Restatement (Third) § 70.
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Who is the Client?
 Control Group Test
 Subject Matter Test
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Who is the Client?
Rule 1.13(a)
VIRGINIA RULES OF PROFESSIONAL CONDUCT:
DC, VIRGINIA, MARYLAND
A lawyer employed or retained by an organization represents the
organization acting through its duly authorized constituents.
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Who is the Client?
Rule 1.13(a) – Comment [2]
DC, MD, VA RULES OF PROFESSIONAL CONDUCT
When one of the constituents of an organizational client communicates
with the organization’s lawyer in that person’s organizational capacity,
the communication is protected by Rule 1.6. Thus, by way of example, if
an organizational client requests its lawyer to investigate allegations of
wrongdoing, interviews made in the course of that investigation
between the lawyer and the client’s employees or other constituents are
covered by Rule 1.6. This does not mean, however, that constituents of
an organizational client are the clients of the lawyer. The lawyer may
not disclose to such constituents information relating to the
representation except for disclosures explicitly or impliedly authorized
by the organizational client in order to carry out the representation or
as otherwise permitted by Rule 1.6
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Former Employees
 A former agent is a privileged person under ... if, at the
time of communicating, the former agent has a
continuing legal obligation to the principal-organization
to furnish the information to the organization's lawyer.
The scope of such a continuing obligation is determined
by the law of agency and the terms of the employment
contract.
– Restatement (Third) § 73, comment e.
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Whistleblowers
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Who Decides?
 Who can invoke the privilege?
 Who can waive the privilege?
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Subs and Affiliates
Parent
Subsidiary
Subsidiary
Joint Venture
Subsidiary
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Elements of The Privilege
 A communication
 Made between privileged persons
 In confidence
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Rule 1.6(a)
VA Rules of Professional Conduct
 A lawyer shall not reveal information protected by the attorney-client
privilege under applicable law or other information gained in the
professional relationship that the client has requested be held
inviolate or the disclosure of which would be embarrassing or would
be likely to be detrimental to the client unless the client consents after
consultation, except for disclosures that are impliedly authorized in
order to carry out the representation, and except as stated in
paragraphs (b) and (c).
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Rule 1.6(a), (b)
DC Rules of Professional Conduct
(a) Except when permitted under paragraph (c), (d), or (e), a
lawyer shall not knowingly:
(1) reveal a confidence or secret of the lawyer’s client;
(2) use a confidence or secret of the lawyer’s client to the
disadvantage of the client;
(3) use a confidence or secret of the lawyer’s client for the
advantage of the lawyer or of a third person.
(b) “Confidence” refers to information protected by the attorneyclient privilege under applicable law, and “secret” refers to other
information gained in the professional relationship that the client
has requested be held inviolate, or the disclosure of which would
be embarrassing, or would be likely to be detrimental, to the client.
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Rule 1.6(a)
MD Rules of Professional Conduct
A lawyer shall not reveal information
relating to representation of a client
unless the client gives informed
consent, the disclosure is impliedly
authorized in order to carry out the
representation, or the disclosure is
permitted by paragraph (b).
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Rule 1.6(a) Comment [3a]
VA Rules of Professional Conduct
The rules governing confidentiality of
information apply to a lawyer who
represents an organization of which the
lawyer is an employee.
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Confidentiality
“Three may keep a secret, if two of
them are dead.”
– Benjamin Franklin, Poor Richard's
Almanack
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Need to Know
 Disclosure allowed only to:
a) privileged persons ... ; and
b) other agents of the organization who reasonably need to know
of the communication in order to act for the organization.
– Restatement of the Law Governing Lawyers § 73
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Precautions
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Precautions
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The Cloud
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Acting Competently to Preserve
Confidentiality – Model Rules 1.6(c)
 A lawyer shall make reasonable efforts to prevent the
inadvertent or unauthorized disclosure of, or
unauthorized access to, information relating to the
representation of a client.

[18] The unauthorized access to, or the
inadvertent or unauthorized disclosure of,
confidential information does not constitute a
violation of paragraph (c) if the lawyer has made
reasonable efforts to prevent the access or
disclosure.
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Confidentiality in the Cyber-age –
Just be Reasonable
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Cybersecurity
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Reasonableness Factors
 Sensitivity of the information
 Likelihood of disclosure if additional safeguards are not
employed
 Cost of employing additional safeguards
 Difficulty of implementing the safeguards, and the extent
to which the safeguards adversely affect the lawyer’s
ability to represent clients (e.g., by making a device or
important piece of software excessively difficult to use)
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Threats and Best Practices




E-mail
Social Media
Cloud Services
Personal Devices
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Disclosures to Co-Defendants
Community of Interest
Joint
Representation
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Privilege Legend
PRIVILEGED AND
CONFIDENTIAL
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Elements of the Privilege




A communication
Made between privileged persons
In confidence
For the purpose of obtaining or providing legal
assistance for the client
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Business v. Legal Advice
“[I]f in-house counsel is involved, the
presumption is that the attorney's input is
more likely business than legal in nature. As a
result, most of these courts apply ‘heightened’
scrutiny to communications to and from inhouse counsel in determining attorney-client
privilege.”
Kincaid v. Wells Fargo Securities, LLC, 2012 WL
712111 (N.D. Okla. 2012), at *2.
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Improving the Odds
 Use attorney’s legal title rather than managerial title
 Include privilege legend, e.g., “Privileged and
Confidential”
 Identify communication as legal advice or a request for it
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Improving the Odds
 “You have asked for legal advice on ...”
 “In order to render legal advice to the company on the
Maxwell project, I need ...”
 Because your current project implicates a number of
legal issues, I am requesting your input on ...”
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Improving the Odds
 Use attorney’s legal title rather than managerial title
 Include privilege legend, e.g., “Privileged and
Confidential”
 Identify communication as legal advice or a request for it
 Designate attorney as primary recipient, not a “cc.” Do not
“cc” other employees unless necessary
 Clearly articulate the legal purpose of communications
 Frame facts and business aspects in the context of legal
issues
 Avoid mixing legal and business questions
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Improving the Odds
... meeting with him in order to give
legal advice to the Company, that
our meeting was subject to the
Company’s attorney-client privilege,
and that the Company customarily
asserted the privilege over attorneyclient communications, but it was
the Company’s decision whether to
do so here. I told him that he should
treat our discussion as confidential.
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In-House Counsel Privilege Internationally
Country
In-House Privilege?
Australia
Yes
Same basic rules as for outside counsel
China
No
European Union
No
France
Germany
India
Japan
South Korea
Mexico
Russia
Turkey
United Kingdom
No
Follows EU law
No
Follows EU law
No
Cannot practice as Advocates
Yes
Same basic rules as for outside counsel
Yes
If admitted to Korean Bar
Yes
Same basic rules as for outside counsel
No
But cannot disclose confidences to third parties
No
In-house lawyers not independent
Yes
Same basic rules as for outside counsel
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Work Product Doctrine
 Protects from discovery documents or material things
prepared:
– In anticipation of litigation or for trial; and
– By or for a party or by or for a party’s representative
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Work Product Doctrine
Attorneys’ mental impressions receive greater protection
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Work Product Doctrine
I interviewed Mr. Trainwreck in
anticipation of litigation regarding
the [subjects discussed]. This
memo does not reflect a verbatim
transcript of our discussion, but
rather reflects my legal judgment
and mental impressions, including
my selection of the legally salient
parts of our conversation.
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Your Obligation
“Seal up your lips, and give no words but mum:
The business asketh silent secrecy.”
– Henry VI, Part II, Act I, Scene 2
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Questions & Discussion
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Speaker Biographies
William Bosch (Partner , Arnold & Porter Kaye Scholer) is an accomplished trial lawyer whose practice is
largely focused on the representation of real estate owners and developers, as well as high-end funds that invest in real
estate projects. He leads the firm’s Real Estate Litigation practice and co-leads the firm's interdisciplinary Hospitality
practice. Mr. Bosch has handled precedent-setting litigation and arbitration across the United States and
internationally involving valuation issues, the enforcement and termination of hotel management agreements
(including disputes involving most of the major hotel operators), complex lease structures, development agreements,
and issues of fraud and racketeering, breach of contract, fiduciary duty, accounting, cost allocations, unfair trade
practices, personal services, and agency. He also formulates and executes strategic plans to help clients navigate
commercial and intellectual property challenges across a range of other industry sectors, including life sciences, IT,
financial services, and consumer products.
Thomas Indelicarto (Executive Vice President, General Counsel and Secretary, VeriSign Inc.) leads the
law department in providing legal advice and services, as well as corporate secretarial support, to Verisign including
the Board of Directors. Tom has held various positions within Verisign’s law department since January 2006. Prior to
that, he worked in private practice at law firms in Washington, DC and Pennsylvania, and before that he was a US
Army officer for nine years. He holds a JD from the University of Pittsburgh and a BS from Indiana University of
Pennsylvania.
Robert Weiner (Partner, Arnold & Porter Kaye Scholer) has significant experience as a trial lawyer, appellate
advocate, and legal strategist in complex litigation. He is skilled in developing creative legal approaches to bring cases
to a quick, cheap, and successful resolution. Rob’s long experience representing business and sovereign clients in
litigation, and his three tours of duty as a government lawyer, have honed his ability to deal with the regulatory,
tactical, and constitutional issues arising when the federal government is, or may become, a party in litigation. From
2010-2012, he was Associate Deputy Attorney General at the US Department of Justice, where his principal
responsibility was to oversee the defense of the Affordable Care Act. He also handled sensitive negotiations with a
foreign government involving bank secrecy, and dealt with or headed-off difficult issues across the range of the
Department’s matters. He also has served as Senior Counsel in the White House Counsel’s Office, and as an Associate
Independent Counsel.
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