Attorney-client privilege refers to the protection of confidential communications made for the purpose of obtaining or providing legal advice. Application of and exceptions to this privilege are fact-based determinations made...more
One thing leaders of organizations routinely recognize is that “you never know what tomorrow will bring.” Another common slogan is “life happens.” If “life” happens to bring the organization a situation that could expose the...more
Providers negotiating with doctors and other medical professionals who are bound by enforceable restrictive covenants is tricky business. By virtue of his/her/their position, these physicians may owe fiduciary duties to the...more
The attorney-client privilege protects confidential communications between clients and their attorneys made for the purpose of obtaining or providing legal advice. In Upjohn Co. v. United States, a seminal 1981 decision...more
For the first time since its 1981 opinion in United States v. Upjohn, the United States Supreme Court, in a review of the Ninth Circuit’s decision in In re Grand Jury, will examine the scope of the attorney-client privilege...more
Understanding the boundaries of legal privilege in corporate internal investigations is critical. When counsel, either internal or external, misunderstands these boundaries, the result can be disastrous....more
Boards of Directors and management at companies of all sizes face a common problem: they need to make decisions that are best for the company and in order to do so they need to know the facts — the pleasant and the unpleasant...more
Part 1 of this two-part series explored the five steps to consider before and at the start of any internal investigation. The next five steps focus on conducting and concluding the investigation and will help guide a...more
Notwithstanding the venerable status of the attorney client privilege and the important purposes it serves, the federal banking regulators and the Consumer Financial Protection Bureau have taken the position that they have...more
In Upjohn states, corporations' privilege can protect (1) communications in which corporate employees at any hierarchical level give the company's lawyer facts she needs, and (2) such lawyer's advice given to any employees...more
Lawyers representing corporations should in nearly every circumstance provide an Upjohn warning to avoid accidentally creating attorney-client relationships with company employees. Upjohn v. United States, 449 US 383 (1981)....more
A recent decision out of the English High Court narrows the scope of the legal advice privilege, which will have important implications for US companies that have ties to the UK. ...more
In order to preserve the attorney-client privilege, counsel who conduct internal investigations begin employee interviews with an “Upjohn Warning”—a disclosure indicating that counsel represents the employer, not the...more
The Washington Supreme Court held in a 5-4 vote that attorney-client privilege does not apply to communications between corporate counsel and former corporate employees, even if the communications concern what the employees...more
The fallout at Penn State University in the wake of the Jerry Sandusky child-sexual-abuse scandal, including the victims’ suffering, Sandusky’s criminal conviction, the firing and subsequent death of legendary Coach Joe...more
Companies facing a crisis often turn to in house counsel to investigate the facts that precipitated the crisis. In house counsel’s first step often is to interview corporate employees with knowledge of those facts....more
Under the majority Upjohn approach, the attorney-client privilege can protect lawyers' communications with any level of corporate client employee — if the lawyers need the employees' factual information before giving their...more
On September 9, 2015, United States Deputy Attorney General Sally Yates released a memorandum titled “Individual Accountability for Corporate Wrongdoing,” the latest in a series of corporate prosecution guidelines written by...more
In United States ex rel. Barko v. Halliburton Co. et al., a qui tam suit we previously covered, the District of Columbia Circuit Court of Appeals once again ruled that defense contractor KBR Inc.’s internal investigation...more
On August 11, 2015, the U.S. Court of Appeals for the D.C. Circuit issued a writ of mandamus supporting the robust applicability of the attorney-client privilege and attorney work product doctrines in the context of False...more
During a September 10, 2015 conference at New York University, Deputy Attorney General (DAG) Sally Quillian Yates announced new Department of Justice (DOJ or the Department) policy that could significantly affect the way that...more
On September 9, 2015, the Department of Justice issued a memo (“Individual Accountability for Corporate Wrongdoing”) to federal prosecutors nationwide implementing new policies that—for the first time—prioritize the...more
The ability to preserve privilege for highly sensitive internal investigations conducted at the direction of attorneys is alive and well. In a closely watched decision on the scope of the attorney-client privilege as applied...more