Attorney-Client Privilege & Work Product Doctrine Issues: In-house counsel, engaging third party consultants, and confidentiality of internal investigations (2024 Edition)

Brian Spahn | Godfrey & Kahn, S.C.

Brian Spahn’s practice focuses on complex commercial litigation, corporate compliance, and internal investigations. He has handled banking and financial services litigation, employment and trade secret misappropriation matters as well as managed large class action defenses. Brian is experienced in conducting internal investigations, working with corporate boards of directors and audit committees on issues ranging from employment matters to securities and corporate governance issues. He has written and spoken on numerous issues involving the attorney-client privilege and work product doctrine. When representing corporate clients, Brian often works with federal and state law enforcement when appropriate on fraud and trade secret misappropriation cases.

Adam Schwartz | Carlton Fields, LLP

Mr. Schwartz, a former Assistant U.S. Attorney with the Eastern District of New York, chairs Carlton Fields’ white collar and government investigations practice group. He concentrates his practice on white collar criminal defense, False Claims Act (Qui Tam/Whistleblower) defense, and health care fraud and abuse matters (AKS/Stark). He represents individuals and corporations in internal investigations, grand jury practice and procedure, complex civil fraud defense and advises drug manufacturers and pharmaceutical wholesalers on regulatory compliance laws including the Drug Quality and Security Act. Mr. Schwartz speaks regularly before other practitioners on topics ranging from health care fraud to attorney-client privilege considerations during internal investigations. He has been co-chair of the ABA Criminal Justice Section White Collar Crime Subcommittee for the Florida Region since 2007.

Erin J. Hoyle | Carlton Fields, LLP

Ms. Hoyle concentrates her practice on government investigations, corporate internal investigations, and white-collar criminal defense, with a focus on whistleblower complaints, allegations of healthcare fraud, securities litigation, and cybersecurity and privacy compliance. She was recognized in The Best Lawyers in America: Ones to Watch in Commercial Litigation, Criminal Defense:

White-Collar, Health Care Law, Litigation – Securities for 2021-2022. Ms. Hoyle serves as a member of the Rankings and Endorsements Committee and the Young Professionals Committee of the Women in White Collar Defense Association, an organization promoting diversity for women attorneys who specialize in the defense of government enforcement actions and internal investigations. She is a frequent speaker and author on the False Claims Act, corporate compliance, and telehealth issues.

Session I – Privilege and Work Product Considerations when Engaging Third-Party Consultants | 2:00 pm – 3:00pm

1. How to work with third party consultants to protect privilege and work product | 2:00 pm – 2:20 pm
2. Key considerations related to the attorney-client privilege, work product doctrine and third- party waiver rule | 2:20 pm – 2:40 pm
3. Distinguishing between legal and business advice when working with clients | 2:40 pm – 3:00 pm

Break | 3:00pm – 3:10pm

Session II – Attorney-Client Privilege & Work Product Doctrine for In House Counsel | 3:10pm – 4:10pm

1. Attorney-Client Privilege | 3:10pm – 3:20pm
   • Defining the Scope
   • Policy Justifications
   • Who May Raise the Privilege?
   • Elements
     • Communication
     • Privileged Persons
       • Corporation as Client
       • Functional Equivalent Test
     • Confidentiality
     • Seeking Legal Advice
       • Primary Purpose Test
       • Professional Legal Capacity Test
   • Waiver
   • Exceptions
2. Work Product Doctrine | 3:20pm – 3:30pm
   • Defining the Scope
   • Policy Justifications
   • Elements
     • In Anticipation of Litigation
     • Substantial Need
3. Recent Case Law Recap | 3:30pm – 3:45pm
   • Consultants
   • Internal Investigations
   • Presence of Third Parties
4. Cloud Collaboration Tools & Privilege Considerations | 3:45pm – 3:55pm
   • Explaining online collaboration tools
   • Modified Subject Matter Test
   • Strategies to Preserve Privilege in this context
5. Practical Suggestions to Preserve Privilege | 3:55pm – 4:10pm
   • Label Written Materials
   • Communicate Legal and Business Advice Separately
   • Corporate Meetings
   • Internal Investigations
   • Avoiding Inadvertent Disclosures when Using Document Management Systems
   • Use of an Affidavit when Asserting Privileges in Litigation