The Essentials of Preserving Attorney-Client Privilege (Includes 1hr of Ethics)

Adam Schwartz
Adam Schwartz
Carlton Fields

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.

Erin J. Hoyle
Erin J. Hoyle
Carlton Fields

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.

On-Demand: November 23, 2022
The Essentials of Preserving Attorney-Client Privilege (Includes 1hr of Ethics)

$195.00 2 hour CLE

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Program Summary

Session I - The Essentials of Preserving Attorney-Client Privilege - Adam Schwartz and Erin J. Hoyle

This program examines best practices to assist in-house counsel facing determinations as to the applicability of the attorney-client privilege and work product doctrine. The CLE will address the nearly universal misunderstanding of the privileges’ applicability and the key legal advice component, as well as the danger of widespread intracorporate communications beyond those with a need to know. The program will also identify waivers, joint defense/common interest agreements, and issues arising before, during, and after internal corporate investigations. Finally, the program offers practical application of the privilege concepts presented through a dynamic question and answer session.

Key topics to be discussed:

  • Applicability of the attorney-client privilege in the in-house setting
  • Preserving the privilege during internal corporate investigations
  • Best practices to preserve privilege while navigating cloud collaboration tools

Session II - A Discussion of Ethics and Preserving Attorney-Client Privilege - Adam Schwartz and Erin J. Hoyle

This program further examines best practices to assist in-house counsel facing determinations as to the applicability of the attorney-client privilege and work product doctrine. This ethics discussion will explore the practical aspects of attorney-client privilege and work product in the context of the model rules of professional conduct. This CLE will use vignettes to analyze the differences between privilege and confidentiality; the types of communications that receive protection; what waives privilege; and best practices for how to protect privilege. Finally, the program offers practical application of ethical and privilege concepts presented through a dynamic question and answer session.

Key topics to be discussed:

  • Applicability of the attorney-client privilege in the in-house setting
  • Preserving the privilege during internal corporate investigations
  • Best practices to preserve privilege while navigating cloud collaboration tools

Date: November 23, 2022

Closed-captioning available

Speakers

Adam Schwartz_Carlton Fields_myLawCLEAdam Schwartz | Carlton Fields

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_myLawCLEErin J. Hoyle | Carlton Fields

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.

Agenda

Session I – The Essentials of Preserving Attorney-Client Privilege | 1:00pm – 2:00pm

  • Attorney-Client Privilege | 1:00pm – 1:20pm
    • 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
  • Work Product Doctrine | 1:20pm – 1:35pm
    • Defining the Scope
    • Policy Justifications
    • Elements
      • In Anticipation of Litigation
      • Substantial Need
  • Recent Case Law Recap | 1:35pm – 1:40pm
    • Consultants
    • Internal Investigations
    • Presence of Third Parties
  • Cloud Collaboration Tools & Privilege Considerations | 1:40pm – 1:50pm
    • Explaining online collaboration tools
    • Modified Subject Matter Test
    • Strategies to Preserve Privilege in this context
  • Practical Suggestions to Preserve Privilege | 1:50pm – 2:00pm
    • 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

Break | 2:00pm – 2:10pm

Session II – A Discussion of Ethics and Preserving Attorney-Client Privilege | 2:10pm – 3:10pm

  • The Principle of Confidentiality | 2:10pm – 2:25pm
    • Origins of Attorney-Client Privilege & Confidentiality of Information
      • Attorney-Client Privilege Stems from Rules of Evidence
    • Recap Elements of Attorney-Client Privilege Confidentiality of Information Stems from Rule of Ethics
    • Duty of Confidentiality (Model Rule of Professional Conduct 1.6)
      • The Rule
      • Exceptions to the Rule
        • Informed consent
        • Implied authorization
        • Limited permissive disclosure to the extent lawyer believes reasonably necessary
    • Reasonable efforts to preserve confidential information
    • Duties to Former Clients (Model Rule of Professional Conduct 1.9)
    • Duties to Prospective Clients (Model Rule of Professional Conduct 1.18(b))
  • Ethical Guidance: Dealing with Persons other than Clients | 2:25pm – 2:30pm
    • Communication with Person Represented by Counsel (Model Rule of Professional Conduct 4.2)
      • No communication about the subject of the representation without consent or court order
    • Respect for Rights of Third Persons (Model Rule of Professional Conduct 4.4(b))
      • Prompt notification of inadvertently disclosed privileged documents
  • Ethical Guidance: Organizations as Client | 2:30pm – 2:40pm
    • Client-Lawyer Relationship (Model Rule of Professional Conduct 1.13)
    • Employee Interviews (Model Rule of Professional Conduct 1.13(f))
      • Clarifying Representation Where Employee Has Personal Liability Risk
    • Representing Organization and its Directors, Officers, Employees (Model Rule of Professional Conduct 1.13(g))
      • Informed Consent, Confirmed in Writing
  • Hypothetical Vignettes | 2:40pm – 3:00pm
    • Attorney as Incidental Recipient of Communication
    • In-House Counsel as Business Advisor
    • Internal Investigations – Production of Report to Regulatory Agency
    • Internal Investigations – Purposes of Conducting
    • Who is the Client – The Corporations or Individual Employees?
    • Who is the Client – Discussing Confidential Information
    • In-House Counsel Reporting Suspected Violations
  •  Interactive Questions & Answers | 3:00pm – 3:10pm