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

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. 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

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 – 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