1. ATTORNEY-CLIENT PRIVILEGE IN THE UNIVERSITY SETTING
Melissa Martin
Alex Loyd
Jeremy Hueth

2. Evidentiary Privilege

3. (1)(b)
(b) An attorney shall not be examined without the consent of his client as to any communication made by the client to him or his advice given thereon in the course of professional employment; nor shall an attorney's secretary, paralegal, legal assistant, stenographer, or clerk be examined without the consent of his employer concerning any fact, the knowledge of which he has acquired in such capacity.

4. Ethical Obligation CRPC 1.6
(a) A lawyer shall not reveal information relating to the 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).

5. Exceptions
to prevent reasonably certain death or substantial bodily harm
to prevent client from committing a crime or fraud that is reasonably certain to result in substantial injury to financial interests or property where lawyers services were involved (or to mitigate or rectify such fraud)
to secure legal advice about lawyer’s ethical obligations
to establish a claim or defense for lawyer
to comply with law or court order

6. Elements Privilege applies to any communication where:
legal advice is sought or given
from a lawyer
to a client
made in confidence
unless waived by the client

7. Government entities
Some states do not recognize privilege between public entities and government lawyers
(Arkansas, Maine, North Dakota, Florida)

8. Government entities Especially in the context of public records
(Oregon, Florida)

9. “In Colorado, the privilege is the same where client is a ‘body politic’ as where client is a corporation.”

10. Who is the client in the university setting?

11. Upjohn, enlightened Privilege applies to communications where:
Primary purpose is to seek or provide legal advice
Employees must be aware of that purpose
Any information provided to counsel is at the direction of corporate officers
Employees must be informed that the communications were highly confidential

12. Upjohn, enlightened
Employee must need to know the legal advice to perform responsibilities

13. Upjohn, enlightened
Can apply to agents and independent contractors.

14. Upjohn, enlightened
Merely copying university counsel on a communication does not constitute seeking legal advice

15. No Blanket Privilege
A blanket privilege does not exist--privilege must be claimed with respect to each specific communication.”

16. Email Strings = Problem

17. Waiver
In Colorado, an attorney cannot waive the client's privilege and
Inadvertent disclosure must be unexcuseable to constitute waiver

18. Waiver
Waiver of the privilege with respect to a communication constitutes waiver on all communications regarding the same “subject-matter.

19. That’s not legal advice

20. Legal Advice In re Vioxx Products
The lawyers are some of the most intelligent and informed people within corporations. Lawyers not only help corporate clients avoid legal problems before they arise, their business, technical, scientific, promotional, and public relations judgment has frequently proven invaluable.
The benefit from this expanded use of lawyers, however, comes at a cost. This cost is in the form of differentiating between the lawyers' legal and business work when the attorney-client privilege is asserted for their communications within the corporate structure.

21. Legal Advice
Vioxx cont. “Often business advice needs to be mixed with legal advice so that the legal advice is fully understood and followed by the client. When these non-legal services are mixed with legal services it does not render the legal services any less protected by the privilege. In fact, they both are protected when they are inextricably intertwined.”

22. Legal Advice University lawyers wear many different hats.
Legal advice must be primary purpose
Presence of non-legal advice does not necessarily defeat the privilege

23. In re Vioxx
Merck Pharmaceutical asserted privilege in over 30,000 documents (81 boxes containing approximately 30,000 documents, amounting to nearly 500,000 pages).
The court developed guidelines for its review.

24. Sample Guidelines
Privileged: memorandum written only to an attorney within the corporation's legal department, with an attachment for examination, review, comment, and approval, the primary purpose was to obtain legal advice.
Not Privileged: messages addressed to both lawyers and non-lawyers for review, comment, and approval - the primary purpose was not to obtain legal assistance since the same advice was being sought from all.

25. Sample Guidelines
If a document was sent to both lawyers and non-lawyers for review and lawyers provided legal advice on the document in the form of electronic edits, underlying document is not privileged. “Having chosen the electronic format, Merck cannot convert discoverable documents into non-discoverable privileged documents by the format in which they chose to render the advice.”
Court permitted Merck to redact only
the electronic edits and comments of the attorneys.

26. GenOn Mid-Atl., LLC v. Stone & Webster
Communications either “reflect business advice or state the obvious.”
“The redacted portions evaluate the status of the project, comment on costs, cash flows, contingency reserves, and schedule, and provide insights on project management.”

27. In re County of Erie, 473 F.3d 413, 422-23 (2d Cir. 2007)
Addressed privilege regarding ten s from Assistant County Attorney and various officials in the Sheriff's Office covering six broad issues:
(i) The compliance of the County's search policy with the Fourth Amendment;
(ii) Any possible liability of the County and its officials stemming from the existing policy;
(iii) Alternative search policies, including the availability of equipment to assist in conducting searches that comply with constitutional requirements;
(iv) Guidance for implementing and funding these alternative policies ;
(v) Maintenance of records concerning the original search policy; and
(vi) Evaluations of the County's progress implementing the alternative search policy

28. In re County of Erie
Court held s were sent for the predominant purpose of soliciting or rendering legal advice.
They convey to the public officials responsible for formulating, implementing and monitoring Erie County's corrections policies, a lawyer's assessment of Fourth Amendment requirements, and provide guidance in crafting and implementing alternative policies for compliance. This advice-particularly when viewed in the context in which it was solicited and rendered-does not constitute “general policy or political advice” unprotected by the privilege.

29. Further University Communication
(1) communication with an employee, agent, or independent contractor with a significant relationship not only to the University entity but also to the transaction;
(2) communication was made for the purpose of seeking or providing legal assistance;
(3) subject matter of the communication was within the scope of the duties of the employee, agent, or independent contractor; and
(4) communication was treated as confidential and only disseminated to those persons with a specific need to know its contents.

30. Need to Know

31. Bonanno v. The Quizno's Franchise Co.
Privilege applied to corporate attorney’s power point presentations.
Court found that attorney “disseminated the documents to two groups ... who need to know: management, to advise about and obtain approval for a legal course of action, and the Area Directors, to implement it.”

32. Barcomb v. Sabo
University employees waived privilege by providing “unlimited access to and dissemination of confidential information to multiple third parties which was incompatible with preserving confidentiality. “

33. In re Vioxx
Guideline:
Additional dissemination of an thread not privileged when the conveyance was by a non-lawyer recipient, unless it was clear that legal advice previously obtained was being circulated to those within the corporate structure who needed the advice in order to fulfill their corporate responsibilities

34. Vioxx Vioxx court also requested Merck provide:
(1) all company policies on the preservation of confidentiality and restrictions on the secondary circulation of confidential communications both within and without the corporate structure;
(2) an affidavit from a knowledgeable individual who could attest to the fact that those guidelines had been made known to corporate employees and followed by them;
(3) directories of corporate personnel, both alphabetical and by job titles, with descriptions of each position so that proper distribution of documents within the corporation could be; and
(4) a list of employees in its Legal Department with job descriptions for each position, the credentials of each individual and a listing of additional titles and responsibilities of each lawyer.

35. Examples
From: Dean Smith To: Lee Lawyer Cc: Subject: Student Practicum Lee - We are revising our student practicum policy. Can you give me your thoughts on the attached draft?

36. Examples
From: Dean Smith To: Lee Lawyer, 15 other Administrators Cc: Subject: Student Practicum All- We are revising our student practicum policy. Give me your thoughts on the attached draft.

37. Examples
From: Lee Lawyer To: Dean Smith Cc: Subject: Student Practicum Dean – See my redline comments attached.

38. Examples
From: Dean Smith To: Lee Lawyer, Stew Spokesperson, Harriet HR, Victor VP, Chancellor Cooper, etc. . . Cc: Subject: Media Response Regarding FDA Investigation Please see the attached and give me your thoughts.

39. City of Springfield v. Rexnord Corp
Attorney part of in-house team organized to deal with an external investigation.
Two media standby statements prepared with attorney's assistance were not privileged
The court stated “these two documents were prepared in anticipation of media inquiries and thus represent Defendants' public, albeit potential, statements.”

40. Examples
To: Lee Lawyer From: Dean Smith Cc: Subject: Student Issue Lee – Can you review the attached documents. Did we do anything wrong?

41. Examples From: Lee Lawyer To: Dean Smith Cc: Subject: Student Issue
Dean Smith – I’ve reviewed the attachments and have the following comments:
Legal advice
More legal advice
Even more legal advice

42. Examples From: Lee Lawyer To: Dean Smith
To: Polly Professor
From: Dean Smith
Cc:
Subject: FW: RE: Student Issue
_______________________________________________________________________________
Polly – Your former student is having problems again. I bet you are happy he is not in your program anymore.
From: Lee Lawyer
To: Dean Smith
Subject: FW: Re: Student Issue
Dean Smith – I’ve reviewed the attachments and have the following comments:
Legal advice
More legal advice
Even more legal advice
To: Lee Lawyer
Subject: Student Issue
Lee – Can you review the attached documents. Did we do anything wrong?

43. Practice Pointers
Privilege is strongest when legal advice is explicitly sought and explicitly given.
First line of should read: "Attorney-client privilege: communication primarily intended to obtain legal advice."
Advise client that if requesting legal advice, attorney should be the only addressee. Non-attorneys should be cc.’d.
Advise client to clearly state when he/she is relaying advice of counsel or acting on instructions of counsel.
Provide guidance to client regarding confidentiality
“Keep the information disclosed confidential and provide it only to those University employees that need the information to perform their duties. Under no circumstances should you provide this information to anyone outside the University without discussing it with me first.”

44. Practice Points Avoid mixing business advice with legal advice.
Separate out business and legal advice so it can be easily redacted
Write carefully. Never count on the privilege.

45. Practice Pointers
Install Outlook plug in to prevent forwarding and reply all.

46. Practice Pointers Privilege Logs
Description of communication should state that the primary purpose of the communication was to obtain legal advice.
Description should be specific.
" requesting legal advice regarding media request“
“ sent to counsel for the primary purpose of requesting legal advice regarding media request and compliance with FERPA.”
If communication is forwarded to other employees and does not include attorney, description should state that later recipients of the needed the communication in order to fulfill their University responsibilities.

47. Practice Points: be explicit
Privilege is strongest when legal advice is explicitly sought and explicitly given
“You inquired whether there is any legal restraint on” or “Under the facts you presented, the law would allow ...” 
In-house counsel should explicitly state that they are providing legal advice when the area of legal advice also touches on matters for which the lawyer may have some business responsibility.
In the event of such overlap, it may be best to involve a different in-house attorney to render the legal advice.

48. Practice Points: proper use of “To” and “Cc” fields
CC’ing in-house counsel on s to nonlawyers and listing in-house counsel and nonlawyers in the “to” field of weakens the privilege.
Requests for legal advice should be addressed only to counsel.
s consulting nonlawyers on the business aspects of a matter should be separate from the s to in-house counsel on the topic.
If nonlawyers need to be informed that a request for legal advice has been made or that legal advice has been received, they can be listed in the "Cc" field of an to a lawyer, but the purpose for which the nonlawyers are copied should be specifically stated in the .

49. Practice Points: sharing legal advice btw clients
Advise clients to clearly state when they are relaying advice of counsel, or acting on instructions of counsel
Courts are reluctant to place communications between nonlawyers within the scope of the privilege.
For extremely sensitive communications, clients should include explicit statements that a communication is being made at the request of counsel or that the information is being gathered for the purpose of obtaining legal advice.
Because the majority of courts analyze each in a string separately, clients should consider repeating this statement, even if it seems redundant.

50. Practice Points: write carefully
Courts are increasingly skeptical of the attorney-client privilege in the corporate setting. 
Clients should be advised to write s as if they may become public information. 

51. Practice Points: train, train, train
Train your primary clients, particularly those with the most sensitive roles (e.g. compliance depts., cabinet level employees) 

52. Cautionary Tales from Recent Cases
U.S. ex rel. Baklid-Kunz v. Halifax Hosp. Med. Ctr., (M.D. Fla. Nov. 6, 2012)
“[E]mail has added to the difficulty of determining the purpose and intent of communications that involve corporate legal counsel”
Denied privilege for hundreds of s and other documents created by or directed to in- house counsel and compliance personnel

53. CAUTION: only attorneys in “to” field
Halifax cont.
s that list an attorney and a non-attorney in the “To” field may not be privileged because they are deemed to be for both a business and a legal purpose

54. CAUTION: CC’d non-attorneys may destroy privilege
Halifax cont.
s that list an attorney in the “To” field and a non-attorney in the “Cc” field are only privileged if the non- attorney is copied in order to notify that person that legal advice was sought and what legal advice was rendered
Advise clients that copying in-house counsel on s to nonlawyers and listing in-house counsel and nonlawyers in the “to” field of weakens the privilege. Copying counsel on an to nonlawyers is not the best way to request legal advice. The same is true for s that list the lawyer and nonlawyers in the "To" field or that list the lawyer in the "To" field and nonlawyers in the "Cc" field. Requests for legal advice should be addressed only to counsel. s consulting nonlawyers on the business aspects of a matter should be separate from the s to in-house counsel on the topic. If nonlawyers need to be informed that a request for legal advice has been made or that legal advice has been received, they can be listed in the "Cc" field of an to a lawyer, but the purpose for which the nonlawyers are copied should be specifically stated in the .

57. CAUTION: compliance advice may not be legal advice
Halifax cont.
Communications regarding “compliance advice” are not privileged because “compliance advice” is not the same as “legal advice.”
Content driven analysis – not label driven analysis. In this case, Hospital had a compliance department that was a first stop for receiving and troubleshooting “health care entity” compliance issues. The department kept a log of each issue. Each incident contained a cover sheet addressed to the general counsel’s office, though there was no evidence that it was consistently sent to attorney, even thouth he compliance department reported to in-house counsel. Didn’t matter.
Court looked at content of the documents, determined they were “recordation of fact” because:
fact because:
(i) they only dealt with communications between non-lawyers;
(ii) the communications did not reflect prior legal advice being transmitted; and
(iii) the communications did “not expressly reflect ‘information being gathered by corporate employees for transmission to corporate counsel for the rendering of legal advice.’”
The Court did not address work-product protection.

59. CAUTION: shotgunning email to 11 people reduces privilege
Wildearth Guardians v. U.S. Forest Service
“ was ‘shotgunned’ to eleven recipients, only two of whom were [in-house] attorneys, and indiscriminately sought input from any of the eleven recipients.”

61. CAUTION: shotgunning email to 11 people reduces privilege
Wildearth cont.
“I am highly skeptical that they are subject to the protections of the attorney-client privilege.”

62. CAUTION: court analyzes each email in string individually
A.H. ex rel. Hadjih v. Evenflo Co.
“The attorney-client privilege only protects disclosure of communications; it does not protect disclosure of the underlying facts by those who communicated with the attorney.”

63. CAUTION: each email in string analyzed separately
Evenflo cont.
“As to [ at issue], clearly this originates as a communication between the vice president and its in-house counsel.”
“However, beyond the original message in the , the communication merely forwards a series of communications which are not subject to attorney-client privilege.”