Attorney–Client Privilege and Work Product: Managing Waiver Risk, Internal Investigations, Regulatory Scrutiny, and Third-Party Communications (2026 Edition) [Includes 1 Ethics hour]

Erin J. Hoyle | Carlton Fields

Erin J. Hoyle concentrates her practice on government investigations, corporate internal investigations, and white-collar criminal defense, with significant experience advising organizations on sensitive legal communications, compliance issues, and risk management. Her work routinely involves whistleblower complaints, healthcare fraud allegations, securities litigation, OFAC licensing and compliance, and cybersecurity and privacy matters—areas where attorney-client privilege and work product protections are critical. Ms. Hoyle has been recognized in The Best Lawyers in America: Ones to Watch in Commercial Litigation, Criminal Defense: White-Collar, Health Care Law, and Litigation – Securities from 2021 through 2025. She is a frequent speaker and author on the False Claims Act, corporate compliance, and telehealth issues, drawing on her investigative and litigation experience to address practical strategies for preserving privilege in complex, evolving legal environments.

Adam Schwartz | Carlton Fields

Mr. Schwartz is a former Assistant U.S. Attorney with the Eastern District of New York and currently chairs Carlton Fields’ White Collar and Government Investigations Practice Group. His practice focuses on white collar criminal defense, False Claims Act (Qui Tam/Whistleblower) matters, and complex civil fraud defense, with extensive experience advising corporations and individuals in internal investigations, grand jury proceedings, and government enforcement actions.

A significant aspect of Mr. Schwartz’s work involves navigating attorney-client privilege and work product issues arising in internal investigations, regulatory compliance reviews, and interactions with third parties, including consultants, auditors, and insurers. He regularly advises clients on privilege preservation in the context of corporate communications, in-house counsel involvement, and investigative processes, and speaks frequently to practitioners on attorney-client privilege considerations during internal investigations.

Mr. Schwartz also counsels drug manufacturers and pharmaceutical wholesalers on compliance with federal health care and regulatory laws, including the Drug Quality and Security Act. He has served as Co-Chair of the ABA Criminal Justice Section’s White Collar Crime Subcommittee for the Florida Region since 2007.

Francesca Giannoni-Crystal | Crystal & Giannoni-Crystal, LLC

Ms. Francesca Giannoni-Crystal is a dually qualified U.S. and Italian attorney whose practice uniquely bridges Civil Law and Common Law systems. With over two decades of experience advising multinational corporations, law firms, and financial institutions, she has developed deep expertise in cross-border ethics, international professional responsibility, and multijurisdictional practice issues.

As a “lawyer for lawyers,” Ms. Giannoni-Crystal frequently counsels firms on conflicts of interest, international privileges, and professional-conduct compliance across jurisdictions. Her work often addresses complex choice of-law problems in attorney discipline and malpractice exposure, particularly in matters involving international transactions and cross-border representation.

Prior to co-founding Crystal & Giannoni-Crystal, LLC with Professor Nathan M. Crystal in 2011, she served as a legal consultant for the Italian Industrial Association and practiced with Deloitte Legal, where she handled transactional and regulatory matters for global enterprises. She later managed legal affairs for a major publicly traded Italian company with subsidiaries in the U.S., U.K., China, Brazil, and other jurisdictions, overseeing international contract negotiation, data privacy, and corporate governance.

Ms. Giannoni-Crystal is also co-responsible for Technethics (www.technethics.com), an educational platform dedicated to the intersection of ethics, technology, and cross-border legal compliance. Her practice and scholarship focus on helping law firms and attorneys anticipate and manage risks arising from the application of multiple jurisdictions’ professional-conduct rules.

Session I – Protecting Attorney-Client Privilege and Work Product: Common Pitfalls, Waivers, and Practical Safeguards | 1:00pm – 2:00pm

• Attorney-Client privilege
  • Defining the scope
  • Policy justifications
  • Who may raise the privilege?
  • Elements
    1.  Communication
    2. Privileged people
       a. Corporation as client
       b. Functional equivalent test
    3. Confidentiality
    4. Seeking legal advice
       a. Primary purpose test
       b. Professional legal capacity test
    5. Waiver
    6. Exceptions

• Work product doctrine
  • Defining the scope
  • Policy justifications
  • Elements
    1. In anticipation of litigation
    2. Substantial need
• Recent case law recap
  • DOJ filter-team protocol for review of in-house attorney’s emails
  • Consultants
  • Outside/Independent auditors
  • Insurance carriers
  • Internal investigations
  • Presence of third parties
  • In-house counsel position statements
• AI, cloud collaboration tools & privilege considerations
  • Special considerations for preserving privilege while using artificial intelligence tools
  • Explaining online collaboration tools
  • Modified subject matter test
  • Strategies to preserve privilege in this context
• Practical suggestions to preserve privilege
  • Label written materials
  • Communicate legal and business advice separately
  • Corporate meetings
  • Internal investigations
  • Avoiding inadvertent disclosures when using AI & document management systems
  • Use of an affidavit when asserting privileges in litigation
• Questions

Break | 2:00pm – 2:10pm

Session II – Preserving Attorney–Client Privilege and Protecting Work Product: Challenges Facing Corporate In House Counsel and Law Firm General Counsel | 2:10pm – 3:10pm

• Understanding the similarities and differences among the ethical duty of confidentiality, the attorney-client privilege, work product protection
• Common facts patterns that pose risks of loss of ACP or WP
  • CIH involved in business transactions
  • LGC advising firm members about ethical obligations when significant risks of liability to clients or third parties exist
  • Communicating with and monitoring the activities of outside counsel to protect ACP and WP
  • Managing communications with insurers, auditors, regulators, and consultants without waiving ACP and WP
  • Significant difference among federal and state law regarding ACP and WP
  • Cross-border and multi-jurisdictional considerations affecting ACP and WP
• Policy recommendations based on the risks presented by common fact patterns