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

Adam Schwartz
Erin J. Hoyle
 Brian Spahn
Phillip Berkowitz
Adam Schwartz | Carlton Fields
Erin J. Hoyle | Carlton Fields
Brian Spahn | Godfrey & Kahn S.C.
Phillip Berkowitz | Littler Mendelson P.C.

On-Demand: October 20, 2021

$245.00 3 hour CLE

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Program Summary

Session I - Attorney-Client Privilege & Work Product Doctrine for In House Counsel – Adam Schwartz & Erin 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 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. The program also provides best practice to preserve privilege while navigating cloud collaboration tools and other means of electronic corporate communications and storage systems utilized in remove work environments.

Key Topics

  • 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 - Privilege and Work Product Considerations when Engaging Third-Party Consultants – Brian Spahn
Organizations routinely hire consultants to assist with a variety of regulatory and compliance issues. Oftentimes the issues a consultant is asked to address include highly sensitive matters that the organization would prefer not to be made public and/or discoverable in subsequent litigation. This presentation will discuss steps that should be considered when working to protect from discovery the communications and work product generated through consulting arrangements. While there is no one-size-fits all solution, several themes have emerged over time that form the basis of best practices that will be discussed.

Key Topics

  • How to work with third party consultants to protect privilege and work product.
  • Key considerations related to the attorney-client privilege, work product doctrine and third-party waiver rule.
  • Distinguishing between legal and business advice when working with clients.

Session III – Internal Audits: Confidentiality of internal investigations – Phillip Berkowitz
How to preserve the confidentiality of internal investigations when these investigations are subject to internal audit by compliance and internal audit departments.

Key Topics

  • The three lines of defense and how these have escalated internal investigations
  • The appropriate scope of audits of internal investigations
  • How an organization can carry out appropriate investigations while preserving the role of compliance and audit in reviewing these policies and procedures

This course is co-sponsored with myLawCLE.

Date: August 4, 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.

Brian Spahn_Godfrey & Kahn S.C._myLawCLEBrian 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.

Phillip Berkowitz_Littler Mendelson P.C._myLawCLEPhillip Berkowitz | Littler Mendelson P.C.

Philip Berkowitz, a shareholder in the New York City office of Littler Mendelson P.C., is US Co-Chair of the firm’s international labor and employment law practice, and Co-Chair of the financial services industry team. Mr. Berkowitz represents multinational and domestic companies in a wide range of industries on employment-related matters, including lawsuits and arbitrations, in the United States and internationally.
His clients include companies in financial services, pharmaceuticals and chemicals, manufacturing, publishing, and many other businesses. He has represented prominent international law firms in employment law matters, and senior executives in the financial services and other industries in compensation related matters.

Mr. Berkowitz is former Co-Chair of the International Bar Association Diversity and Equality Committee, and former Chair of the New York State Bar Association International Section. He attended Cornell Law School, the Northwestern School of Law, and the State University of New York at New Paltz.

Agenda

Session I – Attorney-Client Privilege & Work Product Doctrine for In House Counsel | 2:00pm – 3:00pm
1. Attorney-Client Privilege | 2:00pm – 2:20pm

a. Defining the Scope
b. Policy Justifications
c. Who May Raise the Privilege?
d. Elements

i. Communication
ii. Privileged Persons

(a) Corporation as Client
(b) Functional Equivalent Test

iii. Confidentiality
iv. Seeking Legal Advice

(a) Primary Purpose Test
(b) Professional Legal Capacity Test

e. Waiver
f. Exceptions

2. Work Product Doctrine | 2:20pm – 2:35pm

a. Defining the Scope
b. Policy Justifications
c. Elements

i. In Anticipation of Litigation
ii. Substantial Need

3. Recent Case Law Recap | 2:35pm – 2:40pm

a. Consultants
b. Internal Investigations
c. Presence of Third Parties

4. Cloud Collaboration Tools & Privilege Considerations | 2:40pm – 2:50pm

a. Explaining online collaboration tools
b. Modified Subject Matter Test
c. Strategies to Preserve Privilege in this context

5. Practical Suggestions to Preserve Privilege | 2:50pm – 3:00pm

a. Label Written Materials
b. Communicate Legal and Business Advice Separately
c. Corporate Meetings
d. Internal Investigations
e. Avoiding Inadvertent Disclosures when Using Document Management Systems
f. Use of an Affidavit when Asserting Privileges in Litigation

Break | 3:00pm – 3:10pm

Session II – Privilege and Work Product Considerations when Engaging Third-Party Consultants | 3:10pm – 4:10pm
1. Overview of privilege, work product and waiver | 3:10pm – 3:30pm

2. Exceptions to the third-party waiver rule for purposes of engaging consultants | 3:30pm – 3:50pm

3. Best practices for protecting privilege and work product when working with third-party consultants | 3:50pm – 4:10pm

Break | 4:10pm – 4:20pm

Session III – Confidentiality of Internal Investigations | 4:20pm – 5:20pm
1. Description of the issues | 4:20pm – 4:40pm

2. Legitimate concerns of Legal, HR, Compliance and Audit | 4:40pm – 5:00pm

3. A practical Solution | 5:00pm – 5:20pm