This five-part series is an extended plea to business owners and executives: Protect your company’s proprietary information — and your own as an individual — from the legal system.
Two key points:
1. It’s your job to initiate the conversations with the right lawyers that will secure the protections of the attorney-client privilege. Be proactive here.
2. The only legal “rules” governing this privilege consist of broad generalizations. Their application to a specific situation is up to an individual judge’s “discretion” based on the unique set of facts before the court.
You need skilled legal advice on how a judge might exercise that discretion in your situation. So protecting confidential information is no place for do-it-yourself lawyering.
Let the attorneys do their job. In fact: make the attorneys do their job.
In trying cases to juries and arguing with judges as an attorney, in testifying in depositions and in court as an executive, and in tangling with government agencies on behalf of my clients as their lawyer — I have found that legal institutions are not always just and fair.
But they tend to be consistently intrusive about your company’s — or your individual — proprietary information. If an opposing litigant, criminal prosecutor, or government agency thinks that some piece of information might help them to put you in civil, criminal, or regulatory jeopardy — expect them to press for it.
That piece of information can be a voice mail lasting thirty seconds, a five-word text, a rapidly-typed e-mail, or a note quickly jotted down on paper — each can deliver a legal body blow. Even if expressed informally, to a single trusted individual, on the spur of the moment, in jest, or where you’re focused on a topic completely distinct from a matter that later comes before the legal system.
Offhand comments — written, digital, or simply overheard by someone available to testify in court (accurately or not) — can have the same legal effect as if you made them formally, in open court, under oath, and in front of a jury.
Here’s the attorney-client privilege rule as defined last year by one federal judge in a high-profile case:
“The party asserting that a communication is protected by the privilege must prove:
“(1) that he made a confidential communication;
“(2) to a lawyer or his subordinate;
“(3) for the primary purpose of securing a legal opinion or legal services, or assistance in some legal proceeding.”
The key phrase is in the third clause: “For the purpose ….”
Much of the law is about WHAT you should or should not do (“Don’t rob people using a deadly weapon”; or, “provide these specified disclosures when you offer an investment for sale in this situation”).
The law of the attorney-client privilege is about WHY you did something:
“For the primary purpose of securing a legal opinion or legal services, or assistance in some legal proceeding.”
If figuring out WHY someone did something sounds subjective, messy, and uncertain — determining if the attorney-client privilege applies to a situation is often exactly that.
Hence my first point above: It’s your job to initiate conversations with the right lawyers to secure the privilege. Be proactive. Avoid DIY lawyering.
I offer some practical tips in Part II through V.
Please bear in mind my DISCLAIMER for this publication. Nothing in my blog — including this four-part series — is intended as legal advice or to be the start of an attorney-client relationship.