corporate privlage Flashcards
what question does rule 1.13 corporate privilege answer
Corporations are not individuals, so who is the client?
Who is a third party that would ruin the privilege?
what does comment two to 1.13 say
When one of the constituents of an organizational client communicates with the organization’s lawyer in that person’s organizational capacity, the communication is protected by Rule 1.13.
who is the client if the lawyer is hired by a corporation via 1.13(a)
The corporation– not the people who run it
what are the relevant parts of the 1.13 and what do they tell us
1.13(a) Who is the client?
1.13(b) what to do if lawyer knows if somome assoicated with the org is doing something in vioation of the law
1.13(c) what to do if reporitng up the ladder results in the highest person ignroing/saying same thing
1.13(b) lane stelle calls this going up the ladder
what does this rule mandaate When a lawyer for an org knows that someone associated in the org is doing something in violation of the law
the lawyer shall proceed as is reasonably necessary in the best interest of the org ie they must refer the matter to higher authority within the org (going up the ladder)
1.13(c) lane steele calls this reporting out
what does this rule mandate if 1.13(b) going up the ladder fails
if the lawyer believes that the violation is reasonably certain to result in sub harm to the org, she must report out
what does comment 6 say about whether the lawyer’s services be used in furtherance of the violation,
It is not necessary that the lawyer’s services be used in furtherance of the violation, but it is required that the matter be related to the lawyer’s representation of the organization.
what does comment six say happens if he lawyer’s services are being used by an org to further a crime or fraud by the org
1.6(b)(3) and (b)(2) may permit the lawyer to disclose confidential information.
do a flowchart for 1.13 reporting up and out
check
what does 1.13(d) tell us
Reporting out does not apply when the attorney is retained by the corp to investigate an alleged violation
Also does not apply when the lawyer is hired to defend the corp against an alleged violation of the law.
UPJOHN V. UNITED STATES
In response to an independent audit reflecting illegal payments to foreign government officials by employees of Upjohn (defendant), Upjohn’s general counsel, Gerard Thomas, sent a questionnaire to Upjohn employees requesting any information they had concerning the payments.
The IRS issued a summons requesting Upjohn’s production of the questionnaires, but Upjohn refused to produce the questionnaires on the basis of attorney-client privilege
Issue: are the communications between outside counsel/general counsel and the employees privileged?
In the corporate context, the attorney-client privilege applies to not only those high-level employees who have the authority to act on the legal advice of the attorney, but also to any of those employees who provide information to the attorney so that he may give such legal advice.
The supreme court rejects the control group test
1. Frustrates purpose of the privilege
2. Attorney needs info from non control group employees
Non control group employees need to be able to implement attorney advice
what is the upjohn rule as established in rst 73
ie when a client is a copration, the acp exteneds to a communication that:
1) otherwise qualifies under rst section 68-72;
2) is between an agent of the org and a privileged person as defined in section 70;
3) concerns a legal matter of interest to the org; AND
4) is disclosed only to:
(a privileged persons as defined in section 70 and
b) other agents of the org who reasonably need to know of the communication in order to act for the org
what is an upjohn warning
It informs the employees of only repping the company and not the employees personal representation
The purpose is
To avoid a implied a/c relationship
Comply with 1.13(f)
And ensure client owns privilege
in re grand jury – upjohn warning
gave upjohn warning – We rep the company, the conversations are priv, but priv belongs to the company and company decides whether to waive it.
* “We could rep you as long as no conflict existed”
* “ You can retain personal counsel
Gave an upjohn warning but employees understood it to create a relationship
was this a suffiient upjohn warning
techniclally yes but the court did acknowledge that the upjohn warning given was watered down and could have been better
The warning did not tell the employee that they repped them; employee didn’t ask attorneys to; told employee to get their own personal counsel
The employees did not seek or receive legal advice
Told the employee that the info could be disclosed at the COMPANY’S discretion
