It is weird that the legal system has developed where absolutely all communication except that which has lawyers can be discovered in court. Almost like a guild support it's members. But if that's the way it is so be it.
Everything will now be feature more lawyers and education on law will be client attorney privileged.
(A good heuristic for legal reasoning is that anything that sounds like a “one weird trick to avoid getting prosecuted” listicle item has already been picked clean by the courts.)
Then it’s covered.
If they aren’t, it’s not.
10 execs? Maybe. If they’re all involved in the same thing and all asking for advice. Seems unlikely to actually be the case though. So probably not.
100 folks listening to a presentation? Definitely not covered.
“Joey said that we can kill the competition with this new feature, is that going to be a problem for us from an antitrust perspective?”
Privileged: whether or not that is going to be a problem from an antitrust perspective
Non-privileged: Joey said that we can kill the competition with this new feature
The number of people is irrelevant except as a gauge for whether or not legal advice is actually being provided. If you were to cc an entire department on an email to your counsel with the above question it wouldn’t change the analysis. Recall that in the corporate context the corporation is the client and employees are the corporation’s agents. Whether 1 or 100 employees, it’s the same corporation.
What should be the “correct” answer legally is that, if the lawyer is providing the training, it should be privileged regardless of how often it occurs or how many people are trained. The potential catch here is that you can’t use privilege to protect conversations where you’re telling people how to commit a crime, and teaching hundreds of people how not to lose antitrust buzzword bingo starts to look suspiciously like telling (or even helping) your client (the corporation) how to get away with a crime.
Training is not privileged, for the same reason CC’ng an entire department will cause one to lose privilege on a conversation.
There are parties privy to the conversation (which the parties are aware are party to the conversation) that aren’t even remotely plausibly trying to get legal advice, or part of the matter being advised on in any direct way.
Trainings aren’t seeking legal advice.
Being a random employee reading email isn’t seeking legal advice.
The larger the group, the less plausible any argument gets for this reason. There is no way a lawyer is having a conversation or giving legal advice (actual advice) to 100 people at once. Even 10 is highly improbable.
If all parties to the conversation can’t even plausibly claim it’s a private conversation with their lawyer to seek legal advice, then the courts aren’t going to even think of taking a privilege claim seriously.
Even if they can it can still be pierced if there is evidence privilege was used to commit crimes, further a conspiracy, etc.
“[T]raining materials prepared by in-house counsel to advise employees on the law applicable to their jobs are entitled to [attorney-client] protection because they provide legal advice.”
https://law.justia.com/cases/federal/district-courts/rhode-i...
Corporate privilege is one of the most complicated and misunderstood areas of law. It is hard in theory and even harder in practice.
It wasn’t a class given widely, it wasn’t broad or generic, it wasn’t given unsolicited, etc.
Point taken though, and thanks for the cite!
It was a training given widely, and online. It was arguably broad and generic. It was given unsolicited (unless you count every training an employee is told to do as unsolicited).
The fact that you misunderstand the factual and procedural posture of this opinion should key you in to how out of your depth you are.
Let’s return to what was originally under discussion.
From you: “10 execs? Maybe. If they’re all involved in the same thing and all asking for advice. Seems unlikely to actually be the case though. So probably not.
100 folks listening to a presentation? Definitely not covered.”
From you: “Trainings aren’t seeking legal advice.
Being a random employee reading email isn’t seeking legal advice.
The larger the group, the less plausible any argument gets for this reason. There is no way a lawyer is having a conversation or giving legal advice (actual advice) to 100 people at once. Even 10 is highly improbable.
If all parties to the conversation can’t even plausibly claim it’s a private conversation with their lawyer to seek legal advice, then the courts aren’t going to even think of taking a privilege claim seriously.”
Here we have a standard training that was conducted online to an entire department via slideshow. Is it privileged? According to your heuristics, it’s not. Clearly it was.
Every discovery fight is a special edge case. Every assertion of privilege is a discovery fight, and the privilege itself is a special edge case. That’s why I said corporate privilege is hard in theory and even harder in practice.
But frankly, all the G stuff was with attorney guidance and well vetted. It already had what you’re trying to get to the best of the very well paid attorney’s ability.
"-- ATTORNEY CLIENT PRIVILEGED --"
EDIT: To clarify that was something I needed to add when talking with legal. Not something magic that works for everyone.
So besides being in good standing with a member of their guild you also have to preface your communication with their religious texts. \s
That only applies when corresponding with counsel, and even there in limited circumstances (not everything can be privileged). If no attorney is addressed, it cannot be privileged.
IIRC, applying the label arbitrarily risks all correspondence being made discoverable.
-----BEGIN ATTORNEY/CLIENT PRIVILEGED BLOCK-----Not only that, but if you have the wrong people in the room, then you can lose what would otherwise have been attorney-client privilege.
I was once told by a lawyer that emails were privileged (assuming you are communicating with your corporate counsel) but Slack messages with the same person were not. Is this just a lack of precedent with Slack?
- you have to have a reasonable expectation of privacy for the communication (yelling it across a crowded room, or using a line you know is recorded by someone else means no privilege)
- it needs to be a legitimate attempt to receive counsel from said attorney.
- the only other folks who are in the communication are also related to the matter and also clients of the attorney (or attorneys for you).
So asking your attorney ‘hey, I ran over someone - am I in trouble?’ over direct private email (or other channel) that is private? That’s privileged.
CC’ng your attorney on a thread where you’re conspiring between 3-4 other people so that ‘it’s attorney client priviledged’, but the thread isn’t about you getting legal advice about the legality of the endeavor?
Not privileged.
Think of it this way:
- the courts want to be sure that you can have direct conversations with your attorney on legal matters. That includes asking questions about the law, defending yourself, etc. and they don’t want you to have to worry about putting your foot in your mouth in the process. Because a big reason attorneys exist is because people will put their foot in their mouth constantly without help.
- the courts also want to be sure that the truth of any legal matter (with the assistance of your attorney) is found in a speedy, accurate, and expeditious manner.
So if you aren’t legitimately trying to get legal advice or help? Pound sand.
You still need to be careful with email too. Just because you are emailing a lawyer doesn't make it automatically privileged, though there is a much stronger presumption and argument for privilege. But, like, your plans to go to the bar with your lawyer buddy after work are not privileged, even if they are also your corporate counsel. It still needs to be related to legal advice, or in anticipation of litigation (which itself is a very large umbrella that gets you a lot of privilege for otherwise mundane corporate communications).
At any rate, a good counsellor will tell you what is safe and not safe. Be sure to take it seriously.
One obvious reason: there are pro-bono and state-provided attorneys, but they still retain the privilege with clients that don't pay.
There's no requirement for money to change hands, and the mere act of doing so doesn't create an attorney-client relationship where one doesn't otherwise exist.
https://arstechnica.com/tech-policy/2022/03/google-routinely...
If I'm understanding this correctly you proactively filter comms through an AI. If it detects you said something that could be interpreted a certain way the communication isn't sent and the user is told to be more careful in their phrasing?
That's pretty brilliant to be honest. Except maybe the discovery will then be on what the AI filter was instructed to prevent as if that's an admission of guilt.
I absolutely think this is a good startup idea, and have been pondering building out a prototype.
I don’t love it, but in so many ways when you sit down and look at the alternative to it that isn’t tearing down or radically altering the existing legal system, it’s actually the better platform for the future.
Unfortunately there is a plethora of social control (and behavioral modification) issues intrinsic in this technology area, and like medical it requires some serious and open ethical exploration.
Thanks for the good comment.