While not at all minimizing the significant health concerns arising from the COVID–19 outbreak, this global pandemic has significantly altered how—and where—lawyers work and dispense legal advice. The President’s Coronavirus Guidelines for America, available here, and the Centers for Disease Control and Prevention strongly recommend that we work from home and avoid in-person group meetings and travel. And with or without this governmental guidance, many companies are encouraging or requiring employees, including their lawyers, to work remotely.

These new realities alter how lawyers, including in-house counsel, interact with their clients. Clients are no longer meeting face-to-face in their lawyers’ offices. In the corporate world, employees can no longer drag an in-house lawyer into an in-person meeting or stop by the office to seek legal guidance.

The upshot is that lawyers will necessarily increase the number of videoconference meetings and the number of electronic communications, whether by email, text, messaging apps, or some similar avenue. And with the increase of written communications comes a concomitant increase in potentially discoverable communications and privilege challenges.

So, this is the perfect time to remind ourselves of proper privilege hygiene. Let’s not let poor practices during the current pandemic evolve into a privilege-loss epidemic in the months and years to come.

Attorney–Client Privilege: Foundational Elements

Lawyers can best implement proper privilege hygiene tips with a thorough understanding of the attorney–client privilege’s foundational elements. Without these elements, there is no privilege. The attorney–client privilege only protects confidential communications between an attorney and her client made for legal-advice purposes and kept confidential thereafter.

Privilege Hygiene Tips

With these essential elements as our guide, let’s consider a few practice pointers for working outside the office.Keep Reading this POP Post

Many privilege-log commentaries originate from courts chastising parties for submitting inadequate privilege logs. But this commentary has a different origin.

In what one could argue is a developing privilege-log standard in the Sixth Circuit, a Michigan federal court explained the privilege-log requirements and found a party’s log “substantially compliant.” Carhartt, Inc. v. Innovative Textiles, Inc., 333 F.R.D. 118 (ED Mich. 2019). Available here.

And if there was any chastising, the court aimed it at the challenging party, which submitted its own privilege log using “identical descriptions that it now complains are vague and imprecise.”

Let’s analyze what the court liked about this privilege log.Keep Reading this POP Post

Perhaps lost in the post-impeachment, presidential primary season is an important ruling that the D.C. Circuit issued on Friday afternoon, February 28, 2020. The Court held that it had no jurisdiction to decide the House Judiciary Committee and White House’s “intramural disagreement” whether former White House Counsel Don McGahn had absolute immunity from providing congressional testimony.

But in a concurring opinion, Judge Henderson opined that, jurisdiction aside, the White House’s immunity argument rested on “somewhat shaky legal ground.” Instead, the assertion of executive privilege is “the most appropriate mechanism” to determine the testimony McGahn can—and cannot—provide to congressional interrogators. Committee on the Judiciary v. McGahn, (D.C. Cir. Feb. 28, 2020).  You may read the majority, concurring, and dissenting opinions here.

A Two-Branch Dispute

You will recall that the House Judiciary Committee subpoenaed former White House Counsel to testify as part of its investigation into the President’s possible obstruction of justice during the Mueller investigation. You may read the subpoena here.

The White House directed McGahn not to testify. It cited a May 20, 2019 opinion from the Office of Legal Counsel, available to review here, that presidential aides Keep Reading this POP Post