Single Depo-Prep Meeting with Multiple Employees—Privilege Waiver? 1

It’s no secret.  Corporate trial lawyers often hold a group meeting of several employees to prepare them for upcoming depositions. The idea, of course, is one of efficiency—the lawyer may provide an overview of the case, discuss the relevance of the employees’ testimony, and give deposition instructions in one meeting rather than multiple preparation sessions.

The question may arise whether the attorney–client privilege protects these group discussions from disclosure. And here is a twist—even if the privilege protects the employees’ individual conversations with the lawyer, does it also protect conversations within the group meeting between two employees?

The court’s decision in Pallies v. The Boeing Co., 2017 WL 3895614 (W.D. Wash. Sept. 6, 2017), provides guidance.  You may read it here.

In this disability-discrimination case against The Boeing Company, Boeing’s lawyer met with several Boeing employees in a group setting to prepare them for upcoming depositions.  Boeing’s counsel did so “in an effort to comply with an aggressive discovery schedule” that included 8 employee depositions over 3 days. More…

Touch Base–Court Applies U.S. Privilege Law to German Internal Investigation

Foreign corporations with a significant U.S. presence increasingly face this question—which country’s privilege law applies when their U.S. lawyers communicate with the companies’ foreign employees?  The SDNY confronted this choice-of-privilege-law issue where a “principally” U.S. law firm conducted an internal investigation for a German company. In re: Ex Parte Application of financialright GmbH, 2017 WL 2879696 (SDNY June 22, 2017).  You may read the decision here.  Let’s discuss. More…

Lawyer Discloses Privileged Info Without “Difficult” Client’s Consent —Here’s How the Ethics Board Responded 1

Model Rule of Professional Conduct 1.6 provides that, except in limited circumstances, lawyers “shall not reveal” a current client’s confidential information without “informed consent.”  Rule 1.9(c)(2) similarly prohibits lawyers from disclosing a former client’s confidential information without authorization.

Many conflate the ethical rules of confidentiality with the mandates of the attorney–client privilege.  Lawyers should know, however, that ethical confidentiality requirements are broader than the privilege—after all, the privilege applies to a client’s communications while the confidentiality rule applies to the client’s information.

But ethical rules banning unauthorized disclosure of client confidences certainly include privileged communications, as one Minnesota attorney unfortunately discovered after the Minnesota Supreme Court upheld a sanction against him for doing just that—disclosing client communications to an adversary without consent.  In re Charges of Unprofessional Conduct in Panel File No. 41310, 899 S.W.2d 821 (Minn. Aug. 2, 2017).  You may read the opinion here.

Settlement Gone Awry

The Attorney represented his Client in seeking a pre-suit settlement with an insurance company for injuries sustained in a “motor vehicle accident,” otherwise known as a car wreck.  The greedy Client wanted $50K, but the stubborn insurance adjuster would only offer $20K. More…