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…

VW Avoids Privilege Waiver in Dieselgate Internal Investigation—Here’s How 1

May you disclose a privileged document to a government-enforcement agency and, later, successfully claim that the privilege precludes disclosure to an adversary in a civil proceeding?  Generally, there is no common-law selective-waiver doctrine, but the SDNY, in In re: Ex Parte Application of financialright GmbH, 2017 WL 2879696 (SDNY June 23, 2017), found no privilege waiver when Volkswagen’s lawyers disclosed privileged information to the Justice Department under a Non-Disclosure Agreement.  You may read the opinion here.

Internal Investigation into Emissions Scandal

Volkswagen’s 2015 emissions scandal—where it inserted software to circumvent U.S. emissions tests—is well known.  VW retained Jones Day, which conducted an extensive factual investigation as part of its representation.  Jones Day analyzed millions of documents and interviewed hundreds of VW employees.

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