Commentary on The Yates Memorandum

In 2015, then Deputy Attorney General Sally Yates issued a DOJ memorandum on the subject of Individual Accountability for Corporate Wrongdoing, available in full here.  Known as the Yates Memorandum, the DOJ issued this directive to focus on holding individuals responsible for the illegal acts of the corporations for which they worked.

The memorandum, along with DAG Yates’ subsequent remarks, has generated much debate about whether the DOJ was, at least implicitly, returning to a culture of pressuring companies to waive the attorney-client privilege and work-product doctrine.  Now almost three years old and subject to modification under the Trump Administration, Professor Gideon Mark published an excellent article tracing the DOJ memoranda preceding the Yates Memo, and expressing concern over privilege waiver:

[T]he Yates Memorandum is likely to result in continued waivers of the attorney-client privilege and attorney work product protection, even if the DOJ does not make express requests. Waivers no doubt aid the DOJ in criminal and civil investigations, but they also undermine and weaken the attorney-client relationship and the ability of corporations to effectively negotiate with the DOJ during enforcement actions.

Professor Mark proposes tweaks to the memo, including making explicit that DOJ will not implicitly require privilege waiver for cooperation credit.

Still, the Yates Memorandum could benefit from some tweaking. If the DOJ is serious that it does not seek waivers of the attorney-client privilege or attorney work product doctrine, then it probably should make that explicit. Currently, the Memorandum merely states that the DOJ does not require waivers. This is a very different situation from one in which companies nevertheless feel compelled to waive in order to obtain cooperation credit. Similarly, the DOJ should make clear that participation in a joint defense agreement will have no negative impact on whether, or to what extent, a company receives cooperation credit.

The article is a good read, and not just because it cites my article, co-authored with Ty Howard, titled In-House Counsel: Protecting the Privilege in a Post-Yates Memorandum World, 31 Corporate Counsel, No. 3, June 2016 (available here).  You may access Professor Mark’s article, The Yates Memorandum, 51 U.C. Davis L. Rev. 1589 (2018), here.

Lawyer Reveals Prospective Client’s Communications—How did Disciplinary Board React?

If a lawyer meets with a prospective client but decides—for conflict-of-interest purposes—that he cannot proceed with the representation, do the attorney–client privilege and ethical rules of confidentiality prohibit the lawyer from revealing the prospective client’s communications?  A Nevada lawyer discovered the answer the hard way.  In the Matter of Discipline of Mark A. Beguelin, Bar No. 3675, 2018 WL 2272918 (Nev. May 11, 2018), available here.

The Rule

Model Rule of Professional Conduct 1.18 provides that, except in a narrow circumstance, a lawyer may not reveal information learned from a prospective client, “[e]ven when no client–lawyer relationship ensues.”  The Rule’s comments provide that a person becomes a “prospective client” “by consulting with a lawyer about the possibility of forming a client–lawyer relationship.”  And when that consultation occurs, the Rule imposes a confidentiality requirement on the lawyer, “regardless of how brief the initial conference may be.”

The Privilege

Most jurisdictions similarly hold that the attorney–client privilege protects from disclosure confidential communications between a lawyer and a prospective client.  In his excellent treatise, Testimonial Privileges, privilege guru David Greenwald clearly recounts that the privilege applies to “prospective clients.” David Greenwald, et al., Testimonial Privileges, § 1.23 (3d ed.). The Nevada Supreme Court, in fact, has held that the privilege protects the substance of a lawyer’s consultation with a prospective client.  Pohl v. Ninth Judicial Dist. Court, 2016 WL 383086 (Nev. Jan. 28, 2016), available here.

The Consultation

The Pohl decision makes what one Nevada lawyer did a bit puzzling.  A prospective client met with the lawyer about filing a divorce action and revealed to him that her husband was verbally abusive. More…

MPR: Penn State, Kavanaugh, and Inappropriate Pillow Talk

We see privilege issues discussed in judicial decisions, legal commentary, and mainstream news.  Here is my Monthly Privilege Roundup of interesting privilege issues for July 2018.

→Privilege issues continue to emanate from the Jerry Sandusky scandal at Penn State University.  First, a Pennsylvania court held that former PSU GC Cynthia Baldwin violated the attorney–client privilege of three PSU officials by (1) failing to provide adequate Upjohn warnings and (2) later testifying against them at a grand-jury hearing.  Read about it here.  Second, the PA disciplinary board is considering sanctions against Baldwin for this conduct.  Story here.  And now, the PA disciplinary board is considering sanctions against former prosecutor Frank Fina for calling Baldwin to testify and divulge privileged information.  Story from PennLive available here.

→Troubling story out of San Diego.  Law-enforcement authorities raided a cannabis oil manufacturer, and seized the owner’s privileged communications with the company’s attorney.  The attorney sought to prevent use of those communications, but a judge turned some over prosecutors, which resulted in felony charges against the lawyer.  The lawyer later pleaded guilty to a misdemeanor and agreed to undergo ethics training.  Story here.  This is, of course, a much different outcome than, to date, has occurred in the raid on Michael Cohen’s Trump Tower office, which you may read about here.

→Improper pillow talk?  The Ohio Board of Professional Conduct suspended two lawyers, who live together and are engaged, for sharing privileged information about their respective clients.  The Board stayed the six-month suspension subject to good behavior, and the Ohio Supreme Court now reviews that decision.  Story here.

→Some are questioning whether SCOTUS nominee Judge Brett Kavanaugh would uphold the Supreme Court’s decision in United States v. Nixon rejecting President Nixon’s executive privilege claim and forcing him to release Oval Office audiotapes.  Supporters respond that Kavanaugh has embraced the Nixon decision in law review articles.  Read the Washington Post story here, and the National Review‘s retort here.

→Interesting issue pending before the First Circuit Court of Appeals.  The Rhode Island AG asserts the attorney–client privilege in refusing to produce emails between a state government employee and the government’s lawyer to federal prosecutors.  Read about the oral argument from Law360, accessible here.

→In previous MPRs, I have noted numerous instances of law-enforcement personnel listening to conversations between a criminally accused and his lawyer.  An editorial in the Omaha World-Herald appropriately urges law-enforcement agencies to cease this practice. The column inaccurately states that the Sixth Amendment “says that conversations between a defendant and his or her defense attorney are privileged.”  The Sixth Amendment does not mention the attorney-client privilege, and courts have held that listening to privileged communications is not a per se violation of  an accused’s Sixth Amendment’s right to effective assistance of counsel.  This inaccuracy aside, privilege violations should not occur.  You may read the editorial here.