Corporate Attorney-Client Privilege “Cautiously and Narrowly” Applied to In-House Counsel 1

Another judicial decision reminds us that courts impose a heightened evidentiary burden on in-house counsel seeking to protect communications (particularly emails) under the corporate attorney-client privilege.  In Adair v. EQT Production Co., 285 F.R.D. 376 (W.D. Va. 2012), the court, reviewing a privilege log and an in-house lawyer’s affidavit, ruled that none of the lawyer’s emails at issue were privileged.  And in issuing the ruling, the court provided helpful lessons and reminders for in-house lawyers.

In-House Counsel’s Emails at Issue

The Adair case involves claims for royalties from gas fields operated by EQT Production in Southwest Virginia. The plaintiffs moved to compelBusiness meeting with work on contract the production of several emails either sent or received by an EQT in-house lawyer.  During the time the emails were created, this in-house lawyer served in various legal capacities, including Vice-President and General Counsel, Vice-President of Legislative and Regulatory Affairs, Managing Director of External Affairs, and Deputy General Counsel.  And in each of these roles, the lawyer reported directly to EQT’s General Counsel.

The in-house counsel asserted that all these emails were privileged and produced a privilege log and supporting affidavit.  But the privilege log did not describe the emails as “seeking legal advice” and his affidavit did not specifically describe the emails were for providing legal advice.  The in-house lawyer merely stated that he communicated, in his legal capacity, with company employess when responding to a media inquiry, commenting on pending state legislation, and dealing with royalty issues before the state Oil and Gas Board.

The Ruling–Lessons and Reminders

The court decided to review five emails in camera because the privilege log sufficiently described the emails as pertaining to legal advice; however, the court held that all other emails were not privileged and must be produced.  The court’s ruling contains several lessons and reminders for in-house lawyers seeking to establish and maintain the corporate attorney-client privilege.

  • Burden of Proof for In-House Lawyers

The court provided a succinct yet alarming reminder of the heavy evidentiary burden for proving the attorney-client privilege applies to in-house counsel’s communications.  The court bluntly stated that “the determination of whether the attorney-client privilege applies . . . becomes more difficult when the sender or recipient . . . is in-house counsel for a corporate entity.” The court echoed other courts’ concern that in-house lawyers use the privilege to create a “large zone of secrecy” for corporate communications that are otherwise relevant to a particular dispute.  Because of this concern, the court “cautiously and narrowly” applied the corporate attorney-client privilege to communications involving in-house counsel.

  • Privilege Log

The Adair ruling emphasizes the growing importance of adequate descriptions of privileged documents in the party’s privilege log.  The court noted that the party seeking privileged information has little information to challenge a privilege claim and must rely on the opposing party’s privilege log descriptions.  The court held that the party withholding documents under a privilege claim “must specifically and factually support its claim of privilege by way of evidence, not just argument.”

And this burden begins with the privilege log.  The log’s privilege descriptions must meet the party’s burden of showing the communications are actually privileged.  This requirement means, at the very least, that the privilege log identify each communication as created for the purpose of the in-house counsel rendering legal advice or as otherwise of a predominantly legal character.  In Adair, the court found that the majority of entries on the privilege log failed to indicate that the emails were for legal advice.  This failure in large part sunk the privilege claims without the need for an in camera review.

  • Conflict of Privilege Laws

Many lawyers and some courts neglect consideration of the conflict of privilege laws issue when considering whether an evidentiary privilege applies.  In Adair, the case at the time of the ruling involved only state-law claims. And although the case was pending in federal court, the court applied the law of the forum state–Virginia–rather than federal law.

PoP Analysis

The Adair ruling represents yet another example of courts imposing a heightened scrutiny to in-house lawyers’ privilege claims.  Other recent decisions from a Wisconsin court and an Idaho court further illustrate the continued scrutiny of the corporate attorney-client privilege.  But the Adair court’s emphasis on how in-house counsel must satisfy their heightened burden is instructive.  Few courts highlight the importance of a company providing a specific description of the privileged communication in the privilege log, but Adair makes clear that the company must initially meet its burden in the privilege log by stating that the communication was created for the purpose of the in-house lawyer rendering legal advice or is otherwise for legal-advice purposes.

The Adair court also criticized the in-house attorney’s affidavit filed in opposition to the motion to compel.  Courts clearly require in-house lawyers to “specifically show,” via affidavit, that the communication was for legal-advice purposes, and Adair emphasizes this point. The court held that the affidavit was too general and contained mere conclusory statements that the in-house lawyer “considered the communications privileged” or that, “in his view, he was acting in a legal capacity.”  Adair shows that in-house lawyers’ supporting affidavits must be specific and tailored for each communication.

Finally, while the court correctly applied Virginia state privilege law (as opposed to federal privilege law) in this diversity case, it did not indicate whether that included Virginia’s conflict of laws rules.  Courts and lawyers should remember that application of state law in diversity actions includes that state’s conflict of laws rules; so, it could be that, based on the location and substance of the privileged communications, Virginia’s conflict of privilege laws rules would direct the federal court to apply a different state’s privilege law.  The Adair decision is silent on whether another state’s privilege law was implicated, but a conflict of privilege law analysis should be considered in diversity cases where state privilege law applies.

Georgia on My Mind. Court Applies Georgia’s Accountant-Client Privilege to Texas Accountant and his North Carolina Client 2

A Georgia federal court, sitting in diversity, applied Georgia’s accountant-client privilege to documents exchanged between a Texas accountant and his North Carolina client.  Slide1The documents would not have been privileged under Texas or North Carolina law because neither state has an accountant-client privilege.  But the federal court applied the forum (Georgia) state’s privilege law with little meaningful conflict of law analysis, resulting in a potential windfall for the North Carolina plaintiff and hardship on the Georgia defendant.  Christenbury v. Locke Lord Bissell & Liddell, LLP, 285 F.R.D. 675 (N.D. Ga. 2012).

Georgia by way of North Carolina and Texas

The Christenbury case involves a professional negligence claim against an Atlanta attorney regarding tax advice provided to a North Carolina client.  The attorney moved for production of documents exchanged between the client and his Texas accountant, whom the client retained post transaction to assist in tax-return preparation.  The North Carolina client argued that Georgia’s accountant-client privilege statute protected the documents from discovery, while the defendant attorney argued that Georgia’s privilege law did not apply because the client’s communications with his accountant occurred entirely outside of Georgia.

Georgia on the Court’s Mind

The all-time great hit, Georgia on My Mind, popularized by Ray Charles, contains these lyrics:

Other arms reach out to me
Other eyes smile tenderly
Still in peaceful
dreams I see
The road leads back to you

Perhaps the Court had this tune in mind when it ruled that Georgia’s accountant-client privilege applied to the North Carolina client’s communications with his Texas accountant.  The court reviewed Georgia’s privilege, contained in a state statute, and noted that it contained no geographic boundaries.  And the court found that Georgia’s public policy of protecting communications between an accountant and her client conflicts with Texas and North Carolina’s failure to recognize the privilege. And finally, the court relied upon a Maryland federal court’s decision to apply Maryland’s accountant-client privilege to a New York accountant and his New York client. Hare v. Family Publications Serv., Inc., 334 F. Supp. 953 (D. Md. 1971).

PoP Analysis

This case highlights the important conflict of privilege law analysis that many lawyers and courts choose to ignore.  This conflict issue appears to be a matter of first impression in Georgia; and while the court may have correctly predicted Georgia law, one may question the court’s analysis in reaching this decision.  Did this client, residing in a state (North Carolina) that does not recogize the accountant-client privilege, expect that his communications with an accountant residing in another state (Texas) does that also not recognize the privilege were privileged? Hard to believe that was a legitimate expectation.

The court, sitting in diversity, properly applied Georgia law to this question, but this application of law must include Georgia’s conflict of laws rules.  The court failed to discuss whether Georgia’s conflict of laws rules warranted application of the forum law from the old territorial approach of the First Restatement of Conflicts of Laws, or whether Georgia’s conflict of privilege laws embraced the most significant relationship test outlined in the Second Restatement.  Georgia recently rejected the Second Restatement‘s choice of law analysis in the torts arena, see Dowis v. Mud Slingers, 621 S.E.2d 413 (Ga. 2005), and perhaps this decision would have persuaded the court to predict that Georgia courts would do the same in the privilege arena.  But the analysis was never performed.

One may also question the court’s reliance upon the Maryland federal-court decision’s in Hare.  The court stated that Georgia courts find persuasive federal courts’ decisions interpreting federal civil rules.  But evidentiary privileges are substantive, not procedural, law and are controlled at the federal level by federal common law under Fed. R. Evid. 501 rather than the federal rules of civil procedure.  Moreover, the Hare court, sitting in diversity, applied state law rather than federal.

In sum, perhaps a Georgia court would take the territorial approach and apply its own accountant-client privilege to communications between out-of-state accountants and their clients, but the Christenbury court’s analysis in reaching this decision may be questioned.  For a detailed analysis of how conflict of laws rules apply to evidentiary privileges, check out my chapter in Evidentiary Privileges for Corporate Counsel.  And in the meantime, enjoy classic Ray Charles’s rendition of Georgia on my Mind.

Evidentiary Privileges Protect DoJ Legal Memo Allegedly Supporting U.S. Targeted Killings 2

In an opinion issued on January 2, 2013, Judge Colleen McMahon of the U.S. District Court for the Southern District of New York ruled that the Justice Department may withhold from disclosure a legal memorandum prepared for Attorney General Eric Holder that allegedly provided legal support for a U.S. program targeting terrorists, including U.S.

Staff Legal Memo to Attorney General Holder Privileged from FOIA Request

Staff Legal Memo to Attorney General Holder Privileged from FOIA Request

citizens, for assassination.  Judge McMahon held that the attorney-client and deliberative process privileges prevent disclosure even though several senior executive officials publicly commented on the strong legal authority supporting the program.  But Judge McMahon’s ruling, with citations ranging from the Federalist Papers to the Magna Charta, seriously questioned “the legality of killings unilaterally authorized by the Executive that take place otherwise than on a ‘hot’ field of battle.” The New York Times Co. v. U.S. Dep’t of Justice, 2013 WL 20543 (S.D.N.Y. Jan. 2, 2013).  Here is a link to the Court’s opinion.

FOIA Requests

The case arises from FOIA requests by two New York Times reporters and the ACLU.  These requests essentially sought documents containing the legal justification for the Obama Administration’s decision that the U.S. Government may lawfully target for killing persons, including U.S. citizens, suspected of having ties to al Qaeda or other terrorists groups.

The broad requests were effectively reduced to two legal memoranda.  The first was a legal memorandum prepared for Attorney General Eric Holder by the Justice Department’s Office of Legal Counsel (OLC).  According to DoJ, the memo contained “confidential legal advice to the Attorney General, for his use in interagency deliberations, regarding a potential military operation in a foreign country.” The second memo was from Legal Counsel to the Joint Chiefs of Staff to the National Security Advisor Legal Advisor containing legal advice regarding the effect of U.S. citizenship on targeting enemy belligerents.

Public Comments Constitute Waiver?

The Times and ACLU conceded these memoranda were privileged under the deliberative process privilege and the attorney-client privilege.  But they argued that the Government had waived these privileges due to senior executive-branch officials’ public comments on the legal basis underlying the Government’s ability to target off-the-battlefield individuals, including U.S. citizens.

The Times and ACLU cited a plethora of comments by high-level executive-branch officials, including President Obama’s comments in the Google Hangout online forum and to Jay Leno during his October 25, 2011 appearance on the Tonight Show.  In speaking with Leno, President Obama stated that U.S. citizen Anwar Al-Awlaki “was probably the most important al Qaeda threat that was out there after bin Laden was taken out, and it was important that, working with the Yemenis, we were able to remove him from the field.”

The most explicit comments, however, came from Attorney General Eric Holder during a March 5, 2012 speech he gave at the Northwestern University School of Law.  In this speech, General Holder discussed at length the legal justifications for the Government’s ability to use lethal force in a foreign country against a U.S. citizen associated with al Qaeda and actively planning to kill Americans.

Law and Order

The court correctly held that the Government waives the deliberative process privilege only when a predecisional document has been adopted as a final policy.  And the adoption of a predecisional document such as a legal memorandum occurs only where the agency expressly adopts or incorporates it as a final opinion.

The court acknowledged that the various public statements clearly reference a legal opinion that was “performed by someone for someone.”  But the court correctly observed that none of the statements specifically referenced the OLC legal memorandum.

President Obama talks with the Tonight Show's Jay Leno on October 25, 2011

President Obama talks with the Tonight Show’s Jay Leno on October 25, 2011

  The Times and ACLU had nothing more than speculation that the legal analysis referenced by Attorney General Holder and others was set forth in the OLC memorandum.  And for this reason, the court held that the Government did not waive its deliberative process privilege because it neither adopted nor incorporated by reference the OLC memorandum.  The OLC memo is privileged and not subject to the Times and ACLU’s FOIA request.

As for the Joint Chiefs of Staff legal memorandum, the court reserved judgment because the Government’s supporting affidavit contained nothing more than conclusory statements that the document was predecisional and deliberative. The court declined to uphold the privilege based on these conclusory statements but provided the Government with another opportunity to correct this proof with a supplement declaration.  A ruling on this memo awaits another day.

Judge Questions Legal Authority for U.S. Targeted Killings outside the Battlefield

Although ruling that evidentiary privileges preclude disclosure of a legal memorandum that may support the U.S. program of targeting terrorists, including U.S. citizens, for killing, Judge McMahon questioned the underlying issue—whether a legal basis actually exists for the Executive Branch to authorize unilateral killings of alleged terrorists, including U.S. citizens, outside the confines of a  battlefield.

Judge McMahon, citing James Madison and French philosopher Montesquieu, noted the Founders’ tyrannical fear of placing executive and judicial power in a single individual or institution.  The judge rejected the Hamiltonian view of due process as limited to the judicial branch, and stated that the Constitutional due process right, emanating from the Magna Charta’s “by the law of the land” provision, requires the government to give notice of a proposed action and opportunity to be heard before imposing an adverse action.

Judge McMahon, citing the hundreds of thousands of American citizen deaths during the Civil War, conceded that these due process requirements do not apply to combatants actively engaged in armed combat against the United States.  But she countered that the 2011 killings of U.S. citizens Anwar Al-Awlaki, his son, Abdulrahman Al-Awlaki, and Samir Khan, were hundreds of miles away from any battlefield.  The court observed that the activities in which these three were alleged to have engaged constituted treason, but that “the Founders contemplated that traitors would be dealt with by the courts of law, not by unilateral action of the Executive.”

Acknowledging that the matter is not “straightforward,” the court stated that “there are indeed legitimate reasons, historical and legal, to question the legality of killings unilaterally authorized by the Executive that take place otherwise than on a ‘hot’ field of battle.  The judge sympathized with the Times and the ACLU and would clearly prefer the DoJ’s legal basis for the program be publicly disclosed to “allow for intelligent discussion and assessment of a tactic that (like torture before it) remains hotly debated.” The court lamented the “Alice-in-Wonderland” nature of her ruling, stating:

I can find no way around the thicket of laws and precedents that effectively allow the Executive Branch of our Government to proclaim as perfectly lawful certain actions that seem on their face incompatible with our Constitution and laws, while keeping the reasons for their conclusion a secret.