Attorney-Client Privilege

Last week, a judge in the U.S. District Court in Camden, New Jersey ruled that prosecutors can use secretly recorded conversations between Joseph Sigelman, the former chief executive officer of PetroTiger, and the company’s former general counsel, Gregory Weisman, in Sigelman’s upcoming trial.  Judge Joseph E. Irenas explained that the mere existence of an attorney-client relationship is not sufficient to make conversations privileged.  Rather, attorney-client conversations are protected only if the client is seeking, or the attorney is providing, legal advice. 
Continue Reading General Counsel’s Secret Recordings Ruled Admissible Against CEO

In its recent declination to review the Third Circuit’s decision in In Re: Grand Jury Subpoena, a case involving the contours of the crime-fraud exception to the attorney-client privilege, the U.S. Supreme Court leaves intact the Third Circuit’s conclusion that by merely informing a client of the applicable law, asking clarification questions, and advising against potentially illegal conduct, an attorney’s actions constituted advice in “furtherance of a crime or fraud” and vitiated the protections of the attorney-client privilege.

Continue Reading Supreme Court Remains Silent on Crime-Fraud Exception

Far surpassing letter writing and even phone calls, email has become the primary method by which attorneys communicate with their clients.  But in light of recent court decisions, email may soon go out of use in a place where clients need to communicate quickly and efficiently with their lawyers:  prison.  As is currently playing out in the Eastern District of New York, some criminal authorities are taking the position that there is no privilege governing emails between inmates and their attorneys sent over the Bureau of Prisons (“BOP”) TRULINCS email system, and that those authorities can therefore capture, read, and use those emails in litigation.
Continue Reading Federal Inmates Warned to Avoid Email When Contacting Attorneys

Whether documents prepared in connection with an internal investigation are protected from disclosure by the attorney-client privilege or work-product doctrine is a topic of continuing interest and current debate.  On March 6, 2014, the U.S. District Court for the District of Columbia filed a much-publicized opinion in United States ex rel. Barko v. Halliburton Co., No. 1:05-cv-1276, that held that internal investigation materials were not protected from disclosure by the attorney-client privilege or work-product doctrine because the investigation was not conducted in anticipation of litigation or to obtain legal advice.  As colleagues in Perkins Coie’s government contracts practice aptly cautioned, the Barko decision erodes critical protections against such disclosure offered by the attorney-client privilege and work-product doctrine. Fresh on the heels of Barko, just this week, the family of Joe Paterno argued in a Pennsylvania court that documents generated by former FBI director Louis Freeh’s law firm in its investigation into the Jerry Sandusky sex abuse scandal were not protected by the attorney-client privilege.  At the same time, New Jersey lawmakers are seeking to compel disclosure of outside counsel’s materials from the internal investigation regarding the New Jersey Governor’s involvement in the “Bridgegate” scandal.  Barko will likely embolden even greater numbers of litigants, as well as the government, to compel the production of sensitive information regardless of attorney-client and work-product protections.
Continue Reading Cause for Alarm? Protecting Internal Investigations from Disclosure after Barko