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Attorney Client Privilege In House Counsel


									best practices
                          Protecting Privilege
                          Under Challenge
                               Charles J. Clark is chief counsel, litigation, for Capital One Financial Corporation. He has been at Capital One
                               since August 2004 and heads the Litigation Group within the General Counsel’s Office, responsible for all
                               types of consumer and commercial litigation. Prior to joining Capital One, he served as assistant director in the
                               Enforcement Division of the U.S. Securities and Exchange Commission. He has co-chaired a Counsel to Counsel
                               roundtable on managing attorney-client communications in a time of eroding privilege.

         situation          In the current environment, business executives
                            may have an unrealistic view regarding the
                                                                                          implementation        steps
                            extent to which the attorney-client privilege
                                                                                          1. Educate executives on the parameters of the attorney-client privilege.
    protects discussions with counsel from disclosure.
                                                                                          2. Make sure the business side understands circumstances under
                                                                                             which the privilege can or must be waived.
       in-house counsel      Whether in the midst of “bet-the-company”                    3. When feasible, put informal guidelines into place to help get the
        challenge            litigation, or any other legal entanglement, one                business perspective on conduct subject to litigation.
                             of the toughest challenges arises in trying to
    gain the insight and perspective of your business clients in a manner                 4. Judge when to assert the privilege based on underlying facts to
    and in a form that does not create greater risk. In this context, in-                    avoid defending assertions of privilege that are difficult to support.
    house counsel must address getting the business side to understand
    and internalize what will—and will not—be protected from disclosure
    by the privilege, and forcing them to provide their perspective in a
    manner that recognizes the potential risk that the privilege may not
    attach or may, at some point, disappear.                                               measuring             One measure of success may be tallying the
                                                                                                success          number of times the privilege is successfully
                                                                                                                 defended. However, a truly effective approach
                                                                                          to managing attorney-client privilege will lead to fewer instances
      approach                In-house counsel can craft an effective                     when arguably privileged material is being discussed in a manner and
             adopted          approach to managing communications by                      a medium that makes the assertion harder to defend.
                              dividing it roughly into two components. One is
    to institute training to help executives understand the parameters of
    attorney-client privilege and the circumstances that must be in place for
    in-house counsel to argue successfully that the assertion is valid. The
                                                                                          future issues
    explicit message in this process is that (a) the privilege is fairly limited          to consider
    in scope; (b) that certain elements must be in place before it can attach;
    (c) the privilege may be waived through inadvertent conduct; (d) the                  Clients—whether internal or external—should not
    privilege may be waived purposefully under appropriate circumstances;                 be allowed to operate under a false or questionable
    and (e) the decision whether to assert—or waive—the privilege                         pretense that all discussions are privileged. Even
    belongs to the company, not to individual executives.                                 conversations that are privileged may be waived under
    In addition to educating executives about the fundamentals of the                     appropriate or as yet unforeseen circumstances.
    attorney-client privilege, in-house counsel should create guidelines or
    structures to help guide careful and constructive discussions. Such
    guidelines would promote full and accurate discussion aimed at eliciting
    the business perspective regarding conduct subject to litigation or
    possible resolution strategy. At the same time, such guidelines will
    ensure that the prerequisites for successfully asserting a claim of
    privilege are in place.


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