9 ms·

You can imagine whatever you want. You chose to imagine an uncollaborative and harmful thing, there are just as many benign things to imagine.

revolvingocelot 5y ago
You chose to open a discussion on how great it is to have such sharp lawyers that their very presence discourages government investigation into a corporation's doings. What sort of doings require such shielding? Collaborative and harmless ones, surely? I can't imagine many benign things that one would feel the need to cloak behind attorney-client privilege. Maybe a surprise party for a DOJ investigator?
- vmception 5y ago
  We live in different worlds I don’t care enough to make examples but I do care enough to notice how routine this can become once you’ve gone out of the way to lay down the building blocks. Google and some email clients suggest who to CC nowadays. You dont have to think about it. The counsel is already hired and there. Just CC and who cares what is being discussed. Thats what the article is about. Think about the difference in power, many people get a lawyer for a reactionary reason. Because the threat and damage already occurred, the utility of a lawyer is extremely limited. Alternatively when a lawyer is there preemptively, at all times, the threat is simply harder to materialize. My point is that its much less likely that people were consciously trying to hide something - most of the time - which is my point. Everything can have a semblance of legal advice, putting the onus on the government to parse that first or decide if its even worth parsing that, in comparison to just getting a subpoena rubber stamped and railroading someone into prison. One is more expensive than the other. “Hm we don’t know what they did, what legal strategy they employed, and even if we got a subpoena on the little evidence we have, we cant use any of their communications for evidence, attempting parallel construction will leave us caught red handed, and we already know they have the funds to see this through, maybe we should stick with someone that cant afford their base level of rights” Like a lawyer, it is extremely easy for me to compartmentalize my appreciation of the tools from the theoretical negative consequence you chose to imagine. I chose to imagine all the people that take plea deals from an overzealous government.
  - vba616 5y ago
    >My point is that its much less likely that people were consciously trying to hide something The whole point of a policy is that people aren't consciously acting according to their whim. Like a document destruction policy. But large companies often have hundreds of lawsuits going at any given time. So the policy would be introduced with the conscious intent that they would like to hide as much as they can regarding all of them.
  - revolvingocelot 5y ago
    >We live in different worlds You're damn right we do -- I don't share this fear that the government is going to be randomly "getting a subpoena rubber stamped and railroading someone into prison". Maybe this is a function of my ignorance of plight of the little-guy big-businessman, or maybe it's a function of the way I make a living. Are you engaging in financial activities that would invite government scrutiny? >“Hm we don’t know what they did, what legal strategy they employed, and even if we got a subpoena on the little evidence we have, we cant use any of their communications for evidence, attempting parallel construction will leave us caught red handed, and we already know they have the funds to see this through, maybe we should stick with someone that cant afford their base level of rights” Making one's particular malfeasance that much more difficult to investigate would indeed disincentivize beleaguered underfunded government white-collar crime investigators. Solid!
- sokoloff 5y ago
  I’m just a Joe Average W-2 working stiff, but if I ever needed an attorney, I’d expect that I could divulge all the facts of my situation to them without those specific disclosures being subject to subpoena (5th Amendment and all). To me, it’s not about “should this specific thing be cloaked behind privilege?” but rather “to make the attorney-client relationship productive and to make representation effective, they should be privileged”. “You have nothing to fear if you have nothing to hide” is not an argument for much of anything and certainly not for by default removing the privileged nature of communication between an attorney and their client.
  - danielmarkbruce 5y ago
    Exactly. Employees would be very reluctant to divulge anything if they thought it wasn't privileged. It would be an awful scenario where a bunch of bad stuff would keep happening and would never be stopped because you couldn't ever talk about it.
  - vba616 5y ago
    >To me, it’s not about “should this specific thing be cloaked behind privilege?” but rather “to make the attorney-client relationship productive and to make representation effective, they should be privileged”. If Bob Jones emails Joe Schmoe and cc's Dewey Cheatham & Howe, maybe the communication to the lawyers is privileged, but why would the communication to Joe be privileged? It's neither to a lawyer nor asking for legal advice.
    - danielmarkbruce 5y ago
      From a practical perspective people usually say "hey John (at Dewey), what are your thoughts on X?" They also put "privileged and confidential" in the subject and/or email body.
      - vba616 5y ago
        If the email is going to other people than John, each copy received is treated as a separate document under a different custodian. At least, this is how I recall it working. Recovering a unified concept of an email is done afterwards.

revolvingocelot 5y ago

You chose to open a discussion on how great it is to have such sharp lawyers that their very presence discourages government investigation into a corporation's doings. What sort of doings require such shielding? Collaborative and harmless ones, surely? I can't imagine many benign things that one would feel the need to cloak behind attorney-client privilege. Maybe a surprise party for a DOJ investigator?

vmception 5y ago
We live in different worlds I don’t care enough to make examples but I do care enough to notice how routine this can become once you’ve gone out of the way to lay down the building blocks. Google and some email clients suggest who to CC nowadays. You dont have to think about it. The counsel is already hired and there. Just CC and who cares what is being discussed. Thats what the article is about. Think about the difference in power, many people get a lawyer for a reactionary reason. Because the threat and damage already occurred, the utility of a lawyer is extremely limited. Alternatively when a lawyer is there preemptively, at all times, the threat is simply harder to materialize. My point is that its much less likely that people were consciously trying to hide something - most of the time - which is my point. Everything can have a semblance of legal advice, putting the onus on the government to parse that first or decide if its even worth parsing that, in comparison to just getting a subpoena rubber stamped and railroading someone into prison. One is more expensive than the other. “Hm we don’t know what they did, what legal strategy they employed, and even if we got a subpoena on the little evidence we have, we cant use any of their communications for evidence, attempting parallel construction will leave us caught red handed, and we already know they have the funds to see this through, maybe we should stick with someone that cant afford their base level of rights” Like a lawyer, it is extremely easy for me to compartmentalize my appreciation of the tools from the theoretical negative consequence you chose to imagine. I chose to imagine all the people that take plea deals from an overzealous government.
- vba616 5y ago
  >My point is that its much less likely that people were consciously trying to hide something The whole point of a policy is that people aren't consciously acting according to their whim. Like a document destruction policy. But large companies often have hundreds of lawsuits going at any given time. So the policy would be introduced with the conscious intent that they would like to hide as much as they can regarding all of them.
- revolvingocelot 5y ago
  >We live in different worlds You're damn right we do -- I don't share this fear that the government is going to be randomly "getting a subpoena rubber stamped and railroading someone into prison". Maybe this is a function of my ignorance of plight of the little-guy big-businessman, or maybe it's a function of the way I make a living. Are you engaging in financial activities that would invite government scrutiny? >“Hm we don’t know what they did, what legal strategy they employed, and even if we got a subpoena on the little evidence we have, we cant use any of their communications for evidence, attempting parallel construction will leave us caught red handed, and we already know they have the funds to see this through, maybe we should stick with someone that cant afford their base level of rights” Making one's particular malfeasance that much more difficult to investigate would indeed disincentivize beleaguered underfunded government white-collar crime investigators. Solid!
sokoloff 5y ago
I’m just a Joe Average W-2 working stiff, but if I ever needed an attorney, I’d expect that I could divulge all the facts of my situation to them without those specific disclosures being subject to subpoena (5th Amendment and all). To me, it’s not about “should this specific thing be cloaked behind privilege?” but rather “to make the attorney-client relationship productive and to make representation effective, they should be privileged”. “You have nothing to fear if you have nothing to hide” is not an argument for much of anything and certainly not for by default removing the privileged nature of communication between an attorney and their client.
- danielmarkbruce 5y ago
  Exactly. Employees would be very reluctant to divulge anything if they thought it wasn't privileged. It would be an awful scenario where a bunch of bad stuff would keep happening and would never be stopped because you couldn't ever talk about it.
- vba616 5y ago
  >To me, it’s not about “should this specific thing be cloaked behind privilege?” but rather “to make the attorney-client relationship productive and to make representation effective, they should be privileged”. If Bob Jones emails Joe Schmoe and cc's Dewey Cheatham & Howe, maybe the communication to the lawyers is privileged, but why would the communication to Joe be privileged? It's neither to a lawyer nor asking for legal advice.
  - danielmarkbruce 5y ago
    From a practical perspective people usually say "hey John (at Dewey), what are your thoughts on X?" They also put "privileged and confidential" in the subject and/or email body.
    - vba616 5y ago
      If the email is going to other people than John, each copy received is treated as a separate document under a different custodian. At least, this is how I recall it working. Recovering a unified concept of an email is done afterwards.