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It's hard to see the line here: if a lawyer has a 1:1 meeting with someone and tells them that using certain terms can be legally risky that's protected? If he

It's hard to see the line here: if a lawyer has a 1:1 meeting with someone and tells them that using certain terms can be legally risky that's protected? If he has a group meeting with 10 execs to advise the same? One lawyer gives the same advice to 100 people, 1000 people, 10000 people what is the number of people receiving the information where verbatim the exact same conversation isn't legally protected anymore?

lazide 3y ago
Are the people having direct conversations with the lawyer, where they ask for legal advice on an issue? Then it’s covered. If they aren’t, it’s not. 10 execs? Maybe. If they’re all involved in the same thing and all asking for advice. Seems unlikely to actually be the case though. So probably not. 100 folks listening to a presentation? Definitely not covered.
- abduhl 3y ago
  This is a weird way to view the test. The conversation is privileged if the conversation includes the provision (or seeking) of legal advice from the lawyer to (by) their client. That means that the contents of the conversation cannot be forced to be divulged; however, if the conversation is about a specific event and the legal impacts of that it doesn’t bring the facts of that event under the privilege. “Joey said that we can kill the competition with this new feature, is that going to be a problem for us from an antitrust perspective?” Privileged: whether or not that is going to be a problem from an antitrust perspective Non-privileged: Joey said that we can kill the competition with this new feature The number of people is irrelevant except as a gauge for whether or not legal advice is actually being provided. If you were to cc an entire department on an email to your counsel with the above question it wouldn’t change the analysis. Recall that in the corporate context the corporation is the client and employees are the corporation’s agents. Whether 1 or 100 employees, it’s the same corporation. What should be the “correct” answer legally is that, if the lawyer is providing the training, it should be privileged regardless of how often it occurs or how many people are trained. The potential catch here is that you can’t use privilege to protect conversations where you’re telling people how to commit a crime, and teaching hundreds of people how not to lose antitrust buzzword bingo starts to look suspiciously like telling (or even helping) your client (the corporation) how to get away with a crime.
  - lazide 3y ago
    Haha, no. Training is not privileged, for the same reason CC’ng an entire department will cause one to lose privilege on a conversation. There are parties privy to the conversation (which the parties are aware are party to the conversation) that aren’t even remotely plausibly trying to get legal advice, or part of the matter being advised on in any direct way. Trainings aren’t seeking legal advice. Being a random employee reading email isn’t seeking legal advice. The larger the group, the less plausible any argument gets for this reason. There is no way a lawyer is having a conversation or giving legal advice (actual advice) to 100 people at once. Even 10 is highly improbable. If all parties to the conversation can’t even plausibly claim it’s a private conversation with their lawyer to seek legal advice, then the courts aren’t going to even think of taking a privilege claim seriously. Even if they can it can still be pierced if there is evidence privilege was used to commit crimes, further a conspiracy, etc.
    - abduhl 3y ago
      Nothing you’ve said is true categorically and many attorney hours have been spent arguing both sides of this with the outcome being anything but predictable. Again, the test is whether an attorney is communicating legal advice to the client (or such is being sought), which happens to be the corporation that acts via its employees. It’s rare in the legal context for someone to make a statement that is unarguably wrong, but luckily this is one of them: “[T]raining materials prepared by in-house counsel to advise employees on the law applicable to their jobs are entitled to [attorney-client] protection because they provide legal advice.” https://law.justia.com/cases/federal/district-courts/rhode-island/ridce/1:2016cv00132/40121/79 https://law.justia.com/cases/federal/district-courts/rhode-i... Corporate privilege is one of the most complicated and misunderstood areas of law. It is hard in theory and even harder in practice.
      - lazide 3y ago
        That is a rather special edge case - it was specifically directed training that she specifically requested on specific legal issues directly applicable to her job, directly communicated to her by an attorney, clearly marked as confidential, and was nearly purely legal advice directly applicable to her job. It wasn’t a class given widely, it wasn’t broad or generic, it wasn’t given unsolicited, etc. Point taken though, and thanks for the cite!

lazide 3y ago

Are the people having direct conversations with the lawyer, where they ask for legal advice on an issue? Then it’s covered. If they aren’t, it’s not. 10 execs? Maybe. If they’re all involved in the same thing and all asking for advice. Seems unlikely to actually be the case though. So probably not. 100 folks listening to a presentation? Definitely not covered.

abduhl 3y ago
This is a weird way to view the test. The conversation is privileged if the conversation includes the provision (or seeking) of legal advice from the lawyer to (by) their client. That means that the contents of the conversation cannot be forced to be divulged; however, if the conversation is about a specific event and the legal impacts of that it doesn’t bring the facts of that event under the privilege. “Joey said that we can kill the competition with this new feature, is that going to be a problem for us from an antitrust perspective?” Privileged: whether or not that is going to be a problem from an antitrust perspective Non-privileged: Joey said that we can kill the competition with this new feature The number of people is irrelevant except as a gauge for whether or not legal advice is actually being provided. If you were to cc an entire department on an email to your counsel with the above question it wouldn’t change the analysis. Recall that in the corporate context the corporation is the client and employees are the corporation’s agents. Whether 1 or 100 employees, it’s the same corporation. What should be the “correct” answer legally is that, if the lawyer is providing the training, it should be privileged regardless of how often it occurs or how many people are trained. The potential catch here is that you can’t use privilege to protect conversations where you’re telling people how to commit a crime, and teaching hundreds of people how not to lose antitrust buzzword bingo starts to look suspiciously like telling (or even helping) your client (the corporation) how to get away with a crime.
- lazide 3y ago
  Haha, no. Training is not privileged, for the same reason CC’ng an entire department will cause one to lose privilege on a conversation. There are parties privy to the conversation (which the parties are aware are party to the conversation) that aren’t even remotely plausibly trying to get legal advice, or part of the matter being advised on in any direct way. Trainings aren’t seeking legal advice. Being a random employee reading email isn’t seeking legal advice. The larger the group, the less plausible any argument gets for this reason. There is no way a lawyer is having a conversation or giving legal advice (actual advice) to 100 people at once. Even 10 is highly improbable. If all parties to the conversation can’t even plausibly claim it’s a private conversation with their lawyer to seek legal advice, then the courts aren’t going to even think of taking a privilege claim seriously. Even if they can it can still be pierced if there is evidence privilege was used to commit crimes, further a conspiracy, etc.
  - abduhl 3y ago
    Nothing you’ve said is true categorically and many attorney hours have been spent arguing both sides of this with the outcome being anything but predictable. Again, the test is whether an attorney is communicating legal advice to the client (or such is being sought), which happens to be the corporation that acts via its employees. It’s rare in the legal context for someone to make a statement that is unarguably wrong, but luckily this is one of them: “[T]raining materials prepared by in-house counsel to advise employees on the law applicable to their jobs are entitled to [attorney-client] protection because they provide legal advice.” https://law.justia.com/cases/federal/district-courts/rhode-island/ridce/1:2016cv00132/40121/79 https://law.justia.com/cases/federal/district-courts/rhode-i... Corporate privilege is one of the most complicated and misunderstood areas of law. It is hard in theory and even harder in practice.
    - lazide 3y ago
      That is a rather special edge case - it was specifically directed training that she specifically requested on specific legal issues directly applicable to her job, directly communicated to her by an attorney, clearly marked as confidential, and was nearly purely legal advice directly applicable to her job. It wasn’t a class given widely, it wasn’t broad or generic, it wasn’t given unsolicited, etc. Point taken though, and thanks for the cite!