Upholding the Attorney-Client Privilege In-house
Posted: Friday, May 6, 2016
Interestingly, many business owners are unaware of the scope of attorney-client privilege for in-house counsel. Most importantly, and often overlooked, is answering the question “who is the client?”. When an attorney represents a company or an LLC or a corporation or a partnership the individual(s) who owns, runs or makes the decisions is not the client(s). The corporate entity is the client. So it follows, that the attorney works directly on behalf of the entity and has a duty to protect the best interest of the entity, even if those interests run afoul of the decision-maker. Recently, I was reminded about how this privilege is often destroyed by the confusion of business actions by in-house counsels and business owners alike. A seminal case for first-year law students is the Upjohn Co. v. United States. In Upjohn, the company conducted an internal investigation regarding questionable payments to foreign governments. The in-house counsel for Upjohn conducted those investigations by interviewing employees. During the course of the investigation counsel took notes and wrote memorandums. The government sought to take those communications as evidence. Upjohn argued that such information was client-privilege communication and thus excluded. For a number of reasons, Upjohn is an important case in the American legal system. Upjohn teaches us, inter alia, that companies must maintain an internal process that can be invoked each instant the need for an investigation presents itself. Companies should not be scrambling at the last minute to conduct and investigation where such actions could result in the loss of the privilege. For instances, simply because an outside counsel or in-house counsel is conducting the investigation(s) will not preclude a determination that the communications fall outside the purview of privileged communications. The key elements to consider are (i) the purpose for the investigation will result in legal advice; (ii) the communications must be created and collected by an attorney; and (iii) the employees interviewed must be aware of the sensitive and confidential nature of the investigation. As federal and state courts continue to codify this important character of the American legal system, in-house counsels would be encouraged to be prepared when events such as Upjohn present themselves in the modern work environments.
In the words of the Supreme Court Justices:
The “purpose [of the attorney-client privilege] is to encourage full and frank communication between attorneys and their clients and thereby promote broader public interests in the observance of law and administration of justice. The privilege recognizes that sound legal advice or advocacy serves public ends and that such advice or advocacy depends upon the lawyer's being fully informed by the client.” Upjohn Co. v. United States, 449 U.S. 383 (1981)
NYC Pink Summons: A Criminal Matter
Posted: Monday, December 14, 2015
Many New York City businesses are unaware that they could face criminal charges for not correcting a violation. New York City has developed a complex method for ensuring building and fire code compliance among the business that operate in the boroughs.
New FCC E911 Regulation
Posted: Friday, January 30, 2015
With FCC’s ruling yesterday, regarding automatically transmitting indoor E911 callers location, carriers will have to step up and provide 911 responders with the caller’s location (horizontally and vertically) with an accuracy of 164 feet (in 40% of the case) by 2017. The remaining 60% by 2020. This is no small task. The FCC has, however, granted carrier’s the autonomy to accomplish this objective. How does this benefit property owners? Well, E911 capabilities are carried out now by way of a small antenna that is attached, typically, to a base station within a carrier’s site. If carriers currently are only required to obtain the location of an outside caller to within 300 feet, then to reduce that search area by half and add the vertical component may very well result in new hardware.
As a property owner you know what that means…rent increase? The terms of your lease agreement will dictate if you are entitled to a rent increase. When the time comes, contact me and I would be happy to investigate.
zucarolaw.com
T-Mobile Ad Campaign
Posted: Friday, February 28, 2014
Has anyone been paying attention to the GREAT new ad campaign by T-Mobile (TMUS)?...it's everywhere!! Check out Grand Central and the turnstiles.... My favorite is the commercial that features Cee Lo Green's "Forget You". I think this new ad campaign is very catchy and great for property owners. Why? Because a new ad campaign means new customers and with new customers comes the need to vamp up your network in order to keep them. What does this mean for property owners? Upgrades, swaps, substitutions, additions and new builds...otherwise known as - more money, more money, more money. If you've been contacted recently about changes to any wireless installation and you need help feel free to contact me. This is a great time for changes...
zucarolaw.com
An Alternative to Litigation
Posted: Friday, January 31, 2014
What is Collaborative Law?
Collaborative law is a form of alternative dispute resolution (ADR). It distinguishes itself from other forms of ADR by four fundamental qualities: (1) clients are represented by counsel, (2) all parties must execute a participation agreement, (3) negotiations are completed through a series of four-way meetings and (4) participation by neutral third party professional experts.
What is a Participation Agreement?
An agreement among the parties that outlines the responsibility of each party. Each party must agree to use the collaborative process including negotiating a resolution without the threat of litigation.
What happens if litigation is commenced?
The participation agreement prevents the collaborative attorneys to engage in litigation activities. Each party must retain different counsel for litigation proceedings.
What is the process?
The four-way meetings are unique to the collaborative process. They are named four-way meetings because each party is represented by an attorney and together all individuals "engage in creative problem solving aimed at reaching a negotiated agreement that meets the legitimate needs of both parties."
What is accomplished by the four-way meeting?
The four-way meeting facilitates interest-based resolution because clients have an active voice in finding a resolution that addresses their concerns. The four-way meeting identifies the underlying concerns of each party and moves to resolve those concerns while maintaining the interests of both parties in the law. A four-way meeting requires clients to agree to setting up boundaries that create an atmosphere where negotiations can be facilitated.
Are the meetings confident?
Yes, the participation agreement acknowledges that all communications during the collaborative process will remain confidential. In addition, parties agree that any concessions made during the meeting(s) are not omissions and may not be used as leverage in future litigation.
Are there benefits to using collaborative law as opposed to other forms of ADR?
The collaborative process is designed to be a very flexible process. The flexibility in scheduling the meetings promotes a less stressful process and environmental. Another benefit of collaborative law is the support system created by the participating attorneys who attempt to protect adversarial negotiations without suppressing legal entitlements. Lastly, the four-way meeting encourages neutral third party experts to present information in a non-adversarial approach, which contributes to the overall approach of the collaborative law process: addressing the legitimate interests of each party.
What professional experts contribute to the collaborative process?
Professional experts are fundamental to the collaborative process because they are able to address the emotional aspects that often frustrate the negotiation process. Often financial experts are asked to participate; they are responsible for collecting financial data and presenting options to the parties.
HELPFUL COLLABORATIVE LAW LINKS:
International Academy of Collaborative Professionals
Collaborative Lawyers, Inc.
zucarolaw.com