So this intrepid blogger is on vacation and this post and perhaps one other this week will have been pre-written and scheduled for publication. So here’s hoping nothing has transpired in the world to make this seem tone-deaf.
Samson Habte, an excellent reporter with the ABA/BNA Lawyers’ Manual on Professional Conduct, was kind enough to speak with me and use a few quotes of mine in a well-done piece he wrote last week on the latest appellate court ruling evaluating the validity of the in-firm privilege. This ruling is particularly important because it comes out of the New York, which was where the original case that created the fiduciary duty exception to the privilege (outside of the context of law firms) arose which then influenced that In re Sunrise case.
I have been following this issue for many years, including dating back to when I was fortunate enough to be one of the original co-chairs of the ABA Firm Counsel Project. One of the very first roundtable sessions that now-defunct group organized focused on the state of play of the privilege for designated in-house counsel in law firms. Back then, in the late years of the first decade of the 2000s, we were still in the midst of a trend of bad rulings on the issue.
One of the topics of discussion that the reporter and I covered and that didn’t quite make it into the article is what we discussed right after my “wrongheaded” quote. I am, generally speaking, a huge fan of the Association of Corporate Counsel. That organization, the ACC, has played a very significant role in protecting the attorney-client privilege from erosion in the context of government investigations and the minefield that has been created over the years by the Department of Justice and a series of memoranda over the years that would be used as an attack on the privilege in the corporate context by laying the groundwork for a position that corporate entities in investigations needed to roll over and agree to waive the attorney-client privilege if they wanted to get any credit for cooperation.
So, to a large extent that is the context of my remarks both as to “wrongheaded”-ness and the statement about how “disappointing” it would be for the ACC to start pushing for its in-house counsel to demand in engagement agreements that law firms agree in advance to waive their right to an in-firm privilege if they want to be retained.
If the ACC follows through with that course of action, we will find ourselves in a world where one of the biggest champions of the attorney-client privilege and a stalwart defender against the powerful Justice Department over the years has now become that what it used to fight against — a powerful entity applying coercive pressure for a purpose that would only undermine the privilege.
Ironic, yes, but also a truly disappointing turn of events.