Employees and Attorney Client Privilege

What Happens When the Boss Hires Your Lawyer?

Sometimes a corporation will hire a lawyer for an employee, officer of the corporation, or a board member. Historically, the corporation or your boss might have been motivated to save the company or himself by disclosing or trying to force disclosure of information that had been shared with corporate attorneys, attorneys representing employees or officers of the corporation that may have been protected by the attorney client privilege. The feds used to have a policy that considered companies as “not cooperating” if they paid attorney fees for employees or failed to share attorney-client work product and confidences with prosecutors. Lack of cooperation can add or subtract from a sentence or penalty in the event of a conviction.

The Department of Justice DOJ has discontinued a policy that may have encouraged the company to sell out its employees. The DOJ guidelines are intended to protect a company’s attorney-client privilege, work product, and employees’ right to counsel. Therefore, assuming the information shared with the lawyer was privileged, the company will not be penalized in plea negotiations or sentencing for helping protect the rights of its officers or employees.

Can the Boss Force a Lawyer to Discuss Attorney Client Privileged Information with the Cops?

No. Your boss cannot force a lawyer to discuss Attorney Client Privileged Information with the cops. Here is a summary of the Department of Justice DOJ Policy on Attorney Client Privilege

• Credit for cooperation will depend on the disclosure of relevant facts, not on the corporation’s waiver of attorney-client privileges;
• A corporation’s payment of attorneys’ fees for employees is not a factor in determining cooperation;
• A corporation’s participation in a joint defense agreement with employees does not preclude credit for cooperation;
• Whether the corporation has sanctioned or retained culpable employees is not a factor in determining credit for cooperation;

Can Your Lawyer Discuss Attorney Client Information with the Cops, if You are Fired?

No. “Yet the privilege’s many nuances easily result in loss of the privilege when the attorney does not pay close attention to the details of the communication.” See Link to American Bar Business Law Review of the Attorney Client Privilege below.  Historically, it has been the DOJ’s policy to give credit to a corporation in exchange for its cooperation, but what exactly a corporation must do to earn such credit? According to Deputy Attorney General Mark Filip, the new guidelines reflect the DOJ’s “commitment to two goals: safeguarding the attorney-client privilege and preserving the DOJ’s ability to investigate corporate wrongdoing effectively.”

Important Note: The guidelines do not apply to investigations by other federal agencies such as the Securities and Exchange Commission and the Environmental Protection Agency.

What Happens When the Boss Gets a Target Letter?

Your boss gets a letter that begins like this. Dear Target: This letter is to advise you that you are now a target of a Federal Grand Jury investigation in this District involving your activities . . . . you can review a sample target letter here. A letter like this should be taken very seriously.

Tampa Federal Defense Attorney – Sample Target Letter

See also:

DOJ revises how it deals with corporate probes

floridabar.org

Maintaining the Privilege: A Refresher on Important Aspects of the Attorney-Client Privilege

americanbar.org/publications/