In Sports Direct International v. The Financial Reporting Council,[1] the Court confirmed that there are only two exceptions to legal privilege: the “exception of injustice” and legal repeal by express declaration or necessary implication. A request for documents from a person other than the target of an administrative inquiry by a statutory supervisory authority is not a special circumstance leading to another exception. A final consideration arises in the context of in-house counsel. Corporate communication between a corporation`s in-house counsel and the corporation`s external counsel is usually subject to privilege.16 However, if the communication is between a representative of the corporation and in-house counsel, the distinction is less clear. Because an in-house lawyer often wears multiple hats, courts find it difficult to apply privilege.17 Privilege would extend to all legal advice, but does not protect communication strictly related to business.18 Problems arise when communication includes both legal and business advice, and courts take different approaches to deciding whether or not to apply the privilege. At the very least, it appears that the court will first try to determine the role that an in-house lawyer plays within the company – that of a lawyer or that of an executive. From there, many courts will review the content of the notice, and this review will lead to different results.19 Therefore, in-house counsel should be careful to separate their legal advice from their business opinions. The court concluded that “a trustee`s communication with his lawyers is confidential. However, if a trustee, with the assistance of a lawyer, intentionally attempts to circumvent a beneficiary`s rights by concealing material information that violates its fiduciary duty, the relevant communications between the trustee and the trustee`s counsel fall under the solicitor-client privilege exemption from criminal fraud and lose their confidentiality. “Despite all its political considerations and justifications, solicitor-client privilege has a very real practical consequence: the lawyer must not be compelled and cannot voluntarily disclose matters that have been transmitted to him confidentially by the client in order to obtain a lawyer. Similarly, the client cannot be compelled to testify on matters that have been brought to the attention of the lawyer for the purpose of obtaining a lawyer.7 So, what is the privilege and when does it apply? Since the privilege is held by the client, not the lawyer, the client has the ultimate power to assert or waive it.24 If the client is a business, the privilege is generally considered a matter of control of the business.
In other words, management or the “control group,” including officers and directors, decides whether to assert or waive privilege.25 If and when control of the corporation changes, ownership of the lien is prey to successors; it does not stop at the old management.26 We begin our analysis of privilege with the obvious: before privilege exists, there must be an attorney-client relationship. As basic as this concept may seem, many clients assume that the relationship exists and mistakenly rely on the protection of privilege, but privilege does not exist until the relationship is firmly established. As a general rule, solicitor-client privilege does not apply until the parties have agreed to represent the client. Although solicitor-client privilege is firmly established as a legal doctrine that protects confidential communications between lawyers and their clients, its application is not absolute. The circumstances of the communication, its content and even the subsequent actions related to the privileged communication must be carefully weighed in order to preserve the integrity of the privilege. Nevertheless, a client cannot protect certain facts from disclosure simply by communicating them to her lawyer. For example, an estate planning lawyer who witnesses a will or trust deed may testify under the subpoena regarding the circumstances of the execution of the deed, including statements on the issue of the client`s jurisdiction at that time. The Law Review Board`s note on this paragraph clarifies that the exception is limited to communications that are “relevant to authentication” and that all other communications relating to documents remain privileged. Under this exception, a client`s statement of intent is limited to the client`s intention to execute the document and does not extend to the client`s letter of intent with respect to the disposition of the estate or the preparation of the document. With regard to the guardianship of Muller, 650 So.
2d 698 (Fla. 4th DCA 1995). Exception of common interest. Where two parties are represented by the same lawyer in the same case, neither client may invoke solicitor-client privilege against the other in a subsequent dispute if the subsequent dispute concerned the subject matter of the previous joint representation. Is it even privileged? Advice to a lawyer or from a lawyer who does not seek or give legal advice is not confidential. For example, a lawyer acting as a business agent is not eligible for solicitor-client privilege. In-house legal advisers often have business-oriented tasks, and business and legal advice are sometimes so closely linked that there may be no clear distinction. Compare Note Funding Corp. v. Bobian Invest. Co., No.
93 CIV. 7427 (DAB), 1995 WL 662402, (S.D.N.Y. Nov. 9, 1995) (Privileged, where the lawyer discussed legal, financial, business and tactical matters related to the provision of legal advice and acting as a lawyer) with Georgia-Pac. Corp. v. GAF Roofing Mfg. Corp., No. 93 CIV. 5125 (RPP), 1996 WL 29392, (N.D.N.Y. 25 Jan.
1996) (Not preferred if the Company`s lawyer provided management with legal advice that did not outweigh the commercial aspect of negotiating the agreement). Officers, directors and employees need to rely on internal consultants to understand the difference. The primary purpose of communications should be legal services so that the privilege can be enforced. Copying internal advice on communication does not make them privileged. Relying on Jet2 (and previous powers), the court also rejected this argument. Attachments must be treated separately from their parents` emails for privilege purposes, i.e. if an attachment is not privileged per se, it will not become privileged if it is sent as part of an otherwise privileged communication. Taking a broad approach, the Court also found that, in the correct interpretation of the RCF request for documents, an annex met the criteria for the request if it was attached to an email that met the criteria (whether or not it met the criteria on its own). For example, suppose Smith talks to Jones, his attorney, about a case involving a recent stock sale that is under investigation by the SEC.