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611:Attorney-Client Privilege & Attorney Work- Product Doctrines In ACCA’S 2003 ANNUAL MEETING CHARTING A NEW COURSE 611:Attorney-Client Privilege & Attorney Work- Product Doctrines in an In-house Setting Michael G. McCarty Vice President & General Counsel-Controls Johnson Controls, Inc. Cisselon S. Nichols Senior Litigation Counsel Shell Oil Company Laura Stein Senior Vice President & General Counsel H.J. Heinz Company This material is protected by copyright. Copyright © 2003 various authors and the Association of Corporate Counsel (ACC). Materials may not be reproduced without the consent of ACC. Reprint permission requests should be directed to James Merklinger at ACCA: 202/293-4103, ext. 326; [email protected] ACCA’s 2003 ANNUAL MEETING CHARTING A NEW COURSE Faculty Biographies Michael G. McCarty Michael G. McCarty is currently vice president & general counsel for controls–Americas of Johnson Controls, Inc. Based in Milwaukee, he oversees the legal affairs of the building controls, building automation systems, total energy management, facilities management, federal sector, and security businesses of the controls group of Johnson Controls, Inc. Prior to assuming his current position, Mr. McCarty was a partner with Foley & Lardner, practicing commercial litigation. Mr. McCarty has given presentations on attorney client privilege issues for the State Bar of Wisconsin, the State Bar of California, ACCA’s Wisconsin Chapter, and other organizations. He graduated from Syracuse University College of Law. He is admitted in the U.S. Courts of Appeal for the Fifth, Seventh and Ninth Circuits and the United States Supreme Court. Cisselon S. Nichols Cisselon S. Nichols currently serves as senior litigation counsel for Shell Oil Company in Houston, where she handles environmental litigation. Prior to joining Shell, she served as senior counsel at ConocoPhillips, formerly Conoco Inc., where she managed mass toxic tort litigation matters. Ms. Nichols also previously served in a variety of governmental positions in the U.S. Virgin Islands including counsel to the attorney general and assistant attorney general for environmental enforcement. Prior to her work in the Virgin Islands, Ms. Nichols clerked for U.S. Magistrate Judge Harry W. McKee in the Eastern District of Texas. She also worked at the U.S. Department of Justice in the Attorney General’s Honors Program as a trial attorney in the environment and natural resources division and as an assistant United States attorney in the Eastern District of Texas where she prosecuted environmental crimes. Ms. Nichols obtained her BA and BS degrees from the University of Texas at Austin. She also received her law degree from the University of Texas. Laura Stein Laura Stein is senior vice president and general counsel of H. J. Heinz Company, a global branded food products company with sales approaching $10 billion. She is responsible for Heinz’s global legal, compliance, and corporate secretary matters. As a member of the Heinz management committee, Ms. Stein is involved in increasing shareholder value, setting strategic direction and corporate policies, and overseeing Heinz’s global business operations. She is involved in shaping the corporate governance policies and practices relating to the H. J. Heinz Company board of directors and board committees. Ms. Stein is a director of the H. J. Heinz Company Foundation and the Heinz political action committee and is a member of the Heinz ethics and compliance, crisis management, investment management, and disclosure policy committees. Ms. Stein is president of Heinz’s Global Organization for the Advancement of Leadership for Women. This material is protected by copyright. Copyright © 2003 various authors and the Association of Corporate Counsel (ACC). 2 ACCA’s 2003 ANNUAL MEETING CHARTING A NEW COURSE Previously, Ms. Stein was assistant general counsel - regulatory affairs with The Clorox Company. At Clorox, she was a member of the legal management committee, glad management committee, worldwide leadership team, 2005 strategy team, and the executive women’s group. She was also the legal liaison to the Clorox Latin American management committee, and participated in an executive development program. Prior to joining Clorox, she was a lawyer in the business department of Morrison & Foerster in San Francisco, involved in mergers and acquisitions, securities and general corporate law, financial business transactions, international business transactions, and nonprofit corporate law. Ms. Stein is a member of the board of directors of Nash Finch Company and is the chairperson of the commission on domestic violence of the ABA. She is a member of the board of directors of ACCA. She was previously a director of the Center for Human Rights of the ABA, the vice chair of the board of directors of the East Bay Community Law Center, and on the board of directors of Global Education Partnership. Ms. Stein was elected to the American Law Institute, was named one of Pennsylvania’s “50 Best Women in Business” by the Governor of Pennsylvania, and has attended Fortune Magazine’s Most Powerful Women in Business Conferences. Ms. Stein is a member of the corporate counsel committee of the business law section of the ABA, the general counsel roundtable of the Corporate Executive Board, the general counsel committee of the National Center for State Courts, the law council I of MAPI, the legal committee of the Grocery Manufacturers of America, the California State Bar Association, the American Society of Corporate Secretaries, the Pittsburgh General Counsel Group, the Pittsburgh Pro Bono Partnership, and the Duquesne Club. Ms. Stein received her undergraduate degree from Dartmouth College, Phi Beta Kappa, and her JD from Harvard Law School. She also has an MA from Dartmouth College. This material is protected by copyright. Copyright © 2003 various authors and the Association of Corporate Counsel (ACC). 3 ACCA’s 2003 ANNUAL MEETING CHARTING A NEW COURSE THE ATTORNEY-CLIENT AND WORK PRODUCT PRIVILEGES IN AN IN-HOUSE SETTING MICHAEL G. MCCARTY General Counsel – Controls Americas Johnson Controls, Inc. I. PRELIMINARY ISSUE - WHAT LAW GOVERNS? A. The Attorney Client Privilege is a rule of Evidence. Thus, each state’s evidence code and case law governs these issues. B. Federal Court - Fed. R. Evid. 501 Except as otherwise required by the Constitution of the United States or provided by Act of Congress or in rules prescribed by the Supreme Court pursuant to statutory authority, the privilege of a witness, person, government, State, or political subdivision thereof shall be governed by the principles of the common law as they may be interpreted by the courts of the United States in the light of reason and experience. However, in civil actions and proceedings with respect to an element of a claim or defense as to which State law supplies the rule of decision, the privilege of a witness, person, government, State, or political subdivision thereof shall be determined in accordance with State law. (Emphasis added) C. Conflict of Law Questions Thus, in Federal Court, the law of privilege will depend on whether the case is based on federal question or diversity jurisdiction. See Colton v. U.S. , 306 F.2d. 633 (2d Cir. 1962) Arcuri v. Trump Taj Mahal Associates, 154 F.R.D. 97, 100-101 (D.N.J. 1994). See also U.S. v. Moore, 970 F.2d 48 (5th Cir. 1992)(Federal Common Law, not state physician/patient privilege, applies in I.R.S. enforcement proceeding). II. THE ELEMENTS OF THE ATTORNEY-CLIENT PRIVILEGE A. Policy Justifications - and Limitations The purpose behind the attorney-client privilege is to foster free and open communication between the client and the attorney with the hopes that full disclosure of information will ultimately benefit the judicial system as well as This material is protected by copyright. Copyright © 2003 various authors and the Association of Corporate Counsel (ACC). 4 ACCA’s 2003 ANNUAL MEETING CHARTING A NEW COURSE society in general. It must always be remembered, however, that the privilege is an impediment to a full search for the truth and, as such, is narrowly construed to foster its purpose. B. Restatement of The Law Third, The Law Governing Lawyers § 68 (2000). 1. A communication; (§ 69) 2. made between privileged persons; (§ 70) 3. in confidence; (§ 71) 4. for the purpose of seeking, obtaining, or providing legal assistance for the client (§ 72) 5. In addition, the privilege must be affirmatively raised (§ 86) and not waived (§ 78 – 80). III. APPLICATION OF THE ELEMENTS A. “Made Between Privileged Persons” 1. The attorney acting as attorney a. privilege applies to “in-house” counsel as well as “outside” counsel United States v. United Shoe Mach. Corp., 89 F. Supp. 357, 360 (D. Mass. 1950) b. The attorney must be acting as an attorney in connection with the communication. 1) “business advice” or “technical advice” not privileged: Burlington Corp. v. Exxon Industries, 65 F.R.D. 26, 39 (D. Md. 1974) United States v. International Business Machs. Corp., 66 F.R.D. 206, 212-13 (S.D.N.Y. 1974) 2) “business negotiation” not privileged United States v. Wilson, 798 F.2d 509, 513 (1st Cir. 1986) 3) Special concern for “in-house” counsel who also serve corporate functions This material is protected by copyright. Copyright © 2003 various authors and the Association of Corporate Counsel (ACC). 5 ACCA’s 2003 ANNUAL MEETING CHARTING A NEW COURSE In re Sealed Case, 737 F.2d 94, 99 (D.C. Cir. 1984) (in-house counsel who also served as company v.p. had burden of making “clear showing” he acted as an attorney with regard to matter at issue) Cooper-Rutter Assoc., Inc. v. Anchor Nat’l Life Ins. Co., 563 N.Y.S. 2d 491 (App. Div. 1990)(memos written by in-house counsel who was also corporate secretary ordered to be produced) Hardy v. New York News, Inc., 114 F.R.D. 633 643-44 (S.D.N.Y. 1987) (when questions of law and business policy are mixed the business aspects of the discussion are NOT protected.
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