At the Compliance Week 2010 conference, David Seide was nice enough to give me a copy of his new book: Warning the Witness: A Guide to Internal Investigations and the Attorney-Client Privilege. David co-wrote the book with Gary Collins, Managing Director & Director of Compliance at GE Energy Financial Services. Since the DOJ, SEC and [...]
Tag Archives: attorney-client privilege
When Work Papers are not Subject to the Attorney-Client Privilege
The recent Textron decision is causing quite a kerfuffle. The court permitted Internal Revenue Service to gain access to documents created by the defense-contracting firm to determine whether the company’s calculation of its tax liabilities would pass muster during a possible IRS audit. Textron was trying to shield the documents under the Work-Product Doctrine. Work-Product [...]
In-House Counsel as Whistleblowers under SOX
Section 806 of the Sarbanes-Oxley Act (18 USC §1514A) expressly authorizes any “person” alleging discrimination based on protected conduct to file a complaint with the Secretary of Labor and, thereafter, to bring suit in an appropriate district court. There is no exception for lawyers or in-house counsel. Recently, the Ninth Circuit tackled this issue in [...]
Workplace Computer Policy and the Attorney Client Privilege
Back in April, I mentioned a New Jersey case that found e-mail, sent during work hours on a company computer, was not protected by the attorney-client privilege: Compliance Policies and Email (Stengart v. Loving Care [.pdf]) That case has now been overturned. It seems that a company’s policy on computer use may be more limited [...]
It’s Not Fraud, But it Can’t be Ignored
This session was a “dark session” so I am not sharing my notes, but will share a few themes that emerged. Most hotline complaints are for incidents that are not true compliance or ethics issues. Most studies show that HR issues tend to be almost half of the complaints. There were two camps of thoughts. [...]
Waiving the Attorney-Client Privilege By Seeking Tax Advice
The Massachusetts Supreme Judicial Court focused on the issue of whether the attorney-client privilege protected communications between an in-house corporate counsel and outside tax accountants. Commissioner of Revenue v. Comcast Corporation, et al., SJC-10209 (March 3, 2009). The general rule is that the voluntary disclosure of privileged information to a third party consultant for the [...]
Federal Law to Protect Attorney Client Privilege
Senator Arlen Specter of Pennsylvania introduced Senate Bill 445: A bill to provide appropriate protection to attorney-client privileged communications and attorney work product. The bill: “Prohibits federal prosecutors and investigators across the executive branch from requesting or conditioning charging decisions on an organization’s reasonable assertion of attorney-client privilege or decision to pay of attorneys fees [...]
Using the Attorney-Client Privilege to Protect Drafts of SEC Filings
Mintz Levin published a client alert about the Roth v. Aon case I mentioned a few days ago: Draft SEC Filings Can Be Protected From Discovery. The lawyers at Mintz have these recommendations: Disclosures that involve legal judgments, discussions of pending litigation, and business matters that the company must disclose for compliance purposes should be [...]
Draft SEC Filings Can Be Protected From Discovery
In a January 9, 2009 order, Magistrate Judge Morton Denlow of the US District Court for the Northern District of Illinois ruled that Aon was not required to produce an email seeking comments on draft disclosure language for Aon’s Form 10-K because it was protected by the attorney-client privilege. Magistrate’s Opinion and Order in Roth [...]
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