"Facts can't be privileged" is how one lawyer at a place I worked with put it, regarding attempted tricks like this. Only specific discussions asking for counsel can be. So as far as I understand what could be protected in something like this training case: questions about how to make the training? Sure. The training itself? Nope.

It's hard to see the line here: if a lawyer has a 1:1 meeting with someone and tells them that using certain terms can be legally risky that's protected? If he has a group meeting with 10 execs to advise the same? One lawyer gives the same advice to 100 people, 1000 people, 10000 people what is the number of people receiving the information where verbatim the exact same conversation isn't legally protected anymore?

Are the people having direct conversations with the lawyer, where they ask for legal advice on an issue?

Then it’s covered.

If they aren’t, it’s not.

10 execs? Maybe. If they’re all involved in the same thing and all asking for advice. Seems unlikely to actually be the case though. So probably not.

100 folks listening to a presentation? Definitely not covered.

This is a weird way to view the test. The conversation is privileged if the conversation includes the provision (or seeking) of legal advice from the lawyer to (by) their client. That means that the contents of the conversation cannot be forced to be divulged; however, if the conversation is about a specific event and the legal impacts of that it doesn’t bring the facts of that event under the privilege.

“Joey said that we can kill the competition with this new feature, is that going to be a problem for us from an antitrust perspective?”

Privileged: whether or not that is going to be a problem from an antitrust perspective

Non-privileged: Joey said that we can kill the competition with this new feature

The number of people is irrelevant except as a gauge for whether or not legal advice is actually being provided. If you were to cc an entire department on an email to your counsel with the above question it wouldn’t change the analysis. Recall that in the corporate context the corporation is the client and employees are the corporation’s agents. Whether 1 or 100 employees, it’s the same corporation.

What should be the “correct” answer legally is that, if the lawyer is providing the training, it should be privileged regardless of how often it occurs or how many people are trained. The potential catch here is that you can’t use privilege to protect conversations where you’re telling people how to commit a crime, and teaching hundreds of people how not to lose antitrust buzzword bingo starts to look suspiciously like telling (or even helping) your client (the corporation) how to get away with a crime.

Haha, no.

Training is not privileged, for the same reason CC’ng an entire department will cause one to lose privilege on a conversation.

There are parties privy to the conversation (which the parties are aware are party to the conversation) that aren’t even remotely plausibly trying to get legal advice, or part of the matter being advised on in any direct way.

Trainings aren’t seeking legal advice.

Being a random employee reading email isn’t seeking legal advice.

The larger the group, the less plausible any argument gets for this reason. There is no way a lawyer is having a conversation or giving legal advice (actual advice) to 100 people at once. Even 10 is highly improbable.

If all parties to the conversation can’t even plausibly claim it’s a private conversation with their lawyer to seek legal advice, then the courts aren’t going to even think of taking a privilege claim seriously.

Even if they can it can still be pierced if there is evidence privilege was used to commit crimes, further a conspiracy, etc.

Nothing you’ve said is true categorically and many attorney hours have been spent arguing both sides of this with the outcome being anything but predictable. Again, the test is whether an attorney is communicating legal advice to the client (or such is being sought), which happens to be the corporation that acts via its employees.

“[T]raining materials prepared by in-house counsel to advise employees on the law applicable to their jobs are entitled to [attorney-client] protection because they provide legal advice.”

https://law.justia.com/cases/federal/district-courts/rhode-i...

That is a rather special edge case - it was specifically directed training that she specifically requested on specific legal issues directly applicable to her job, directly communicated to her by an attorney, clearly marked as confidential, and was nearly purely legal advice directly applicable to her job.

It wasn’t a class given widely, it wasn’t broad or generic, it wasn’t given unsolicited, etc.

Point taken though, and thanks for the cite!

No. It was training given to the HR department. Thorman received generic training regarding how to classify exempt employees from an attorney. Thorman did not request the training personally.

It was a training given widely, and online. It was arguably broad and generic. It was given unsolicited (unless you count every training an employee is told to do as unsolicited).

The fact that you misunderstand the entire factual and procedural posture of this opinion should key you in to how out of your depth you are. Every discovery fight is a special edge case, that’s why I said corporate privilege is hard in theory and even harder in practice.

I quoted the opinion. Maybe you should read it?

You incorrectly summarized the opinion based on your misunderstanding. I quoted it. You can tell because I put quotes around what I quoted.

That sounds weird because it isn’t how it works. The courts take a dim view of clients who attempt to abuse attorney-client privilege by putting all communications under it.

(A good heuristic for legal reasoning is that anything that sounds like a “one weird trick to avoid getting prosecuted” listicle item has already been picked clean by the courts.)

Client /attorney privilege doesn’t work that way. :(

But frankly, all the G stuff was with attorney guidance and well vetted. It already had what you’re trying to get to the best of the very well paid attorney’s ability.

Not only that but someone once told me to write the following before any email communications:

  "-- ATTORNEY CLIENT PRIVILEGED --"

They explained to me this allowed us to communicate without fear our discussion can be misquoted and miscategorized in the future.

So besides being in good standing with a member of their guild you also have to preface your communication with their religious texts. \s

> Not only that but someone once told me to write the following before any email communications:

That only applies when corresponding with counsel, and even there in limited circumstances (not everything can be privileged). If no attorney is addressed, it cannot be privileged.

IIRC, applying the label arbitrarily risks all correspondence being made discoverable.

This does not grant privilege to communications, just so people are aware.

To be legally binding it needs to be

    -----BEGIN ATTORNEY/CLIENT PRIVILEGED BLOCK-----

and if you never end the block everything you do is safe from now on. Judges don't want you to know this one weird trick

Never write the END block. Infinite privilege glitch!

This doesn't work if you're discussing something that's illegal.

IANAL but you don’t get attorney client privilege just by having a lawyer in the room. You actually have to be quite careful to make sure the privilege can be asserted.

I was a lawyer (still am, just don't practice anymore), and this is true.

Not only that, but if you have the wrong people in the room, then you can lose what would otherwise have been attorney-client privilege.

Not seeking legal advice, just curious. Where is the line drawn with regard to attorney-client privilege in corporation with various communication tools?

I was once told by a lawyer that emails were privileged (assuming you are communicating with your corporate counsel) but Slack messages with the same person were not. Is this just a lack of precedent with Slack?

Not a lawyer, but my understanding is:

- you have to have a reasonable expectation of privacy for the communication (yelling it across a crowded room, or using a line you know is recorded by someone else means no privilege)

- it needs to be a legitimate attempt to receive counsel from said attorney.

- the only other folks who are in the communication are also related to the matter and also clients of the attorney (or attorneys for you).

So asking your attorney ‘hey, I ran over someone - am I in trouble?’ over direct private email (or other channel) that is private? That’s privileged.

CC’ng your attorney on a thread where you’re conspiring between 3-4 other people so that ‘it’s attorney client priviledged’, but the thread isn’t about you getting legal advice about the legality of the endeavor?

Not privileged.

Think of it this way:

- the courts want to be sure that you can have direct conversations with your attorney on legal matters. That includes asking questions about the law, defending yourself, etc. and they don’t want you to have to worry about putting your foot in your mouth in the process. Because a big reason attorneys exist is because people will put their foot in their mouth constantly without help.

- the courts also want to be sure that the truth of any legal matter (with the assistance of your attorney) is found in a speedy, accurate, and expeditious manner.

So if you aren’t legitimately trying to get legal advice or help? Pound sand.

I have never used Slack and don't know anything about it, so it is hard for me to say. Are Slack messages accessible by third parties? If so, that can break A/C privilege. That is probably the main way it happens.

You still need to be careful with email too. Just because you are emailing a lawyer doesn't make it automatically privileged, though there is a much stronger presumption and argument for privilege. But, like, your plans to go to the bar with your lawyer buddy after work are not privileged, even if they are also your corporate counsel. It still needs to be related to legal advice, or in anticipation of litigation (which itself is a very large umbrella that gets you a lot of privilege for otherwise mundane corporate communications).

At any rate, a good counsellor will tell you what is safe and not safe. Be sure to take it seriously.

Slack is accessible by third parties in the same way that phone calls and emails are, namely that many employees of the companies that own the infrastructure can observe all of the communication but are told only to do so under very specific circumstances.

Is the whole “pay me a dollar retainer so you’re my client” trope an actual thing?

Not really.

One obvious reason: there are pro-bono and state-provided attorneys, but they still retain the privilege with clients that don't pay.

There's no requirement for money to change hands, and the mere act of doing so doesn't create an attorney-client relationship where one doesn't otherwise exist.

Simple answer.. only hire attorneys in all positions /s

Google has already tried something similar:

https://arstechnica.com/tech-policy/2022/03/google-routinely...

It’s much more insidious. It will necessitate a surveillance AI on all interactions to eliminate legal liability. That is absolutely inevitable.

Ohh that's a good idea.

If I'm understanding this correctly you proactively filter comms through an AI. If it detects you said something that could be interpreted a certain way the communication isn't sent and the user is told to be more careful in their phrasing?

That's pretty brilliant to be honest. Except maybe the discovery will then be on what the AI filter was instructed to prevent as if that's an admission of guilt.

There’s always a double jeopardy in legal monitoring. You have to adjudicate the risk of appearance in discovery and trial against the original risk you sought to moderate.

I absolutely think this is a good startup idea, and have been pondering building out a prototype.

I don’t love it, but in so many ways when you sit down and look at the alternative to it that isn’t tearing down or radically altering the existing legal system, it’s actually the better platform for the future.

Unfortunately there is a plethora of social control (and behavioral modification) issues intrinsic in this technology area, and like medical it requires some serious and open ethical exploration.

Thanks for the good comment.