• June 23, 2014
Flickr Creative Commons phote by Simon Scott

Flickr Creative Commons phote by Simon Scott

SCENARIO #1: Classic attorney-client privilege: Client-to-Attorney: “Attorney, if I undertake ‘that certain financial transaction,’ might that later be held to be tax fraud? What can we do to achieve our objective without getting cross-wise with the I.R.S.?”

SCENARIO #2: Classically ambiguous/uncertain privilege: Client Representative #1 to Client Representative #2 copied to In-House Attorney:”Rep. #2, let’s undertake  ‘that certain financial transaction.'”

SCENARIO #3: How about if we tweak the second communication to this: Client Representative #1 to Client Representative #2 copied to In-House Attorney:”Unless there are legal prohibitions, Rep. #2, let’s undertake ‘that certain financial transaction'”?

Photo by Jonathan Rotondo-McCord

Photo by Jonathan Rotondo-McCord

And how about drafts of all of the above three examples? Never sent. Privileged?

Scenario #2 is, of course, the weakest argument for privilege. On the other hand, isn’t it implicit in copying the in-house lawyer that the sender is seeking the in-house lawyer’s in-put? Is this inference improper because in-house lawyers sometimes function as business advisers and not legal advisers?

The safest course is to keep your client and yourself as close to that core/obvious attorney-client communication as possible.

The problem is that this ideal is foreclosed in a huge number of business decisions every day. Businesses have to move fast. Scenario #3, above, essentially “double-tracks” a business’ decision-making. With one email, an executive gives orders to a subordinate and consults with a lawyer at the same time, right?

Unless I am mistaken, Wells Fargo is a small family bank that cannot afford fancy lawyers. I am frankly surprised that Wells Fargo has an in-house lawyer or two (more?), which it apparently can afford. Surprisingly, the bank has also scraped together enough cash to hire Skadden Arps and Faegre Baker Daniels in a little tiff the bank is having with the Internal Revenue Service before U.S. District Court Judge Patrick J. Schiltz (D. Minn.).

The best lawyers that money can buy — very literally — cannot turn straw into gold. Copying in-house lawyers on drafts of memoranda, by itself, will not do.

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