Board Room, Bored Room and the Existential Horror of Styrofoam Coffee Cups: 13 Ways to Avoid Waiving Privilege in Corporate Meetings

And, how are we supposed to have a meeting without Wi-Fi?

And, how are we supposed to have a meeting without Wi-Fi?

This discussion by Mark Herrmann at Above The Law — Law Firm Meetings Vs. Corporate Meetings, Meetings, Meeting, And Meetings! — is a wonderful set-piece about meetings.  Read the whole article, but here he compares law-firm meetings  corporate meetings:

Corporations are different. They’re publicly traded. They’re often much larger than law firms. They’re divided into operational divisions with pyramidal structures, with many people reporting to fewer people who report to fewer people still who report to someone near the top. Put that all together, and it means meetings. And meetings. And meetings. And meetings. In fact, to my eye, there are four types of corporate meetings . . . .

First, there are meetings that are necessary to move the ball. These are the types of meetings that you experience at law firms: Several people are undertaking different tasks. The tasks must be coordinated, and you need a unifying mind at the top to know what’s happening. So you meet.

Or you’re struggling with a tough issue that you can’t resolve alone. You need help, so you meet.

Thus, the first type of meeting is one that’s substantively necessary: You meet to move the ball.

But we set meetings at corporations for many other reasons, too.

Because of the frequency of internal corporate meetings, and the manner in which they are conducted, they are prime pathways to waive the company’s privilege.  How can we minimize the likelihood of doing so?

The modernist American poet Wallace Stevens (1879-1955) wrote Thirteen Ways of Looking at a Blackbird.  You are an internal corporate lawyer.  Think of this article as “Thirteen Ways Of Looking At An Outlook Invitation.”

Skipping email.

Skipping email.

1.           Judges and juries think you’re a gangster.  Realize that judges and juries, the ultimate consumers of lost privilege, think that internal counsel are some kind of consigliere — at  best.  You are perceived (wrongly, usually) as a businessperson worried about budgets or looking good for the boss or covering up problems, rather than as lawyer with independent judgment, ethical constraints and multiple clients rather.  This is why, for example, agents and prosecutors do not especially like you, either, and may ask that you not attend employee interviews.  The privilege caselaw about internal lawyers is often not great, either.

2.           Pretend that you are Tom Hagen.   In the movies The Godfather and The Godfather Part II, the consigliere to Don Vito Corleone (Marlon Brando), and later Don Michael Corleone (Al Pacino), is Tom Hagen (Robert Duvall). 

A supporting role.

A supporting role.

Fantasize that you actually are a consigliere, which has the two-fold benefit of (a) driving other people crazy and (b) preserving privilege.  Follow steps (3) to (13) below.

3.           Face-to-face.  Among mob movies, The Godfather franchise still reigns supreme.  In The Godfather, does anybody talk on the phone?  Not if they can help it: somebody’s always listening.  You should assume the same.

Face-to-face, outside, with a cement mixer in the background is best for avoiding audio surveillance. 

"Don't worry about anything, Frankie Five Angels." "Thanks Tom. Thanks." ―Frank Pentangeli and Tom Hagen

“Don’t worry about anything, Frankie Five Angels.”
“Thanks, Tom. Thanks.” ―Frank Pentangeli and Tom Hagen

You’ve seen it in the movies.  Face-to-face is best for preserving privilege, too: no forwarded emails or unintended texts to worry about.  (f you want to unnerve others in the meeting, you can pay your drug-addled nephew, the one at the construction company, fifty dollars to drive a cement mixer back and forth outside).

"I hate taking work calls in the shower."

“I hate taking work calls in the shower.”

4.           Phone over email.  If it’s raining outside, or if cement mixers are too grimy, use the phone rather than email or text.

5.           Maximize formality to maximize privilege.  Here in the 21st century, business is supposedly informal, collaborative and horizontal rather than hierarchical.  (Supposedly.  Mainly, in many informal, collaborative and horizontal offices I see guys who would barely look good in suit-and-tie wearing clothes designed for junior-high volleyball coaches).  Privilege, on the other hand, is formal: privilege law draws sharp distinctions based upon need-to-know; control groups versus the controlled; and circles within circles.  If an activity actually helps the business, the product or the service, or is useful to and used by lots of people across the organization, it’s probably not privileged.

6.           If it was good enough for the Dead Sea scrolls, it’s good enough for you.  If there are to be agendas at the meeting, print them out on paper and then, after the meeting, collect them back up.

A blank slate.

A blank slate.

7.           Put a bullet in bullet-lists.  A PowerPoint presentation is already sufficiently soul-eating.  (See Edward Tufte’s work on this subject).  Do not compound the problem by allowing meeting attendees to tote the presentation around: do not print out the PowerPoint slides and do not distribute them. 

8.           They no longer make carbon paper.  Ban “cc’s,” an abbreviation for “carbon copy.”  (Remember mimeograph machines, though?  Nothing made you think “second grade” more than the smell of mimeograph fluid).  Some employees seem to think that the more they “cc,” the more they communicate (or the more CYA they have).  In general, the longer the “cc” list, the more likely that privilege will be lost, if indeed the email was privileged in the first place.

9.           “Re” is a Latin prefix, not a meaningful communication.  Do not re-use the same subject line in emails.  Despite advances in technology, recycled “re” lines make pulling out the privileged thread more difficult and encourage thoughtless, too-rapid correspondence.

Your choice for illegibility.

Your choice for illegibility.

10.        Crimson Security.  If you must distribute documents with important factual and legal findings, print them on red paper.  When scanned or photocopied, red paper turns black.  You do not waive anything because no one can read anything.

11.        Technological omerta.  Look into “Silent Circle” or similar tools to minimize the permanence of emails.

12.        Upjohn Massacres.  Speak the language of Upjohn, frequently, meetings.  It sobers people up.  Seriously: people need to remember that the substance of the meeting is privileged and that the privilege is held by the company.

13.        BYOD Is More Of A Menace to Privilege Than BYOB.  Bug your IT people about making and enforcing a coherent policy on the phenomenon of “bring your own device” to work.  (BYOD is not going away.  Most employees would much rather bring their own device to work than bring their own children to work).

There's work in here, somewhere.

There’s work in here, somewhere.

Good luck.



The Rap Sheet, True Crime and White Collar Wire

The Rap Sheet

The Rap Sheet

We are honored to be added as a “True Crime” blog by The Rap Sheet, one of the world’s leading crime-fiction blogs:

Since it spun off from January Magazine to become a separate blog in May 2006, The Rap Sheet has earned its reputation as an essential resource for readers seeking information about what’s new and interesting in the world of crime fiction. It covers crime, mystery, and thriller fiction both recent and vintage, appearing in all media–print as well as broadcast.

Edited and written mostly by J. Kingston Pierce, the site has been nominated twice for Anthony Awards, and in 2009 it won the Spinetingler Award for Special Services to the Industry. Remarking on the blog’s value, novelist and editor Ed Gorman wrote in Ellery Queen Mystery Magazine: “Part pure journalism, part critique, and part just plain fun, The Rap Sheet is a tribute to the intelligence and wit of a single person. Pierce gives opinionating a good name.” In a post of her own highlighting blogs that provide “good crime fiction recommendations,” critic Sarah Weinman described The Rap Sheet as “one of the oldest … and still one of the best …”

The Rap Sheet currently receives 1,500 to 2,500 hits each day, ranking it among the most consistently popular blogs of its kind.

Great stuff.




Dewey Need A Lawyer? Do You?

Walt Pavlo's blog "500 Pearl Street"

Walt Pavlo’s blog “500 Pearl Street”

Here’s the usual well-chosen roundup of white-collar stories from Walt Pavlo at 500 Pearl Street.  In particular, note the Dewey/Zachary Warren discussions and how retaining a white-collar lawyer might or might not have helped Warren.

(photo by Scott Eells/Bloomberg)

(photo by Scott Eells/Bloomberg)


Come Fly With Me: Airplane Drinks, Beer For Breakfast, Cocktail Science and Socrates

Our notes on cocktails this Friday.

"And then he said, 'Business class, my ass.'"

“And then he said, ‘Business class, my ass.'”

From Gastronomista, an Avua Cachaca Pam Am cocktail:

I was recently introduced to Avuá Cachaça, a relatively new cachaça on the market.  After a boozy night out on the town touring some of New York City’s best bars, including Sasha Petrosky’s famed Milk & Honey, I’m convinced that this is a bottle I want to keep in my library of libations.



Please place your seats and trays in their upright and locked position.

Coffee?  Tea?  Something stronger?

Coffee? Tea? Something stronger?


Come Fly With Me (1958)

Come Fly With Me (1958)

Indeed, on YouTube, “Come Fly With Me” by Frank Sinatra.





In a frosty mug, please.

In a frosty mug, please.






From Saveur, for those who like it dark and early in the day, here’s The Brew: Founder’s Kentucky Breakfast Stout:

One of the biggest deals for craft beer enthusiasts is the annual spring release of Founders Brewing Company’s “highly acclaimed” KBS, or Kentucky Breakfast Stout. The outrageous 11.2% bourbon barrel-aged beer attracts fans from all over the country to Founders’ home base of Grand Rapids, Michigan, where they line up for hours on end for short pours of the inky, robust brew. The beer’s release has become so popular that Founders issues tickets for the event, and this year, rather than pour it just at the brewery’s taproom, they decided to celebrate with a week-long party throughout greater Grand Rapids.

Gabriella Mlynarczyk’s Smoky Brown-Butter Old-Fashioned, Jamie Boudreau’s Chocolate Milk and Dave Arnold’s Italiano Stalliano.  Credit Sarah Anne Ward for The New York Times. Food stylist: Suzanne Lenzer. Prop stylist: Paola Andrea.

Gabriella Mlynarczyk’s Smoky Brown-Butter Old-Fashioned, Jamie Boudreau’s Chocolate Milk and Dave Arnold’s Italiano Stalliano.
Credit Sarah Anne Ward for The New York Times. Food stylist: Suzanne Lenzer. Prop stylist: Paola Andrea.

From the New York Times, we have Cocktail Science, Simplified.  Booze with cookies, though, is not to my taste.


"This gin is awfully bitter."

“This gin is awfully bitter.”

Now, this is more like it.  From the Huffington Post and, here are 12 cocktails to drink before you die and 5 essential spring gin cocktails, including the Ramos gin fizz.