When Your Lawyer Dimes You In A Wireless World: Undercover Techniques and White-Collar Investigations

AM, FM or SiriusXM?

AM, FM or SiriusXM?

It has become commonplace to note the ascendancy in white-collar investigations of techniques previously reserved for investigations of organized crime and violent, life-and-death offenses.

Three recent articles bring the issue around again.

The New York Times notes that More Federal Agencies Are Using Undercover Operations:

The federal government has significantly expanded undercover operations in recent years, with officers from at least 40 agencies posing as business people, welfare recipients, political protesters and even doctors or ministers to ferret out wrongdoing, records and interviews show. . . .

Undercover work, inherently invasive and sometimes dangerous, was once largely the domain of the F.B.I. and a few other law enforcement agencies at the federal level. But outside public view, changes in policies and tactics over the last decade have resulted in undercover teams run by agencies in virtually every corner of the federal government, according to officials, former agents and documents. . . .

Some agency officials say such operations give them a powerful new tool to gather evidence in ways that standard law enforcement methods do not offer, leading to more prosecutions. But the broadened scope of undercover work, which can target specific individuals or categories of possible suspects, also raises concerns about civil liberties abuses and entrapment of unwitting targets. It has also resulted in hidden problems, with money gone missing, investigations compromised and agents sometimes left largely on their own for months.

The Wall Street Journal recently explained how a cooperating witness who was also general counsel of a company wore a video camera while talking with the CEO: DOJ Returns to Bare-Knuckle Tactics in Bribery Case.  In particular,

U.S. Justice Department officials have said that despite the setbacks, the use of aggressive law enforcement tactics would continue. Last September, Marshall L. Miller, the deputy chief of the Justice Department’s criminal division, said wiretaps, body wires and physical surveillance “have become a staple in our white collar investigations.  I can promise you we will continue to use them.”

Finally, Compliance Week points out that co-employees can be wired up: ‘Extraordinary’ Cooperation Allows SAC Capital Defendant to Avoid Prison  .

Among other things, Freeman assisted prosecutors by recording conversations with Longueuil. This led to some extraordinary evidence for prosecutors such as a now-famous recorded statement by Longueuil about how he disposed of an incriminating “log” of insider information that was on a USB flash drive. Longueuil said he took

two pairs of pliers, and then you rip it open. Pulled the external drives apart. … Put ’em into four separate little baggies, and then at 2 a.m. … 2 a.m. on a Friday night, I put this stuff inside my black North Face … jacket, … and leave the apartment and I go on like a 20 block walk around the city … and try to find a, a garbage truck … and threw the sh*t in the back of like random garbage trucks, different garbage trucks … four different garbage trucks.

 

The good old days.

The good old days.

As a point of personal privilege, I may be excused for cheering the vigor with which federal law-enforcement treats a Joseph A. Bank-wearing white-collar employee as though she or he were an ISIS-trained Bonnie or Clyde.  Such an approach generates more work for me and my fellow white-collar defense lawyers.  There is much to be said for that prospect.

As a policy matter, however, what is the significance of the use of traditional organize crime techniques against business people?  And what is the significance of this phenomenon for those people and the businesses they try to advance?

There are doubtless multiple significant – and, as yet, unknowable – aspects to this practice. The most obvious aspect, however, is the continued erosion of the distinction between violent and nonviolent crime for purposes of investigation, indictment and sentencing.  When a prosecutor – or any lawyer – uses the same tool in Case A and Case B, by definition he or she sees those two cases to be substantively and procedurally analogous. (Otherwise, it would be a waste of time to use the same two in both cases).

In light of the power that a federal prosecutor wields, the erosion of that distinction can lead to an overbroad reading of the criminal statutes and related regulations.  Many of those statutes are already broad, indecipherable and protean by virtue of the fact that Congress drafted them.

What crime shall we define this evening?

What crime shall we define this evening?

In that regard, political bloodlust that can arise on certain topics. Child pornography is one.  Crime-in-the-suites is another.  Political bloodlust is an important aspect of our consideration of the application of organized crime investigatory techniques to business offenses.  Being “tough on crime” is rarely a political loser; being tough on sound-bites and abstractions such as “Wall Street,” “bankers” or “polluters” is equally attractive to federal legislators.

In addition, the erosion of the distinction is cheered on by the most sophisticated members of the plaintiffs’ bar as well as by single-issue activists who otherwise would have little or nothing to do with the criminal law.

So what? If a tool can investigate and prevent one type of crime, why not apply it to another type of crime? Why should a white-collar defendant get a pass from the rough-and-tumble techniques used on Banjo the Meth Dealer?  In any event, one might argue, there are safeguards already in place with regard to these techniques, without regard to the subjects of the investigation.

In other words, why is Sharman so wrapped around the axle on this question?

Unwrapping myself from the axle, I identify at least four separate problems here.

First, erosion of the distinction between street crime and “suite crime” skews the selection of cases to prosecute. In particular, questions of intent with regard to street crime, while certainly present, rarely pose the same kinds of nuances and knotty problems that the question of intent presents in white-collar cases.

Second, as illustrated by the Wall Street Journal article, erosion of the distinction implicates the attorney-client privilege:

Within the Treasury Department, undercover agents at the I.R.S., for example, appear to have far more latitude than do those at many other agencies. I.R.S. rules say that, with prior approval, “an undercover employee or cooperating private individual may pose as an attorney, physician, clergyman or member of the news media.”

An I.R.S. spokesman acknowledged that undercover investigators are allowed to pose in such roles with approval from senior officials. But the agency said in a statement that senior officials “are not aware of any investigations where special agents have ever posed as attorneys, physicians, members of the clergy or members of the press specifically to gain information from a privileged relationship.”

The agency declined to say whether I.R.S. undercover agents have posed in these roles in an effort to get information that was not considered “privileged,” meaning the type of confidential information someone shares with a lawyer or doctor.

Giving advice.

Giving advice.

Banjo the Meth Dealer may have “counselors,” but they are likely to be chosen because they are armed, inked and loyal, rather than for their legal advice.  (Of those three qualities, I claim one but decline to identify it).  When a company’s general counsel videos his CEO; when IRS agents can permissibly pose as attorneys; or when HHS OIG agents as physicians, we have entered a world that is deeply threatening to perhaps the oldest privilege in Anglo-American law.

Third, the proliferation of undercover agents and secret monitoring can result in a bitter comedy of errors. The Journal, again:

Across the federal government, undercover work has become common enough that undercover agents sometimes find themselves investigating a supposed criminal who turns out to be someone from a different agency, law enforcement officials said. In a few situations, agents have even drawn their weapons on each other before realizing that both worked for the federal government.

One is put in mind of the fine mob movie The Departed with Jack Nicholson and Leonard DiCaprio, in which Nicholson’s character (somewhat reminiscent of Whitey Bulger) has a gang in which almost everyone is working for a state or federal agency:

Fourth, sound discretion and public perceptions of justice are skewed when federal investigatory entities get at least a portion of their funding from successful undercover activity and other secret operations.  This system, even with some checks and balances, is not an incentive but, rather, an outright bounty.

Not your lawyer, hopefully.

Not your lawyer, hopefully.

You can always follow our advice about preserving the attorney-client privilege.   Barring a political and technological sea-change, however, there is no reason American companies should expect that the government’s hunger to use mob-oriented techniques in the business context will abate any time soon.


Get Out of Jail Free? Not Without The Attorney-Client Privilege

MonopolyWe have talked about attorney-client privilege, internal investigations and the GM ignition recall: Privilege, Corporate Silence and Saul Goodman,  How To Avoid Being GM’ed: The Wrongs and Rights of Clients and Lawyers and It’s Okay To Smell A Rat: Internal Investigations, Attorney-Client Privilege and the KBR Decision.

There was even a quote in Forbes.com: Of Snitches and Privileges.

And if you can’t get enough, now a short (16 minute) presentation to the Network of Trial Law Firms meeting in October:

How To Avoid Being GM’d from LFW on Vimeo.

 

 


Of Snitches and Privileges

500 Pearl Street and white-collar crime

500 Pearl Street and white-collar crime

White-collar writer Walt Pavlo of @Forbes and 500 Pearl Street quotes us this morning in his insightful @Forbes article about the attorney-client privilege.  In particular:

Federal prosecutors want to know who knew what, and when [about the GM ignition-switch problem].  However, GM’s lawyers and former lawyers are bound, like all lawyers, to uphold the attorney-client privilege.  A privilege clients enjoy with their lawyer to openly discuss matters with the assurance that their comments will not be disclosed to others.  While the media, Congress and the general public may want an individual(s) held accountable, that information should not come from GM’s lawyers who have been intrusted with confidential information.

Every defense attorney knows more than any judge, jury or prosecutor will ever know about their client.  That is a cornerstone of how our adversarial justice system works.  We have a right to an attorney and we disclose everything to that attorney trusting that we will be treated fairly by justice.  Can you imagine a trial where an attorney testifies against her own client?  Neither can I.  Corporate lawyers charged with compliance have a client also, the company.

“The purpose of the attorney-client privilege is to find out the truth, to openly discuss truth, to encourage the client to openly discuss the truth with his or or her lawyer,” according to white-collar defense attorney Jack Sharman of Lightfoot, Franklin, White LLC.   “At the back end of our justice system, at trial,” he continued, “there’s no doubt that the privilege restricts the availability of some information, some of which is important, but the privilege encourages candor at the front end.”

Having covered a few white-collar trials I can tell you that legal motions by both prosecution and defense lawyers to suppress trial evidence are as common as moths around a porch light.  In those cases,  getting to the truth at trial is a bit tougher since the incentive is to win, not necessarily to discover the truth.  So what good is truth at the front end?

“Your duty as a lawyer is to the client only, whether that is a company or an individual.” Sharman, who also has more of his own views on the GM fallout, said.  “When a lawyer tells the client that the information they are disclosing is protected, then that provides an environment, an incentive, for the person to speak the truth.”  While that “truth” may not be disclosed, it may be acted upon.  “If an employee tells a company lawyer that they have seen something inappropriate or unlawful, that does not prevent the lawyer from speaking up within the organization,”  Sharman said.  Perhaps this did or did not happen in the GM case but the internal report by Anton Valukas found no intentional cover-up at the company and the release of that information disclosed more truth about the case than had been previously disclosed.   So truth has its place and the privilege of confidentiality promotes speaking up rather than hindering it.

Read the full Forbes article here: The Role Of Lawyers In Compliance Should Not Include Snitching.


Privilege, Corporate Silence and Saul Goodman

"This attorney-client privilege issue gives me a headache."

“This whole attorney-client privilege issue gives me a headache.”

We are past Labor Day, and just as well.  Marked by the GM internal-investigation report’s criticism of some of the company’s internal lawyers, the summer was not kind to internal lawyers generally and to the attorney-client privilege particularly.  Consider, for example, the FCPA Blog‘s note on how life is tough for internal counsel.

Even more notably, there is apparently a federal criminal investigation of GM that includes the conduct of the lawyers:

Prosecutors could try to charge current and former GM lawyers and others with mail and wire fraud, the same charges Toyota faced, said a former official who worked on the Toyota case. But, they would need to have clear proof that the employees knew the cars were faulty and then deliberately withheld that, the former official said.

The investigation could be hindered by attorney-client privilege, according to legal experts, but that privilege can be waived by GM or pierced by a “crime-fraud” exception that allows disclosure of information intended to commit or cover up a crime or fraud.

The notion of privilege has taken a beating in recent weeks, as shown in a New York Times “Dealbook” article (Keeping Corporate Lawyers Silent Can Shelter Wrongdoing) by Steven Davidoff Solomon, a professor of law at the University of California, Berkeley:

[U]nless a whistle-blower steps forward, the [attorney-client privilege] principle remains strong. Despite the widespread involvement of its legal staff, General Motors successfully invoked the privilege to help keep silent on the ignition scandal it eventually faced. Even the Justice Department changed its guidelines in 2008 to remove a provision that penalized companies for invoking the privilege.

The result is that companies have a great incentive to shift anything hinting at legal trouble to their in-house counsel to ensure that it is protected from disclosure. The in-house legal department thus becomes the “cover-up and damage control” arm of the company.

. . . .

Is it time to cut back privilege or even end it to prevent companies from hiding corporate crimes?

And, here’s further commentary from Lucian E. Dervan at the White Collar Crime Prof blog, focusing on the Delaware Supreme Court opinion in Wal-Mart Stores, Inc. v. Indiana Electrical Workers Pension Trust Fund IBEW,Del. Supr., No. 614, 2013 (July 23, 2014): Privilege, Corporate Wrongdoing, and the Wal-Mart FCPA Investigation.

It’s enough to make a law-abiding internal lawyer (and even the supporting-cast outside counsel) feel like Walter White’s lawyer, Saul Goodman, in Breaking Bad:

What’s to be done?

Here are my thoughts in 140 seconds:

We have written on GM and the privilege before: How To Avoid Being GM’ed: The Wrongs and Rights of Clients and Lawyers.  In particular:

It is by no means inconceivable that bills will be introduced seeking to impose, in GM-like situations, a Sarbanes-Oxley style “reporting” requirement on internal lawyers (or outside counsel, or both), coupled with a “private attorney general” concept and whistleblower bounties.  As in the SOX, internal-investigation world, if the matter is sufficiently serious, you may need two law firms: one firm that does an investigation and prepares a report that we all know will end up in the hands of the Government, and one firm that provides advice to the company (or the board, or a committee of the board) and over whose work we hope to maintain privilege.  We have addressed internal investigations and related problems before.

Indeed, it is instructive to compare the anti-privilege sentiment in its most pitchfork version with the recent decision of the D.C. Circuit in the KBR matter, which was a resounding reaffirmation of privilege in the internal-investigation context.  As we pointed out in It’s Okay To Smell A Rat: Internal Investigations, Attorney-Client Privilege and the KBR Decision:

It is noteworthy that the D.C. Circuit clarifies the rule such that it applies in all contexts: civil, criminal and administrative.  The attorney-client privilege is, to some degree, in derogation of the search for the truth, at least in the first instance.  Yet, lawyers learn things from clients that the lawyers then do not have to reveal because we believe that, on balance, “truth” is ultimately best served in an adversarial system by a tool that encourages clients to tell their lawyers the truth.

This is an often overlooked point.  Frequently, clients do not tell lawyers the whole truth, at least the first time a discussion arises. This is particularly the case in criminal representations, but it is not uncommon in the civil arena.  Sometimes, this reticence arises from a client’s knowledge of his, her or its wrongdoing, and a concomitant desire to hide or destroy evidence.

More often, however, that initial reticence arises from much more innocuous sources: embarrassment, shame, misunderstanding, fear of losing a job or worry about how superiors or colleagues might react.  In those contexts, it is the privilege itself that is most solicitous of the truth, and allows the truth to eventually out.

In fact, if you do smell a rat, sometimes there is all the greater need to speak in confidence:

The attorney-client privilege has engendered debate ever since its first articulation, and that debate is healthy.  We should not let the urgency of news items, however, obscure the broader good that the privilege can serve.  There are many things that, in our adversarial system, the Government does not get to know about my clients.  We could change the system to a more inquisitorial structure, but such a move goes against a host of cultural and constitutional mindsets that, however imperfectly, have preserved individual liberties, property rights and the rule of law for a long time.  There are few professional prospects more pleasant for a prosecutor or a regulator than an opportunity to strip you of the ability to speak in confidence to your lawyer.

As well-stated by Saul Goodman:


It’s Okay To Smell A Rat: Internal Investigations, Attorney-Client Privilege and the KBR Decision

Skeptical of the role of lawyers.

Skeptical of the role of lawyers.

Post-recession, we are living through an era of regulators’ grimaces and prosecutors’ giddiness. Editorialists and bloggers want business scalps, especially scalps of individuals (as opposed to simple monetary fines for corporations), and most especially scalps of those in banking and finance.  In the wake of the GM report and other stories about lawyers, the role of business lawyers is as suspect in the public mind as it has been for decades.  It’s as though everybody smells a rat.

On the other hand, faced with ever-increasing and increasingly complex regulation, companies’ need to conduct self-reviews and internal investigations is unavoidable. Indeed, in many industries, the governing set of rules require companies to self-investigate and, under certain conditions, reveal those investigatory results to the Government.  This is especially the case if the company wishes to be seen as a good citizen and a cooperator. (We have discussed the ups and downs of cooperation here and here).

In this environment, it was refreshing to see the decision of the United States Court of Appeals for the District of Columbia Circuit in In re Kellogg Brown & Root, Inc.  In KBR, the D.C. Circuit considered a district court’s denial of the protection of the attorney-client privilege to a company that conducted an internal investigation.
The district court based its decision in part on the ground that the internal investigation had been “undertaken pursuant to regulatory law and corporate policy rather than for the purpose of obtaining legal advice,” attempting to distinguish the ur-case in this area, Upjohn Co. v. United States, 449 U.S. 383 (1981)

 

Business people (and internal business-lawyers) wear many hats.  Some of the hats don’t fit neatly (or comfortably).  Many activities undertaken by corporations have multiple purposes: business, political, legal and otherwise.  If this view of internal-investigations law had been allowed to stand, it would be virtually impossible for a company subject to even the most rudimentary level of regulatory oversight to maintain its attorney-client privilege.

It is worth quoting the D.C. Circuit here at some length, given the clarity and forcefulness of the holding:
KBR’s assertion of the privilege in this case is materially indistinguishable from Upjohn’s assertion of the privilege in that case. As in Upjohn, KBR initiated an internal investigation to gather facts and ensure compliance with the law after being informed of potential misconduct. And as in Upjohn, KBR’s investigation was conducted under the auspices of KBR’s in-house legal department, acting in its legal capacity. The same considerations that led the Court in Upjohn to uphold the corporation’s privilege claims apply here.
The District Court in this case initially distinguished Upjohn on a variety of grounds. But none of those purported distinctions takes this case out from under Upjohn’s umbrella.
First, the District Court stated that in Upjohn the internal investigation began after in-house counsel conferred with outside counsel, whereas here the investigation was conducted in-house without consultation with outside lawyers. But Upjohn does not hold or imply that the involvement of outside counsel is a necessary predicate for the privilege to apply. On the contrary, the general rule, which this Court has adopted, is that a lawyer’s status as in-house counsel “does not dilute the privilege.” In re Sealed Case, 737 F.2d at 99. As the Restatement’s commentary points out, “Inside legal counsel to a corporation or similar organization . . . is fully empowered to engage in privileged communications.” 1 RESTATEMENT § 72, cmt. c, at 551.
Second, the District Court noted that in Upjohn the interviews were conducted by attorneys, whereas here many of the interviews in KBR’s investigation were conducted by non-attorneys. But the investigation here was conducted at the direction of the attorneys in KBR’s Law Department. And communications made by and to non-attorneys serving as agents of attorneys in internal investigations are routinely protected by the attorney-client privilege. See FTC v. TRW, Inc., 628 F.2d 207, 212 (D.C. Cir. 1980); see also 1 PAUL R. RICE, ATTORNEY-CLIENT PRIVILEGE IN THE UNITED STATES § 7:18, at 1230-31 (2013) (“If internal investigations are conducted by agents of the client at the behest of the attorney, they are protected by the attorney-client privilege to the same extent as they would be had they been conducted by the attorney who was consulted.”). So that fact, too, is not a basis on which to distinguish Upjohn.
Third, the District Court pointed out that in Upjohn the interviewed employees were expressly informed that the purpose of the interview was to assist the company in obtaining legal advice, whereas here they were not. The District Court further stated that the confidentiality agreements signed by KBR employees did not mention that the purpose of KBR’s investigation was to obtain legal advice. Yet nothing in Upjohn requires a company to use magic words to its employees in order to gain the benefit of the privilege for an internal investigation. And in any event, here as in Upjohn employees knew that the company’s legal department was conducting an investigation of a sensitive nature and that the information they disclosed would be protected. Cf. Upjohn, 449 U.S. at 387 (Upjohn’s managers were “instructed to treat the investigation as ‘highly confidential’”). KBR employees were also told not to discuss their interviews “without the specific advance authorization of KBR General Counsel.” United States ex rel. Barko v. Halliburton Co., No. 05-cv-1276, 2014 WL 1016784, at *3 n.33 (D.D.C. Mar. 6, 2014).
In short, none of those three distinctions of Upjohn holds water as a basis for denying KBR’s privilege claim.
More broadly and more importantly, the District Court also distinguished Upjohn on the ground that KBR’s internal investigation was undertaken to comply with Department of Defense regulations that require defense contractors such as KBR to maintain compliance programs and conduct internal investigations into allegations of potential wrongdoing. The District Court therefore concluded that the purpose of KBR’s internal investigation was to comply with those regulatory requirements rather than to obtain or provide legal advice. In our view, the District Court’s analysis rested on a false dichotomy. So long as obtaining or providing legal advice was one of the significant purposes of the internal investigation, the attorney-client privilege applies, even if there were also other purposes for the investigation and even if the investigation was mandated by regulation rather than simply an exercise of company discretion.
In the context of an organization’s internal investigation, if one of the significant purposes of the internal investigation was to obtain or provide legal advice, the privilege will apply. That is true regardless of whether an internal investigation was conducted pursuant to a company compliance program required by statute or regulation, or was otherwise conducted pursuant to company policy.

 

It is noteworthy that the D.C. Circuit clarifies the rule such that it applies in all contexts: civil, criminal and administrative.  The attorney-client privilege is, to some degree, in derogation of the search for the truth, at least in the first instance.  Yet, lawyers learn things from clients that the lawyers then do not have to reveal because we believe that, on balance, “truth” is ultimately best served in an adversarial system by a tool that encourages clients to tell their lawyers the truth.

This is an often overlooked point.  Frequently, clients do not tell lawyers the whole truth, at least the first time a discussion arises. This is particularly the case in criminal representations, but it is not uncommon in the civil arena.  Sometimes, this reticence arises from a client’s knowledge of his, her or its wrongdoing, and a concomitant desire to hide or destroy evidence.

More often, however, that initial reticence arises from much more innocuous sources: embarrassment, shame, misunderstanding, fear of losing a job or worry about how superiors or colleagues might react.  In those contexts, it is the privilege itself that is most solicitous of the truth, and allows the truth to eventually out.

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.