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In the many years our Firm has been in existence, I’ve witnessed some
In the many years our Firm has been in existence, I’ve witnessed some
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Attorney-Client Privilege – A Key Ingredient of Boardroom Disasters

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August 19, 2020 

With deepest thanks to our friend and colleague Adam J. Epstein

In the many years our Firm has been in existence, I’ve witnessed some disastrous boardroom legal situations.
All of them had three key ingredients in common:
  1. Email;

  2. Impaired reputations; and

  3. All of them were completely avoidable.
Email has been around for a long time, so you’d think that smart, seasoned executives wouldn’t misuse it. You’d be wrong.
Almost every CEO, CFO, and Board Member I’ve come across doesn’t know at least one of the following and has paid – or will pay – the price for it.
  • Attorney-client privilege Part 1: Copying your emails to counsel does not (read: DOES NOT) guarantee that the email you just sent to your board colleagues is privileged unless you are seeking legal advice from counsel in that email.

  • Attorney-client privilege Part 2: Even if you request legal advice in an email to a board colleague and counsel, that email also won’t be privileged if you copy a third-party. That is, it’s called “Attorney-Client Privilege,” not “Attorney-Client-Intern at your PR Firm Privilege” for a reason. For what it’s worth, I see this monthly and rarely do corporate lawyers take their clients to task for it (see next bullet).

  • You’re asking the wrong lawyer: There are loads of otherwise high-quality corporate attorneys who don’t know a lot more about attorney-client privilege than you do. Sorry, but as a former large firm lawyer and in-house counsel, I’ve seen it with my own eyes. If you’d like a lawyer to advise your management team or board about privilege – which I strongly encourage you to do – ask a litigator.
Considering that there are lawyers who don’t even understand attorney-client privilege, the best rule of thumb for board members is to use email for scheduling and logistics and utilize the proverbial "walk in the park" spoken word for… everything else. The same rule applies to texts.
If you’re unconvinced, I’ll introduce you to some board members who lost months of their lives being deposed by plaintiff’s attorneys, by the Justice Department, and/or by the SEC for sending emails and texts that simply sounded incriminating but weren’t.
If you’re still unconvinced, at least do this:
Prior to sending any substantive email or text to a board colleague, read it out loud while imagining that it’s going to be printed in a New York Times or Wall Street Journal story subsequent to your company announcing an accounting restatement.
In much the same way that people tend to buy great security systems after their houses are burglarized, it’s instructive that the Board members and senior executives I referenced, who spent some quality time with the US government, no longer send substantive texts or emails to board colleagues… ever.
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