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Does Membership Have Its Privileges? As a general proposition, the attorney-client privilege applies equally to individuals and corporations. Theoretically, no distinction should be made between in-house and outside counsel for purposes of applying the privilege. Indeed, courts have frequently made this point clear.1 As a practical matter, however, in-house counsel often are held to higher standards with respect to the attorney-client privilege, at least in part due to the fact that they often perform non-legal business functions within their organizations; those may include leading investigations or fact-gathering efforts regarding issues that may arise in future litigation, regulatory compliance issues, and other matters regarding the functioning of the entity. When this is the case, a corporation’s ability to claim the attorney-client privilege with respect to communications made with these lawyers is complicated significantly. That an in-house attorney is copied on correspondence, or has limited involvement in a matter, is likely insufficient – in and of itself – to give rise to the privilege. These issues turn, of course, on both sides of the question, requiring satisfaction of both the “attorney” and “client” requirements in the context of the matter. In addition to these issues, this article will highlight privilege issues associated with shareholder derivative litigation, as well as the recent efforts by federal prosecutors to strong arm general counsel into “voluntary” waiver of otherwise privileged information in exchange for non-prosecution or leniency. This article concludes with a discussion of the possibility of inadvertent waiver of a corporation’s attorney-client privilege when corporations designate an in-house attorney as a corporate representative deponent.
“Attorney” and “Client” Components The Client With a corporate client, the attorney-client privilege belongs to the corporation.2 A corporation or any other business entity, however, can act only through those people — its officers, directors, principals, partners, employees — charged with the conduct of the entity’s business. Before 1998, the “control group” test of Rule 503 of the Texas Rules of Evidence mandated that only employees with authority to obtain legal services or to act on that legal advice could have conversations and communications protected by the attorney-client privilege.3 Under that standard, an in-house attorney could ask an employee to investigate and report on a matter, but the communications contained in that investigation and report would not be privileged even if the report noted that the investigation was conducted at the request of counsel if there was no indication that the employee writing the report had the authority to seek or act on legal advice. This result was problematic, especially for large organizations that regularly required the means to obtain meaningful legal advice without waiving its privileges.4 Effective March 1, 1998, Texas Rule of Evidence 503 was amended to adopt the “subject matter” test for an entity’s assertion of the privilege. Under the subject matter test, an employee’s communication is deemed to be that of the client if:
Now, an employee is functionally the client if she (a) has the authority to obtain professional legal services or to act on the rendered advice,6 or (b) makes or receives a confidential communication at the direction of the corporation and while acting in the scope of the client’s employment.7
The Attorney The attorney is the secondcomponent of the attorney-client privilege. If an in-house counsel is acting in her capacity as an attorney, the attorney-client privilege applies. Where, however, counsel is acting as a business advisor or has only limited involvement, the privilege does not apply.
1. Acting as an Attorney In-house attorneys, as opposed to their counterparts in law firms, often handle mixed business and legal functions. Whether these individuals are serving as corporate secretaries, vice-presidents, board members, or other capacities, they often work in capacities separate from their legal functions. Unfortunately, having attorneys serve in these dual capacities can have serious consequences for the application of the attorney-client privilege. This issue has not been litigated frequently in Texas, but it has been the subject of many opinions in other jurisdictions. “In order for the [attorney-client] privilege to apply, the attorney receiving a communication must be acting as an attorney and not simply as a business advisor.”8 “Indeed, the client’s confidential communication must be for the primary purpose of soliciting legal, rather than business, advice.”9 While business considerations included in the rendering of legal advice is insufficient to impair the attorney-client privilege, the mere rendering of legal advice incidental to communications related to business issues may not be privileged.10 Obviously, it can be difficult to determine whether the primary purpose of the lawyer’s input was to provide legal advice. In North Carolina Electric Membership Corp. v. Carolina Power & Light Co.,11 the court addressed whether the attorney-client privilege applied to various categories of documents “drafted by management [and] alleged to contain not only confidential communications but also an implied request for legal advice.”12 In analyzing the applicability of the attorney-client privilege to each category of documents, the court considered several factors. While noting that no single factor would be dispositive of privilege in every case, the court stated that the “combination of several factors with respect to a particular document [would be] significant,” including:
In addition to identifying these factors, the court in North Carolina Electric noted that the party asserting privilege has the burden of showing that the privilege applies14 (as is the case with privileges under Texas law15). Thus, the party claiming privilege must demonstrate that the advice was given “in a legal, rather than business, capacity.”16 The North Carolina Electric court ultimately concluded that the attorney-client privilege did not apply to documents that dealt merely with lobbying efforts, communications from in-house counsel to management that did not reveal confidential communications, legal memoranda that contained no factual application to the client’s case, and the like. Similarly, in Teltron, Inc. v. Alexander,17 the court refused to find an attorney-client privilege where the communications in question dealt with business matters in which counsel was acting in a managerial role, rather than in a legal capacity. Specifically, Teltron involved the assertion of attorney-client privilege by Harold A. Siegel, Jr. who once served as the company’s outside counsel, then executive vice-president and in-house counsel, and ultimately president.18 In response to certain questions posed during Mr. Siegel’s deposition, the company invoked the attorney-client privilege, which the other party moved to strike.19 In evaluating the issue, the court noted:
Because the court ultimately concluded that the questions at issue involved “information regarding ordinary business activities” and further concluded that the company had failed to present evidence sufficient to “demonstrate that the information which [the company] seeks to protect was given in Mr. Siegel’s professional legal capacity,” the court struck the company’s privilege objections.21 In so holding, the court advised that corporations seeking to invoke the attorney-client privilege with respect to “communications made by an attorney who serves the corporation in a legal and business capacity . . . [must be able to] clearly demonstrate that the advice to be protected was given in a professional legal capacity.”22 This showing, the court noted, is “necessary to prevent corporations from shielding their business transactions from discovery simply by funneling their communications through a licensed attorney.”23 Therefore, it is imperative that corporations and their in-house attorneys ensure that they are able to conclusively demonstrate that any internal communications they intend to be insulated by the attorney-client privilege reflect that such communications were made for the express purpose of obtaining legal advice from their in-house attorneys. This is especially true where the communications may be construed to contain both legal and business advices. Without taking protective measures, such as marking the communications as confidential and making them subject to express requests for legal advice, a corporation’s ability to claim privilege may be compromised. This is particularly the case in instances where in-house attorneys have only limited involvement in the legal matters giving rise to the privilege claim.
2. Limited Involvement of In-House Counsel On occasion, privilege issues arise in connection with correspondence that is copied to an in-house attorney, but may appear to be merely “passing through” counsel, either in his legal or managerial capacity, rather than being presented for the purpose of obtaining legal advice. Where counsel’s capacity in receiving such correspondence is unclear, and where it is unclear whether the communication is for the purpose of obtaining legal advice, successfully invoking the privilege may be difficult. Similarly, merely copying counsel on correspondence will not create the privilege. In Hardy v. New York News, Inc.,24 the defendant invoked the attorney-client privilege for certain documents prepared with its affirmative action plan. The company based its privilege claim in part on the fact that it sent the documents in question to counsel, who also held the position of Director of Employee or Labor Relations.25 The court rejected the company’s claim of privilege on this basis because “[a]lthough some of the documents [were] addressed to [counsel], there [was] nothing to indicate that [he] requested or received any of the documents at issue, or the information contained in them, in the capacity of a legal advisor and solely for the purpose of rendering legal advice to the corporation.”26 The court also noted that counsel was not addressed as “counsel” in the relevant communications and was not identified as counsel in any of the documents; moreover, the documents were not marked “confidential” or “privileged,” and were not segregated from other personnel documents.27 Rather, the court found that the defendant had “failed to establish that [counsel] was acting as a legal advisor to the corporation as opposed to Director of Employee or Labor Relations.”28 “[I]n a situation where the author or recipient of allegedly privileged documents functions as a corporate manager as well as an attorney, efforts must include clear designation of those communications sent or received in his capacity as a legal advisor.”29 Merely forwarding communications to a licensed attorney, without more, will not create the attorney-client privilege. Indeed, such activity may be construed as simply circulating business information to a professional serving in a business capacity, regardless of that professional’s status as an attorney. In United States Postal Service v. Phelps Dodge Refining Corp.,30 the court addressed whether communications between company employees, where attorneys had been copied, were protected by the attorney-client privilege. In finding no privilege, the court noted that “the mere fact that a communication is made directly to an attorney, or an attorney is copied on a memorandum, does not mean that the communication is necessarily privileged.”31 The court reiterated that the attorney-client privilege applies only where the communications are “intended to be confidential and a dominant purpose of the communication [is] to obtain legal advice.”32 The court found no privilege because the communications were “written for some other purpose than to seek legal advice and would have been prepared whether or not the attorney was sent a copy.”33 “A corporation cannot be permitted to insulate its files from discovery simply by sending a ‘cc’ to in-house counsel.”34 Other courts have reached similar results. For example, in In re Central Gulf Lines, the court recognized that:
Similarly, the Texas Supreme Court repeatedly has enforced the requirement contained in Rule 503(b)(1) of the Texas Rules of Evidence that such communications must be “confidential” to constitute an attorney-client privileged communication.36 For example, in Giffin v. Smith,37 the corporation’s general counsel and vice president sought to avoid deposition questions about his communications regarding the opposing party’s alleged receipt of kickbacks that was the subject of this slander action. Despite his position and role in the corporate investigation, the Texas Supreme Court held that the general counsel’s communications were not protected by the attorney-client privilege because there was no evidence that the communication was confidential.38 Because courts consistently hold in-house counsel to a higher standard than outside counsel, corporate legal departments must take care in preserving the privilege. Indeed, to ensure that a corporation’s attorney-client privilege is upheld, in-house counsel must endeavor to have each protected communication reflect: (1) that the attorneys are consulted in their legal capacity and not solely as a business advisor; (2) that the communications are made for the primary purpose of obtaining legal advice; and (3) that the communication is confidential and protected by the attorney-client privilege. Absent these efforts, a corporate client may be unable to carry their burden of showing that disputed communications are indeed privileged.
Court-Ordered Disclosures in Shareholder Derivative Litigation The fact that the attorney-client privilege belongs to the client is particularly important in the context of shareholder derivative actions. By their very nature, shareholder derivative suits question management’s decisions.39 This has led some courts, including the Fifth Circuit, to allow shareholders to show cause why the attorney-client privilege (properly attached and protected) should not apply to communications with the corporation’s in-house counsel.40 For example, in Garner v. Wolfinsbarger,41 the Fifth Circuit explained that “[m]anagement judgment must stand on its merits, not behind an ironclad veil of secrecy which under all circumstances preserves it from being questioned by those for whom it is, at least in part, exercised.” In fact, in the Garner case, the Fifth Circuit allowed a shareholder to show cause why the privilege should not apply to his lawsuit.42 Applying this rationale to obtain information concerning communications of in-house counsel has been met with mixed reaction among jurisdictions.43 Courts in some jurisdictions have restricted the use of this rationale to shareholder derivative actions.44 Others have applied it to analogous situations, such as in union actions and shareholder lawsuits seeking personal recovery.45 Still others have questioned its continued viability.46 With these variations among jurisdictions, otherwise appropriately protected and preserved attorney-client privileged communications involving in-house counsel could be attacked in these types of matters.
“Voluntary” Waiver: Prosecutorial Coercion to Disclose Internal Investigations The current controversy surrounding prosecutorial tactics and their effects on privilege began on January 20, 2003, when Deputy Attorney General Larry D. Thompson first articulated a policy to federal prosecutors that made a corporation’s voluntary waiver of attorney-client privilege and work-product a factor in the decision whether to prosecute that corporation and in sentencing recommendations.47 Now known as the “Thompson Memo,” it sent the clear message to corporate America and, in particular, general counsel, that if they wanted to demonstrate their cooperation with a federal investigation, they must “voluntarily” waive the attorney-client privilege. This decision, of course, came on the heels of the litany of corporate scandals, some of which involved Houston companies, and the general sense that greater scrutiny should be placed on issues of corporate mismanagement and fraud, criminal and otherwise. With the advent of greater public scrutiny and legislation expanding the bases for liability and criminal prosecution, as well as responsibilities of corporate boards faced with such allegations or suspicions, internal investigations have become much more prevalent and often become the initial official contact with important employee witnesses. Simply stated, federal prosecutors want access to information, often obtained with less formality and adversarial circumstances than official requests from the DOJ. Thus, to the extent such information is protected by the attorney-client privilege or the attorney work product doctrine, the Thompson Memo created a motivation for in-house counsel to consider disclosing this “first responder” information in an effort to avoid harsher treatment by prosecutors. As a result, a survey conducted by the Association of Corporate Counsel found that nearly 75 percent of attorneys interviewed expect a company under investigation to waive its privileges.48 Predictably, critics -- including the American Bar Association, the Association of Corporate Counsel, the National Association of Criminal Defense Lawyers, the American Civil Liberties Union, and the U.S. Chamber of Commerce – labeled the Thompson Memo a full attack on corporate privilege.49 In November 2006, the United States Supreme Court declined to consider whether corporate entities that share information with regulators and prosecutors preserve their right to keep such information from others after the Tenth Circuit rejected Qwest Communications’ efforts to protect such information.50 As a result, on December 7, 2006, Senator Arlen Specter introduced proposed legislation entitled the “Attorney-Client Privilege Protection Act of 2006,” which would bar demanding or requesting attorney-client privilege waivers or production of work product, or taking such factors as waiver, advancement of employee legal fees, and entry into joint defense agreements into account when deciding whether to bring charges against a corporation.51 Clearly, this legislation is aimed at the controversial tactics associated with the Thompson Memo.52 Five days after Senator Specter’s proposal, Deputy Attorney General Paul J. McNulty sent U.S. Attorneys a new memorandum imposing additional authorizations before seeking such waivers (“McNulty Memo”).53 Under the McNulty Memo, prosecutors must obtain written authorization from the Office of the U.S. Attorney, who must then consult with the assistant attorney general for the criminal division before seeking a corporation’s waiver of the attorney-client privilege.54 In assessing the need for a waiver request, four factors must be considered:
While such additional steps are implemented, the McNulty Memo specifically states that a corporation’s disclosure of privileged material can expedite the prosecutor’s investigation.56 The McNulty Memo expressly states that the “disclosure of privileged information may be critical in enabling the government to evaluate the accuracy and completeness of the company’s voluntary disclosure.”57 American Bar Association President Karen J. Mathis called the McNulty Memo only a “modest improvement” in the effort to preserve the sanctity of privilege.58 Whether viewed as a substantive change or merely a public relations strategy, some forecast that it will not derail waiver demands, but rather will drive them “underground.”59 Another likely measure addressing this situation is the expected recommendation from the Federal Rules Reform Advisory Committee to amend Rule 502 of the Federal Rules of Evidence to allow “limited waivers” of privilege. Such “limited waivers” would allow prosecutors to access privileged information without allowing access to opposing parties in civil suits.60 Most U.S. federal and state courts have declined the invitation to adopt “partial waivers.” As discussed above, the Tenth Circuit Court of Appeals rejected Qwest Communications’ request for a finding of “selective waiver” and concluded that a new “government investigation privilege” was not warranted, and the Supreme Court subsequently declined the opportunity to address the issue.61 Without doubt, this prosecutorial power to pressure voluntary waiver of privileged information should remain a concern for any in-house counsel involved in a corporate investigation.
Inadvertent Waiver: Designating Counsel as a Corporate Representative Even when a corporate client and its in-house counsel have been successful in preserving their attorney-client privilege, they must be wary of inadvertently waiving that privilege. Because in-house counsel often serve in business, as well as legal, capacities, an inadvertent waiver of the attorney-client privilege can occur when the attorney is designated as a corporate representative. As one commentator has put it:
While courts generally are unwilling to allow counsel to waive the attorney-client privilege without a client’s implied, actual, or apparent authority, “in-house counsel are agents of the organization itself, [thus] some courts have found that in-house counsel [are] capable of waiving the privilege for the organization.”63 Thus, serving as a Rule 30(b)(6) witness has often placed in-house attorneys in the predicament of unwittingly waiving their client’s privilege. In Motley v. Marathon Oil Co.,64 the court addressed whether Marathon waived its attorney-client privilege by appointing an in-house attorney as its Rule 30(b)(6) representative. As an initial matter, the court noted that “the mere fact that an attorney was involved in a communication does not automatically render the communication subject to the attorney-client privilege.”65 However, “the mere fact that [Marathon] designated a lawyer . . . as its corporate representative at one deposition is a wholly insufficient ground to hold that Marathon waived its attorney-client privilege.”66 While Marathon has been cited several times for this proposition, courts often find waiver of the attorney-client privilege, not based on the Rule 30(b)(6) witness’s attorney status, but based upon the scope of his testimony. In Adler v. Wallace Computer Services, Inc.,67 the court ruled on a motion to compel the testimony of Steven Carson, the Vice President, General Counsel and Secretary of Defendant Wallace Computer Services (“Wallace”). This motion was the result of Wallace appointing Carson as the Rule 30(b)(6) representative regarding the plaintiffs’ termination.68 At the deposition, Carson testified about the plaintiffs’ termination, the investigation into the related allegations of gender discrimination, and conversations with Wallace representatives regarding counterclaims asserted against the plaintiffs.69 While Carson was willing to discuss these subjects to some extent, he asserted the attorney-client privilege and refused to answer a number of questions concerning the same subject matter.70 For instance, he “described conversations with Wallace management about possible terminations and whether allegations of sex discrimination could be expected. However, Mr. Carson refused to disclose the legal advice that he offered during these conversations.”71 In response to these refusals, the plaintiffs moved to compel the witness to answer these questions “because any attorney-client privilege that could have been asserted was waived when Mr. Carson disclosed information during his deposition that would have otherwise been privileged.”72 In addressing the plaintiffs’ motion to compel, the court noted that the attorney-client privilege exists to protect confidential communications between client and lawyer made for the purpose of securing legal advice and that the privilege is intended to encourage frank communication with an attorney.73 The court continued by noting:
This privilege, however, is “waived: (1) when a client testifies concerning portions of the attorney-client communication; (2) when a client places the attorney-client relationship directly in issue; and (3) when a client asserts reliance on attorney advice as an element of the defense.”75 Against this legal back drop, the court found that Carson was serving in a dual role – attorney for the corporation, and corporate representative for discovery purposes.76 “In this second role, Mr. Carson, as the representative of the client, could waive the attorney-client privilege by testifying to portions of the attorney-client communication.”77 Because Carson disclosed statements made by other corporate representatives seeking advice from him in his role as attorney, the court held that these disclosures waived the attorney-client privilege, and Carson could not “refuse to fill in the remaining facts by claiming attorney-client privilege.”78 Therefore, the court granted the motion to compel.79 In contrast, in Colonial Gas Co. v. Aetna Casualty & Surety Co.,80 the court considered whether an attorney’s designation as a Rule 30(b)(6) representative to testify regarding certain negotiations with a governmental entity was enough to constitute a waiver of the attorney-client privilege. The court held that such testimony “does not automatically waive the privilege as to all matters relating to the negotiations.”81 Rather, the purpose of the relevant disclosures to the governmental entity was to promote settlement and, therefore, should not be found to be “an automatic and general waiver of the subject matter of the negotiations” merely because an attorney was designated as a representative under Rule 30(b)(6).82 Similarly, commentators have noted that
This is because “[t]he attorney-client privilege cannot be used as both a sword and a shield; a party that defends its conduct by relying on the advice of counsel, or that testifies concerning portions of the attorney-client communication thereby placed the attorney-client relationship at issue and waived the privilege.84 Indeed, “[c]ourts show an increasing readiness . . . to hold that the client ‘raises an issue’ sufficient to waive the privilege when it merely asserts the reasonableness of its actions or its good faith, or denies that it had the alleged knowledge, intent or state of mind, even where it disclaims reliance on an advice of counsel defense.”85 Because of this risk, parties must be careful to avoid placing any legal advice “at issue” during the course of any depositions of attorney-witnesses. Lastly, as the cases cited above demonstrate, “when in-house counsel relay both legal and business advice in the corporate context, there is no clear standard for courts to use in determining whether or not the communication is protected. . . . [I]n addition to the absence of a bright-line rule, courts have often displayed a bias against in-house counsel when applying the attorney-client privilege to their communications.”86 Therefore, parties must tread lightly around any potentially privileged subject-matter to avoid inadvertent waiver.
Conclusion As this article reflects, the attorney-client privilege takes on a slightly different flavor when applied to in-house attorneys. As a result, corporate legal departments must be all that more diligent in acting to preserve the attorney-client privilege to its fullest extent. Because courts often restrict the scope of the privilege when in-house counsel are involved, these attorneys must take care to be cognizant of the capacity in which they are acting (i.e., legal or business) and avoid the pitfalls that can lead to waiver.
Ken McKay is a partner with Locke Liddell & Sapp LLP. His practice focuses primarily on commercial litigation and eminent domain matters. Mark Chavez is an associate with Locke Liddell & Sapp LLP. His practice focuses primarily on bankruptcy and energy litigation.The authors wish to acknowledge Phil Eisenberg, Charlie Parker and Scott Davidson, partners at Locke Liddell & Sapp LLP, for their contributions to this article.
Endnotes 1.See, e.g., Hertzog, Calamari & Gleason v. Prudential Ins., 850 F. Supp. 255 (S.D.N.Y. 1994); U.S. v. Mobil Corp., 149 F.R.D. 533 (N.D. Tex. 1993). 2.Tex. R. Evid. 503(a)(1); Commodity Futures Trading Comm’n v. Weintraub, 471 U.S. 343, 348 (1985). 3. For a comprehensive analysis of the history and evolution of the attorney-client privilege in Texas, see Fred A. Simpson, Has the Fog Cleared? Attorney Work Product and the Attorney-Client Privilege: Texas’s Complete Transition Into Full Protection of Attorney Work in the Corporate Context, 32 St. Mary’s L.J. 197 (2001). 4. As Justice Owen pointed out in her dissent in Valero Transmission, L.P. vs. Dowd, 960 S.W.2d, 642, 646 (Tex. 1997), commenting on this predicament:
Under Rule 503, neither the lawyer nor members of upper management can seek out this information and maintain the attorney-client privilege. Even if a memo from upper management to an employee who does not have authority to act on legal advice clearly says, “The company is seeking legal advice and needs to know . . . ,” that communication is not privileged because it is not between a representative of the client (as defined in the rule) and another representative of the client. Nor would it fall within any of the other provisions of Rule 503(b). For the same reasons, a communication between the lawyer and the employee who has possession of the facts that the lawyer needs to know to render legal advice is not privileged. Such a rule impairs a corporation’s right to effective legal counsel. 5.Tex. R. Evid. 503(a)(2); In re Monsanto Co., 998 S.W.2d 917, 922 (Tex. App.—Waco 1999, no pet.). 6.Tex. R. Evid. 503(a)(2)(A). 7.Tex. R. Evid. 503(a)(2)(B). 8.N.C. Elec. Membership Corp. v. Carolina Power & Light Co., 110 F.R.D. 511, 514 (M.D.N.C. 1986). 9.Id. (emphasis added). 10.See Coleman v. Am. Broad. Cos., 106 F.R.D. 201, 205 (D.C. Cir. 1985) (concluding that communications between an attorney and another individual which relate to business, rather than legal matters, do not fall within the protection of the privilege). 11.N.C. Elec. Membership Corp., 110 F.R.D. at 516. 12.Id. (internal quotations omitted). 13.Id. 14.Id. at 517. 15.See Huie v. DeShazo, 922 S.W.2d 920, 926 (Tex. 1996). 16.N.C. Elec. Membership Corp., 110 F.R.D. at 517. 17.Teltron, Inc. v. Alexander, 132 F.R.D. 394 (E.D. Pa. 1990). 18.Id. at 395. 19.Id. 20.Id. at 396 (internal quotations and citations omitted). 21.Id. 22.Id. 23.Id. (quoting Avianca, Inc. v. Corriea, 705 F. Supp. 666, 676 (D.D.C. 1989)). 24.Hardy v. New York News, Inc., 114 F.R.D. 633 (S.D.N.Y. 1987). 25.Id. at 644. 26.Id. 27.Id. 28.Id. 29.Id. 30.U.S. Postal Serv. v. Phelps Dodge Ref. Corp., 852 F. Supp. 156 (E.D.N.Y. 1994). 31.Id. at 160. 32.Id. at 163. 33.Id. at 163. 34.Id. at 163-64. 35.In re Central Gulf Lines, Nos. CIV.A.97-3829, 99-1888, 2000 WL 1793395, at *2-4 (E.D. La. Dec. 4, 2000) (citations omitted). 36. Under Texas Rule of Evidence 503(b)(1), a communication is confidential if not intended to be disclosed to third persons other than those to whom disclosure is made in furtherance of the rendition of professional legal services to the client. 37.Giffin v. Smith, 688 S.W.2d 112 (Tex. 1985). 38.Id. at 114. Notwithstanding this holding, sometimes “the documents themselves may constitute the only evidence substantiating the claim of privilege.” Weisel Enters., Inc. v. Curry, 718 S.W.2d 56, 58 (Tex. 1986). 39.Garner v. Wolfinsbarger, 430 F.2d 1093, 1101 (5th Cir. 1970), cert. denied, 401 U.S. 974 (1971). 40.Id. at 1103. 41.Id. at 1101. 42.Id. at 1104. 43.See In re Halter, No. 05-98-01164-CV, 1999 WL 667288, at *10 n.4 (Tex. App.—Dallas Aug. 27, 1999, no pet.) (not designated for publication). 44.See Weil v. Inv./Indicators Research and Mgmt., Inc., 647 F.2d 18, 23 (9th Cir. 1981). 45.See Cox v. Adm’r of U.S. Steel & Carnegie, 17 F.3d 1386, 1415 (11th Cir. 1994) (union actions); Ward v. Succession of Freeman, 854 F.2d 780, 786 (5th Cir. 1988), cert. denied, 490 U.S. 1065 (1989) (shareholder seeking personal recovery). 46.See Milroy v. Hanson, 875 F. Supp. 646, 651 (D. Neb. 1995). 47. Memorandum from Larry D. Thompson, Deputy Attorney General, to Heads of Department Components, United States Attorneys (January 20, 2003), available at http://www.usdoj.gov/dag/cftf/business_organizations.pdf. 48. Pamela A. MacLean, McNulty Memo on Attorney-Client Privilege Blasted for Lack of Change, The National Law Journal, January 26, 2007, available at http://www.law.com/jsp/ihc/PubArticleIHC.jsp?id=1169719351771. 49. Ann Graham, New Memo Won’t Ease Attorney-Client Privilege Concerns, Texas Lawyer, February 5, 2007, at page 12; Martha Neil, Thompson Memo Changes Not Enough, ABA Says, ABA Journal eReport (December 15, 2006), available at http://www.abanet.org/journal/ereport/d15specter.html. 50.Qwest Communs. Int’l Inc. v. New Eng. Health Care Employees Pension Fund, 127 S.Ct. 584 (2006). 51. SFGate.com, U.S. Senator takes on so-called “Thompson Memo” (December 7, 2006), available at http://www.sfgate.com/cgi-bin/blogs/sfgate/detail?blogid=19&entry_id=11639. 52.Id. 53. Memorandum from Paul J. McNulty, Deputy Attorney General, to Heads of Department Components, United States Attorneys (December 12, 2006), available at http://www.usdoj.gov/dag/speech /2006/mcnulty_memo.pdf. 54.Id. 55.Id. 56.Id. 57.Id. 58. Graham, supra note 50. 59. MacLean, supra note 49. 60.Id. 61.In re Qwest Communs. Int’l Inc., 450 F.3d 1179, 1192 (10th Cir. 2006), cert. denied, 127 S.Ct. 584 (2006). 62. Jerold S. Solovy et al., Protecting Confidential Information: A Handbook for Analyzing Issues Under the Attorney-client Privilege and the Work-Product Doctrine, 675 PLI/Lit 7 (April 2002). 63.Id. 64.Motley v. Marathon Oil Co., 71 F.3d 1547 (10th Cir. 1995). 65.Id. at 1550-51. 66.Id. at 1552; see also Avery Dennison Corp. v. UCB Films PLC, No. 95 C 6351, 1998 WL 703647, at *7 (N.D. Ill. Sept. 30, 1998) (citing Motley v. Marathon Oil Co., 71 F.3d 1547 (10th Cir. 1995)) (noting that a Rule 30(b)(6) designee’s status as an attorney, without more, does not waive any privilege). 67.Adler v. Wallace Computer Servs., Inc., 202 F.R.D. 666 (N.D. Ga. 2001). 68.Id. at 674. 69.Id. 70.Id. 71.Id. 72.Id. 73.Id. (citations omitted). 74.Id. 75.Id. 76.Id. at 674-65. 77.Id. at 675. 78.Id. 79.Id. 80.Colonial Gas Co. v. Aetna Cas. & Sur. Co., 139 F.R.D. 269 (D. Mass. 1991). 81.Id. at 273. 82.Id. 83. 7 Ann. Pat. Dig. § 42:77 (December 2006) (emphasis added). 84. 1 Corp. Couns. Guidelines § 1:25 (2005). 85.Id.; but see Oxyn Telecomms., Inc. v. Onse Telecom, No. 01 Civ. 1012, 2003 WL 660848, at *22 (S.D.N.Y. Feb. 25, 2003) (holding that the mere denial of a claim of bad faith and fraud does not constitute an affirmative claim of good faith so as to raise an advice-of-counsel waiver.). 86. Amber Stevens, An Analysis of the Troubling Issues Surrounding In-House Counsel and the Attorney-Client Privilege, 23 Hamline L. Rev. 289 (Fall, 1999).
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