An important ethics warning for corporate counsel

From an article in the ABA Journal last week :   “As a way to undermine discovery, Google directs employees to add attorneys and seek legal advice in writing for ‘ordinary-course business communications,’ according to a March 21 sanctions motion filed by the U.S. Department of Justice, which is suing the company for alleged antitrust violations.  Known as the Communicate With Care program, it began in 2016, according to the U.S. District Court for the District of Columbia filing. ‘Often, knowing the game, the in-house counsel included in these Communicate With Care emails does not respond at all, according to the motion. A Google spokesperson told Reuters that the government has more than 4 million documents from the company, and the ‘teams have conscientiously worked for years to provide responses.  The motion asks the court to sanction Google for misusing attorney-client privilege and order that all documents be released in instances in which an attorney was included in the communication but did not reply.’”

This is not a new issue. DOJ had – years earlier – investigated whether some tobacco industry lawyers had improperly tried to hide routine business communications behind the privilege (although no charges were brought on this theory).  Indeed, my law partner Rebecca Walker and I have spoken at several PLI and SCCE compliance conferences on the need to avoid misuse of the privilege in this way.

Regardless of how the Google motion is ultimately resolved, in-house counsel should take appropriate measures to ensure that “over-privileging” is not done in their respective companies.  The same is true of outside counsel, although presumably the danger with the latter is less than it is with the former.

At a minimum this should involve some education – whether it be a memo from the general counsel, comments at a law department meeting or both.  For higher risk situations, some follow-up contact or other forms of monitoring may be warranted.

Finally, I should make clear that I am not suggesting that this is a “red alert” for corporate counsel. But it is a good opportunity to ask: Am I basically okay?