Risk Update

Risk Potpourri — OCG Recommendations, Practice of Law Peril, Privilege and PR Consultation

Thought I’d share various pieces that have caught my eye recently. Making me smile, this piece recommending law departments review and revise Outside Counsel Guidelines: “Maximize the Impact of Your Legal Invoice Review Process” —

  • “#1: Ensure your outside counsel billing policies and guidelines are current, concise, and acknowledged by your law firms… How long has it been since you updated your outside counsel billing guidelines? … Is your billing policy a 50+ page screed that is sure to be electronically archived into Outlook oblivion?”
  • “#2: Implement a quantifiable and enforceable diversity and inclusion policy… Understanding the ways your providers procure, retain, and promote talent is critical to the impact on the integrity of your own organization’s D&I policy.”
  • “#3: Limit outside counsel’s ability to perform firm-based eDiscovery work… Nothing racks up those expenses faster than law firms performing these quasi-legal tasks themselves.”

I dug in, as it’s always interesting to read what your law department clients are reading and being advised to do… and since this particular article was written by a company in the business of providing outsourced eDiscovery work, the picture around #3 suddenly came into focus…

An interesting example of lawyer collaboration risk: “A lawyer who filed Sidney Powell’s Michigan election lawsuit says he shouldn’t be disbarred and was just ‘holding the fort’ for her” —

  • “A local attorney who was instrumental in filing Sidney Powell’s Michigan lawsuit to throw out the state’s votes in the 2020 presidential election, said in a court filing he was just ‘holding the fort’ for her and shouldn’t be sanctioned or disbarred.”
  • “Gregory Rohl, a trial attorney based in Novi, Michigan, wrote in a federal court affidavit that he was quarantined at home after having contracted COVID-19 when he was asked to assist Powell and the attorney Lin Wood in filing the case. Rohl said in his affidavit he was approached at 6:30 p.m. and told the filing deadline was at midnight.”
  • “Rohl’s filing comes just days after Michigan Gov. Gretchen Whitmer, state Attorney General Dana Nessel, and Michigan Secretary of State Jocelyn Benson filed complaints seeking to disbar Powell, Rohl, and several attorneys who were involved in the lawsuit.”
  • “Powell, a Texas attorney, was unable to file the suit herself at the time, as she did not have a license to practice law in Michigan. Rohl was told Powell was waiting to hear back about her pro hac vice application, a request for permission to work on the case when a lawyer does not have the legal authority to practice law in the area.”

With recent news highlighting matters of privilege when it comes to external security analysts, this piece by Alston & Bird Partner Daniella P. Main and Associate Mia L. Falzarano, caught my eye. It explores matters of PR consultation and privilege: “Tips for Protecting Privilege When Working with Outside PR” —

  • “To be entitled to privilege protection, an attorney’s communications with a PR firm must fall within one of two recognized exceptions to the general rule that disclosing privileged information to a third party waives the privilege: (1) the necessity test, i.e., the PR firm is necessary to facilitating legal services; or (2) the functional equivalent test, i.e., the PR firm is so integrated into the company’s business that they are the functional equivalent of an employee in communicating with counsel.”
  • “However, whether and to what extent communications with a PR firm will satisfy these tests is notoriously unpredictable, depending not just on the nature of the specific communication but also on the nature of the PR firm’s role and its relationship with both the company and counsel, whether there is an actual or real threat of litigation, and the jurisdiction evaluating the communications, to name just a handful of considerations.”
  • “As a result, there are few areas of privilege law as unsettled and marked with as much outcome disparity as the question of whether attorney-client privilege applies to communications with PR firms and what communications will then enjoy the protection.”
  • “In the context of pending or threatened litigation, companies will be best positioned to assert protection over their communications when the PR firm is hired by outside counsel to engage in functions necessary to achieving a specific litigation goal and when they are communicating with counsel for the express purpose of seeking and rendering legal advice related to that goal.”
  • “If the same PR firm is being utilized for legal-related PR work, counsel should enter into separate engagements with the firm for legal work and for nonlegal work.”
  • “Under all circumstances, detailed record-keeping is king. Ensure that the engagement letter clearly describes the PR firm’s role in improving the company’s ability to receive or implement legal advice. Have bills go through counsel and ensure that the billing descriptions include how the PR firm’s work helped counsel provide legal advice. Likewise, ensure that any communications involving the PR firm clearly relay the legal advice being sought of counsel and that counsel is providing substantive legal advice in response.”
If you liked this post, please share it: