Strategic Considerations for In-House Counsel Regarding the Attorney-Client Privilege

By Corinne C. Heggie

On October 6, 2016, the WBAI’s In-House Committee conducted a panel discussion entitled “Strategic Considerations for In-House Counsel Regarding the Attorney-Client Privilege.” The panel discussion addressed the application of the attorney-client privilege to the in-house counsel environment. The panel also discussed best practices for in-house counsel and their clients. The panel was comprised of two in-house attorneys, Deborah G. Solmor, Deputy General Counsel, Litigation & Chief Compliance Officer for Career Education Corporation, and Monika J. Machen, Senior Counsel Litigation for General Electric Capital Corporation, and two attorneys in private practice, Terance A. Gonsalves and Carrie M. Stickel, a partner and an associate respectively in Katten Muchin Rosenman LLP’s Litigation and Dispute Resolution practice groups in Chicago.

Ms. Sickel and Mr. Gonsalves provided an overview of the attorney-client privilege and how the privilege can arise for an attorney practicing in a corporate legal department. They reviewed the corporate Miranda warning, also known as the Upjohn warning.  The term originated with the Upjohn Company v. United States, 449 U.S. 383 (1981) United States Supreme Court decision that held the attorney-client privilege is preserved between the company and its attorney when its attorney communicates with the company’s employees, despite the rule that communications with third-parties constitute waiver of the attorney-client privilege.  Ms. Sickel and Mr. Gonsalves reviewed the impact state law will have on the attorney-client privilege, as well as the nuances of Illinois law that can impact how a court could potentially examine the privilege during the course of litigation.

Ms. Machen and Ms. Solmor were able to illustrate the practical considerations of law, interpreting the attorney-client privilege and the privilege’s day-to-day application in corporate legal departments. Ms. Machen and Ms. Solmor both endeavor to work with and educate their business partners about the attorney-client privilege. They agreed that keeping current on the privilege and how it is being applied by courts help them educate themselves, as well as their business partners.

The topic generated robust audience dialogue with the panel about the attorney-client privilege’s application to certain forms of communications within corporations and how to handle the privilege during an internal investigation.

The WBAI In-House Committee is grateful to Mr. Gonsalves, Ms. Sickels, and their team at Katten Muchin Rosenman LLP in Chicago for hosting the event. The In-House Committee co-chairs are Corinne C. Heggie, Deborah G. Solmor, Jeanine O. Stathopoulos and Elizabeth Winiarski.

This article first appeared in the WBAI Winter 2017 Newsletter.

 Corinne C. Heggie is an attorney at Scharf Banks Marmor LLC, the largest majority women-owned law firm in the Midwest. Ms. Heggie represents corporations in litigation under the Telephone Consumer Protection Act, Fair Credit Reporting Act, Fair Debt Collection Practices Act, RESPA, TILA and their state law corollaries.  Ms. Heggie is a member of the WBAI’s Board of Directors and co-chairs the In-House  Committee.