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During the May 22 Corporate Secretary Think Tank, New York-based Partner Stephen L. Ascher and Dawson Horn, Assistant General Counsel of Altria, provided the over 50 corporate secretaries and senior level in-house legal executives with their views on the biggest challenges facing today’s corporations and directors and officers in relation to the ever changing law of attorney-client privilege.
Mr. Ascher told the attendees about the profound and sometimes devastating impact of the changes in privilege law in this era of increased prosecutorial scrutiny. For example, Mr. Ascher described a case involving an in-house lawyer who was indicted, partly based on issues relating to document productions and his company's assertion of the attorney-client privilege during an investigation. Mr. Ascher also noted a case in which some company personnel who voiced vehement opposition to their company's underlying fraudulent conduct were indicted notwithstanding their opposition to it.
Ultimately, "it looks like the government is saying that if you know of wrongdoing in an organization, you should resign or you will face the distinct possibility of being indicted," Mr. Ascher commented.
Mr. Dawson took the attendees through a series of hypothetical scenarios in which the issue of privilege become increasingly more complex and less clear-cut. Mr. Dawson concluded that it is important for in-house counsel to take steps for protecting privilege including such as engaging outside counsel early in the process. "Courts will typically look more skeptically at inside counsel alleging privilege, rather than outside counsel," he said.
After short presentations by Mr. Ascher and Mr. Dawson the attendees engaged in a lively discussion of the various challenges they face on a daily basis with regard to privilege. The discussion, which was emceed by Brendan Sheehan, executive Editor of Corporate Secretary magazine was wide ranging and drew on the experience as the attendees, Mr. Ascher as outside counsel and Mr. Dawson as an experienced in-house counsel.