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September|October 2005
The Prudent Jurist By William H. Simon
Evil Twins By John Wolfson
Elder Counsel By Louisa Lombard
U-Hell By Nicholas Hengen
Torture, Inc. By Tara McKelvey
Was the Plant a Plant? By Demian Bulwa
Cases & Controversies

The Prudent Jurist

By William H. Simon

I recently served as a juror in a civil trial. After the trial, I got a phone message from one of the legal teams saying that they'd like to "take me to lunch." I have no idea how they got my number. Would it be all right to take them up on their offer?
Brent T. Meyer, Las Vegas, Nev.

ALTHOUGH SOME STATES PROHIBIT LAWYERS from initiating discussion with trial jurors after they've been discharged, most, including Nevada, do not. You are free to accept the invitation, and there are no rules that limit what you can say.

Should you establish your own limits? Probably. Clearly, if you know of any improprieties in the jury's deliberations that might call the verdict into question, the fairest thing to do is not to just tell the party that asked you out, but rather to write the judge and let her pass your information on to both sides.

Whether you should feel ethically constrained from sharing other information with the legal team is a tougher call. Some people feel that it is a bad idea for jurors to discuss their deliberations. They say that,if the public were aware of the messy give-and-take of group decision-making, it would undermine confidence in jury decisions. Others worry that jurors might be inhibited from freely expressing their views during deliberation if they knew that what they said in the jury room would be shared with lawyers from the case or disclosed in the popular press after the trial.

But the counterview is more plausible: Jurors make important decisions on behalf of the public, and no important public decision should be entirely shielded from public view. The legal team's curiosity about how jurors reacted to particular evidence and arguments and how the jury reached its decision seems legitimate, and it would not be wrong to talk to the lawyers.

It might be advisable, however, to hold back personal matters that would be embarrassing and did not affect the decision, like any spats and backbiting among your fellow jurors. You can give the legal team pointers, but there's no sense in gossiping.

Some federal prosecutors are insisting that corporations suspected of wrongdoing waive the attorney-client privilege and turn over any evidence they have in exchange for leniency. Several bar groups have complained that this practice is eroding the privilege for corporate clients. A parade of corporate lawyers recently testified before a task force of the American Bar Association that managers have become reluctant to speak to them for fear that what the managers say will end up in court. Does the corporate attorney-client privilege need shoring up against prosecutorial zeal?

IT IS TRUE THAT THE CORPORATE ATTORNEY-CLIENT PRIVILEGE provides flimsy protection for communications between managers and the corporation's lawyers, but this is hardly a new development. If managers have grown warier about confiding in their companies' lawyers, it is more likely because recent cases have reminded them of the longstanding limits on the privilege than because of any new practices by prosecutors.

The really important limits on the corporate privilege have been well established for years: The privilege belongs to the corporation, and not to the managers who consult the corporate lawyers. This means that the corporation's board can waive the attorney-client privilege and turn over the manager's communications to the government whenever it is in the organization's interest to do so. (And boards are often happy to offer up an errant manager or two to prosecutors if board members think it will appease the government.)

Corporate lawyers also have other professional obligations that further compromise the privilege. A lawyer who learns of wrongdoing from a manager has a duty to report it to the manager's superiors within the organization, despite the privilege. And lawyers often have a duty to ensure that certain information is reported under securities laws or civil discovery rules, even if the communication with the manager was privileged.

Given how weak and qualified the privilege has always been, it's hard to believe that current prosecutorial practice has made a material difference. It has always been irrational for a manager to make statements to the corporation's lawyer that she wouldn't have made without any confidentiality safeguard at all.

But despite all of these holes in the privilege, corporate managers are unlikely to stop consulting lawyers. They have several inducements to seek legal advice, and these inducements have been strengthened in recent years. The federal criminal sentencing guidelines dictate that, when calibrating the severity of a sentence, judges ought to consider a corporation's internal efforts to stop law-breaking, and a manager's consultation with a lawyer could be seen as good evidence of those efforts. Recent case law on civil liability suggests that the extent of a manager's individual liability for business decisions that fail will depend in part on whether he sought professional, including legal, advice.

If the carrot of confidentiality is insufficient to drive managers to consult lawyers, the stick of liability should be.

William H. Simon teaches professional responsibility at Columbia Law School and is a contributing editor of Legal Affairs.

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