Wisconsin Business and Commercial Litigation

The topic of privilege for in-house counsel continues to grab headlines, at least in the world of lawyers.  Although the most recent case on the topic isn’t from Wisconsin, I wanted to share it, because it highlights a single element of the privilege that can go overlooked. 

In Gucci America, Inc. v. Guess?, Inc., 2010 WL 2720015 (SDNY June 29, 2010), the court determined that because in-house counsel was not an active member of any state bar, communications between the corporate plaintiff and its counsel were not privileged.  There’s a more full description in Hinshaw & Culbertson LLP’s “The Lawyer’s Lawyer” newsletter, including this recommendation for in-house counsel:

In-house counsel departments should institute the same kinds of controls that are customary in law firms to ensure that all those who are held out as lawyers within the entity are in fact licensed and duly admitted in each jurisdiction where they practice. Such procedures will protect the attorneys individually and collectively and also demonstrate the corporate employer-client’s interest in ensuring that all in-house counsel retain licensure.  

Ensuring proper licensure may be complicated when in-house legal staff are required to travel to and advise in multiple jurisdictions on behalf of their employer or, as occurred in this case, the lawyer moves between legal and non-legal roles. A detailed understanding of the adoption (or not) of ABA Model Rule 5.5 (multijurisdictional practice) wherever in-house counsel regularly operate, and of the registration procedures for in-house lawyers now available in many states, are now essential for all general counsel.

That’s good advice.

Although it’s not Wisconsin-related yet, those of you in in-house practice want to keep a close eye (if you haven’t already been) on a case currently up on appeal from the First Circuit to the Supreme Court:  U.S. v. Textron.  The issue in the case is the viability of the work product privilege as it relates to the work of in-house counsel.  Susan Hackett of the Association of Corporate Counsel filed an amicus brief with the court, and writes a great post on the topic.  As I said, although it’s not a Wisconsin court, the case will impact what you do for your company and how you do it.