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Attorney-Client Privilege and Sexual Harassment: Lessons from a Hollywood Scandal

H ollywood, and legal departments in general, were rocked when the New York Times and Ronan Farrow for the New Yorker revealed that Harvey Weinstein, producer and head of Miramax films, had sexually harassed or assaulted more than a dozen women. With the encouragement of actress Rose McGowan, one of his alleged victims, more women have come forward on social media and spoken to the press as part of the #MeToo movement. The number of Weinstein’s accusers has since surged to 80.

In November, Farrow published a follow-up New Yorker exposé that revealed Weinstein hired Black Cube, a private investigation firm, to suppress a New York Times story about sexual assault allegations filed against him. Weinstein also hired attorney David Boies to superficially run the investigation under the guise of attorney-client privilege in an effort to conceal these communications from the public. A spokesperson for Weinstein denied these claims.

[Related: Sexual Harassment in the US: Don't Be a Trending Topic]

The latest scandal raises familiar questions that in-house counsel often face with client communications: What constitutes attorney-client privilege and when is it being used ethically? The ACC Docket December 2017 cover story “Lawyers on the Front Lines: Identify Risk and Managing Internal Investigations” examines these concerns and delves into how they impact in-house counsel:
“As in-house legal teams take on more varied responsibilities within companies, issues of attorney-client privilege are becoming thornier. This is especially true for in-house counsel who participate in strategic business decisions where they may be providing both legal and business advice.”
Authors Amber Lee Williams, Matthew Singer, and Lorraine Campos then refer to an amicus brief that US Chamber of Commerce and ACC submitted on the matter. This brief argues that any legal and business negotiation communication advice that the in-house counsel offers must be protected.

To discover how in-house counsel can avoid ethical quandaries, such as the ones that Boies faces, we spoke with Amar Sarwal, ACC chief legal officer and senior vice president of advocacy and legal services, as well as the ACC counsel of the aforementioned amicus brief.

First, clear communication is essential to protect the integrity of the attorney-client privilege. Clients often unwittingly abuse this privilege by assuming that what they disclose to their attorney is confidential. However, sending an attorney an email or hiring them to do an investigation “doesn’t automatically provide attorney-client privilege,” Sarwal clarifies.

[Related: An In-house Counsel's Guide to Protecting Attorney-Client Privilege]

In this case, there was little legal supervision of Weinstein’s investigation, as Boies has denied “direct[ing] the investigators’ work.” That Weinstein handled the investigation himself — instead of his attorney — is a glaring indication that he abused attorney-client privilege for ulterior motives. “The purpose of this investigation doesn’t appear to be seeking legal advice,” Sarwal observes. “Instead, it appears to have been to suppress a news story.”

Stopping an article from being published isn’t illegal, Sarwal notes. However, Boies could possibly face disciplinary charges, given that he provided cover for dishonest conduct. He could also potentially serve jail time if he aided his client’s attempt to obstruct the criminal investigation into the sexual assault accusations.

In addition, for attorney-client privilege to apply, it is critical for in-house counsel and general counsel, in particular, to keep in mind their own ethical obligations. “The GC must remember that their client is the company itself. Not the senior executives, not the board of directors, not the shareholders, though at times and depending on the situation, each of them can represent the company,” Sarwal says.

Apart from the misuse of attorney-client privilege, the Weinstein scandal also poses another issue that GCs commonly face. It is now abundantly clear that preventing sexual harassment must be top priority for in-house counsel — and not only to avoid costly lawsuits. Sarwal warns that a tainted reputation can deter shareholders from investing, customers from buying, and new talent from applying to the company. In short, ignoring the problem hurts the business’s bottom line.

[Related: Examining Sexual Harassment in the Workplace]

The solution to prevent sexual harassment is to foster a zero-tolerance culture. This culture must come from the top and permeate every level of the organization, from the CEO to the interns. For that to happen, the sexual harassment policy must be ingrained in the staff. “It’s not something that should languish in personnel handbooks,” Sarwal stresses. “It has to be part of the lived experience of every employee.”

In fact, it’s likely that most companies have a sexual harassment problem lurking in their own office, if the recent avalanche of allegations is any indication. As such, general counsel must be proactive in finding and resolving these problems before they become front page news, Sarwal warns. “It’s very likely that you have an employee who would cry out ‘#metoo’ as well.”

About the Author

Karmen Fox is the web content editor of ACC Docket.

The information in any resource collected in this virtual library should not be construed as legal advice or legal opinion on specific facts and should not be considered representative of the views of its authors, its sponsors, and/or ACC. These resources are not intended as a definitive statement on the subject addressed. Rather, they are intended to serve as a tool providing practical advice and references for the busy in-house practitioner and other readers.