Article New Able Act Eases Financial Planning for Families of Individuals With Disabilities

• Publication year: 2015
• Pages: 30

Article New ABLE Act Eases Financial Planning for Families of Individuals with Disabilities Vol. 28 No. 3 Pg. 30 Utah Bar Journal June, 2015

May, 2015

William R. Knowlton, J.

At the time of arrest, criminal suspects are told that they have the right to an attorney and that anything they say can be used against them. This is commonly known as the Miranda warning. Miranda v. Arizona, 384 U.S. 436 (1966). To bolster the attorney-client privilege with corporate clients during internal investigations, evolving case law admonishes the investigating lawyer to deliver certain disclosures to the company's employees. See, e.g., United States v. Nicholas, Case No. 8:08-00139 (Dkt. 338) (CD. Cal. 2009); In re Broadcom Corp. Derivative Litig., Case No. 2:06-cv- 03252 (Dkt. 272) (CD. Cal. 2009). This warning is sometimes referred to as the "Corporate Miranda Warning."

In 1981, the U.S. Supreme Court held that the attorney-client privilege could be maintained between a company and its attorneys, even though communications had occurred between the company's legal counsel and its third-party employees. See Upjohn Co. v. United States, 449 U.S. 383, 386-96 (1981). Chief Justice William Rehnquist, writing for the Upjohn majority, reasoned, "the [attorney-client] privilege recognizes that sound legal advice or advocacy serves public ends and that such advice or advocacy depends upon the lawyer's being fully informed by the client." Id. at 389.

In response to the Upjohn ruling and its subsequent progeny, the Utah Advisory Committee on the Rules of Evidence broadened the definition of "client" to allow for a "representative of the client." Utah R. Evid. 504(a) (4). This definition protects disclosures not only of the corporate client to legal counsel, but also corporate employees "who are specifically authorized to communicate to the lawyer concerning a legal matter." Id. advisory committee's note.

But how does the attorney-client privilege change when the client is a business entity? This query becomes even more acute for in-house counsel and outside corporate lawyers, especially those attorneys who regularly interact with high-ranking corporate executives.

As attorneys, we have an express duty of loyalty toward our current clients, which prohibits our undertaking concurrent representation that is directly adverse to our client. Utah Rules of Professional Conduct 1.7 cmt. 6 ("Loyalty to a current client prohibits undertaking representation directly...