I get to talk to the smartest people in compliance and ethics every day. Below is an exchange with Joe Murphy. I sent Joe an article about a whistleblower’s attorney claiming that the Houston Independent School District retaliated against his client and then moved the compliance and ethics department to the district lawyers to bury the facts of the case in attorney-client privilege. Joe responded, “Of course, you can’t hide the facts by using privilege.” Then I asked if I could quote him on Twitter.
He said… “Sure, but it is a technical point. If I tell my lawyer something, what I said to her is confidential. But if I told her about an accident, I can’t be asked what I told her, but I can be asked what I saw. If someone received gifts, their discussion with legal counsel (acting as a lawyer providing confidential legal advice) is protected, but the fact that someone gave the person a gift is not. So the gift recipient can’t be asked what they told counsel, but they can be asked about the gift. However, if someone asks counsel how to hide illegal gifts and counsel provided advice, that would not be privileged; it would come under the crime-fraud exception and would be fair game. Cheers, Joe”
We need a better understanding of all this, particularly if people are using this argument to change the way compliance is practiced in their organization because it can negatively impact the effectiveness of compliance programs.
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