In almost every white-collar case, questions arise about the attorney-client privilege and work-product doctrine. Issues concerning the identity of the client, the holder of the privilege, and whether representation of multiple clients is proper are often present at the very start, and the fluid nature and complexity of most white-collar investigations often complicate efforts to protect the privilege against claims of waiver. This article reviews recent cases concerning attorney-client privilege and work-product doctrine issues that may arise in a white-collar case or investigation.
‘Finazzo’
In United States v. Finazzo, the court considered an issue that is arising more frequently in the age of rampant email communications: whether the attorney-client privilege is lost when an individual communicates with his personal counsel through his employer’s email account.1 Ten years after the fraudulent scheme alleged in the indictment began, an investigative firm hired by Aéropostale to conduct an unrelated internal investigation discovered an email in an Aéropostale executive’s work account that was from the executive’s personal attorney. This email disclosed the executive’s interest in one of Aéropostale’s vendors through which he received a secret profit. Finazzo, the executive, claimed that he never authorized his personal attorney to send privileged materials to his company email address, and asserted that when he received the email, he "forwarded it to a non-Aéropostale email account, deleted the email…and instructed [his lawyer] to send confidential information only to another email address."2 Upon discovery of the email, the company’s CEO and general counsel terminated Finazzo for cause.
