Attorney Client Privilege Update: Identity, Crime Fraud and the Attorney As Whistleblower

Categories: Legal Ethics, Artificial Intelligence (AI), Law Firm Management, Law Practice, Legal Tech In an evolving legal environment marked by heightened enforcement and regulatory scrutiny, the foundational doctrines of attorney-client privilege and work product protection continue to face significant challenges. Attorneys Ian M. Comisky of Fox Rothschild LLP and Bryan C. Skarlatos of Kostelanetz LLP explore critical developments, including enforcement actions that probe client identities, expanding interpretations of the crime-fraud exception, and new judicial and ethical pressures on privilege claims. This session offers a circuit-by-circuit analysis of how privilege and protection are being defined and contested, including search warrants targeting privileged records, as well as the ethical and professional responsibilities attorneys face when withdrawal, disclosure, or whistleblowing may be required. The program will also cover emerging issues relating to the use of artificial intelligence and the dangers to the attorney client privilege and work product protections. Ideal for litigators and in-house counsel alike, this program equips practitioners with practical guidance to navigate these complex issues and confidently safeguard client and firm interests. ---------------------- 00:00 Attorney-Client Privilege Fundamentals 22:20 Work Product Doctrine 32:00 Ethical Obligations and AI Challenges 48:51 Hypotheticals and Case Studies ---------------------- Lawyers: Want CLE credit for watching this video? Join Justia Connect Pro and watch it on Justia Learning - details at https://j.st/5dQJ ---------------------- Agenda Overview Overview of attorney-client privilege and its modern challenges The increasing scrutiny on attorneys in regulatory and enforcement contexts Framing privilege within today’s compliance and technology landscape Basics of Attorney-Client Privilege & Work Product Doctrine Core elements and requirements of attorney-client privilege Key limitations, including business vs. legal advice distinctions Work product doctrine: scope, purpose, and key differences from privilege The Kovel doctrine and use of third-party professionals Gatekeeper Initiative & FinCEN Residential Real Estate Rule U.S. anti-corruption strategy and the “gatekeeper” concept AML and KYC expectations for attorneys and other professionals Overview of FinCEN’s Residential Real Estate Reporting Rule Tension between reporting obligations and confidentiality duties Attorney Ethics Rules & AI Considerations Ethical duties of confidentiality vs. evidentiary privilege ABA Model Rules developments and risk-based client assessment “Willful blindness” and heightened due diligence expectations AI-related risks: hallucinations, privilege waiver, and recent case law Hypothetical 1: Kovel Privilege Under Scrutiny Application of privilege to accountants and other third-party agents Distinguishing legal advice from non-privileged services Responding to summonses and subpoenas targeting third-party communications Hypothetical 2: Client Identity & Disclosure Obligations Limits of privilege in protecting client identity John Doe summons and compelled disclosures Circuit splits and practical implications Hypothetical 3: AI Use and Privilege Waiver Whether use of AI tools waives privilege Confidentiality concerns with third-party platforms Emerging judicial treatment of AI-assisted communications Conclusion Key takeaways on privilege protection and risk management Practical guidance for navigating evolving obligations Q&A (As Time Permits) ---------------------- Ian Comisky Partner Fox Rothschild LLP https://connect.justia.com/webinars/s... Mr. Comisky is the Chair of International Compliance with the law firm of Fox Rothschild LLP. Mr. Comisky concentrates his practice in the areas of civil and criminal tax litigation, anti-money laundering compliance and complex corporate and commercial litigation. Mr. Comisky is the co-author of Tax Fraud and Evasion, which was reissued in December of 2023 and contains chapters dealing with money laundering, asset forfeiture, attorney client privilege and work product issues, as well as domestic and international compliance issues. Bryan Skarlatos Partner Kostelanetz LLP https://connect.justia.com/webinars/s... For forty years, Bryan has focused his practice on civil and criminal tax matters and other white collar criminal investigations and prosecutions. Clients often hire him as an expert on tax standards, penalties, and procedures. #JustiaForAll #JustiaWebinars #JustiaLearning