Tenth Circuit Applies the Bevill Standard

September 28, 2016

Although corporations’ in-house and outside lawyers should scrupulously avoid accidentally creating an attorney-client relationship with employees, they can also rely on what amounts to a favorable default rule — articulated in In re Bevill, Bresler & Schulman Asset Management Corp., 805 F.2d 120, 123 (3d Cir. 1986).

In United States v. Merida, No. 15-7043, 2016 U.S. App. LEXIS 12786 (10th Cir. July 12, 2016), the Tenth Circuit dealt with a familiar scenario – an executive (of the Choctaw Nation) claimed that the Nation’s lawyer also represented him personally. The executive sought to overturn his criminal conviction for embezzlement — based in part on the Nation’s lawyer’s testimony about the executive’s statements during a related interview. The Nation’s lawyer told the executive during the interview that “the Nation asserts any . . . attorney/client privilege in connection with this statement” — but apparently did not provide an Upjohn warning. Id. at *6-7. The court nevertheless relied on the four Bevill factors in determining that the Nation owned and could therefore waive the privilege: (1) the executive spoke with the lawyer “because the Nation had instructed him to do so, not on his own initiative to seek legal advice”; (2) the executive had not been clear that he was seeking individual advice during the interview; (3) the executive failed to demonstrate that the Nation’s lawyer “agreed to communicate with [him] in his individual capacity”; and (4) the executive “cannot establish the final requirement that ‘the substance of [his] conversations with [counsel] did not concern matters within the [Nation] or the general affairs of the [Nation].'” Id. at *17-18 (alteration in original) (citation omitted).

Although corporations’ lawyers should give the Upjohn warning explicitly disclaiming individual attorney-client relationships with interviewed employees, the Bevill standard provides a helpful backstop.