Q: Dear Ethics Lawyer, I am a three-year lawyer who recently went in-house after being an associate at a law firm. I now have some issues. I work with and for a more senior lawyer who is the Deputy General Counsel for our employer, the number two in our law department. Under his direction, I have been constructing a privileged log for a large matter we’re involved in. He told me to claim privilege as to any email or document that has a lawyer’s name on it or in it, whether or not it was seeking or providing legal advice, but then describe the document on the log as involving communication with the lawyer about legal advice. He said this is how it’s done all the time and it’s perfectly appropriate. I don’t think this is true, but can I rely on his direction to do this? I need the job and he won’t be there forever.
A: Many lawyers of your experience level have really good mentors in their firms or law departments. It sounds like you do not. Let’s take this in steps. First, your DGC’s instruction to claim privilege on documents you know not to be privileged (they don’t involve legal advice), and then to create a false privilege log would cause you to violate various ethics rules, including Model Rules 8.4(c)(engaging in conduct involving dishonesty or misrepresentation) and 3.4(a)(obstructing another party’s access to evidence). While as a subordinate lawyer, you would be entitled to act in accordance with a supervisory lawyer’s “reasonable resolution of an arguable question of professional duty,” Model Rule 5.2(b); the blatant instruction to falsify a privilege log would not fall into that category. It also may trigger a duty by you to your client to report the matter up the corporate ladder if the DGC is engaging in this conduct regularly, as it could come back to cause substantial injury to the organization in the context addressed by Rule 1.13(b).