About the Speaker
Tom practices as a commercial litigator. He regularly advises a number of Fortune 500 companies on such issues as properly creating and preserving the attorney-client privilege and work product protections when conducting corporate investigations, when hiring outside consultants, when dealing with the government, and during other daily and extraordinary situations. Tom has assisted in creating and defending privilege logs in many product liability and commercial litigation matters. He also advises in-house counsel on ethics issues, including conflict of interest, confidentiality, and dealing with corporate wrongdoing.
Tom was selected as the 2013 metro-Washington DC "Lawyer of the Year" for "Bet the Company Litigation" by The Best Lawyers in America (Woodward/White, Inc.).
Tom has written several editions of a book on the attorney‑client privilege and the work product doctrine, as well as books on defamation and ethics issues facing in‑house lawyers. He has published several book chapters and more than 75 articles in Virginia and national publications on numerous topics. The ABA's General Practice Section honored Tom’s article on “Litigation Ethics in the Modern Age” as one of the "Best Articles Published by the ABA" in 2004.
Since 1988, Tom has spoken at more than 1,000 CLE programs throughout the United States, and in several foreign countries. In March 2009, Tom was invited to Reykjavik, Iceland, to discuss an ethics issue on Iceland's leading news and interview show. In July 2012, he was invited to Erbil, Iraq, to participate in a panel assisting the Kurdistan Bar Association in establishing ethics rules.
Tom has served on the ABA Standing Committee on Ethics and Professional Responsibility, and on numerous Virginia State Bar and Virginia Bar Association committees. As chairman of the Virginia State Bar Committee on Publications/Public Information, Tom led the committee in developing public service announcements articulating lawyers' benefit to society, which were extensively published in Virginia, and purchased by the bars of six other states and the Canadian Bar Association. As chairman of the Virginia Bar Association Commission on Professionalism, he acted as principal drafter of Principles of Professionalism that have been endorsed by the Virginia Supreme Court and the Virginia Attorney General's Office, and commended by both of Virginia's federal district courts.
After personally reading, summarizing, and categorizing over 1,600 Virginia Bar Legal Ethics Opinions, he made his work available to the public online (with a link from his McGuireWoods bio page).
8:30 a.m Registration
8:55 a.m. Welcome and Opening Remarks
9 a.m. Attorney-Client Privilege: Basic Principles and New Trends
The attorney-client privilege may be the most important legal doctrine every lawyer must know, because it potentially impacts every communication with clients and third parties. This program will cover all of the key privilege elements: clients (including joint clients, the "fiduciary exception" and client agents/consultants); lawyers (including lawyer agents/consultants); content (including the key "legal advice" requirement, distinguishing between legal and business advice, the special rule applicable to client-lawyer communications and lawyer-client communications); context (including the impact of third parties' presence, the "common interest" doctrine and the client's intent to disclose); waiver (including the power to waive, intentional and inadvertent waivers, new Rule 502, implied and "at issue" waivers and the risk of a subject matter waiver).
10:30 a.m. Mid-morning Break
10:45 a.m. Work Product Doctrine: Basic Principles and New Trends
The work product doctrine differs dramatically from the attorney-client privilege, and both litigators and transactional lawyers must know the distinctions. This program will cover all of the basic elements: who can create protected work product; the three basic elements ("litigation," "anticipation" and "motivation"); fact and opinion work product (including the "Sporck" doctrine); the standards for overcoming fact and opinion work product; the dramatically different waiver rules governing work product; the work product implications of dealing with non-testifying and testifying experts.
12:15 p.m. Lunch (on your own)
1:30 p.m. Asserting and Litigating Privilege and Work Product Protections
Asserting and litigating both the attorney-client privilege and work product protection involves a number of issues with which lawyers should be familiar. This program will cover all of the important topics: sources and choices of attorney-client privilege and work product law; responding to discovery (including collection and withholding of documents, objections and redaction); privilege logs; evidentiary support; litigation issues (including standing, burdens of proof, contention interrogatories, deposing other lawyers and "discovery about discovery"); appellate review.
2:30 p.m. Afternoon Break
2:45 p.m. The Ethics of Email and Social Media: A Top Ten List
3:45 p.m. Late Afternoon Break
4:00 p.m. The Ethics of Email and Social Media Continued
This interactive program will use hypotheticals to explore the unique and quickly evolving issues involving lawyers' use of electronic communications such as email and social media, including: (1) Creation of the Attorney-Client Relationship (including the effect of an unsolicited email from a prospective client); (2) Communications with Clients (including the ethical propriety of using unencrypted email, and the effect of clients asking someone to print off their emails); (3) Communications Within a Corporate Client (including courts' analysis of intracorporate communications, the effect of widespread intracorporate circulation, document creation, and whether a corporation's lawyer can read an adverse employee's personal privileged communications found on company servers); (4) Communications with Adversaries (including use of "reply to all" when communicating to an adversary, the responsibilities of lawyers receiving inadvertently transmitted communications, and metadata); (5) Working with Others (including working with service providers and outsourcing of discovery work); (6) Discovery (including searches of adverse parties' and witnesses' social media, and the privilege effect of an inadvertent production of a privileged document); (7) Jurors (including jurors' independent Internet research); (8) Judges (including judges' independent Internet research and "friending" of lawyers); (9) End of the Attorney-Client Relationship (including the effect of marketing); (10) Marketing (including the marketing rules' application to "blogs," and bars' characterization of the intrusiveness of electronic marketing).
5:00 p.m. Adjourn