Hi, and welcome back to Inside Track, your guide to what's happening in-house. The year 2018 is just getting started, but we've already seen plenty of news that should make in-house counsel sit up and take notice. There's Intel's chip problem and its CEO's questionable stock sales, as well as a federal judge's decision to keep the DACA program in place while a legal challenge moves forward. In this week's edition, we'll focus on the removal of website accessibility from the DOJ's to-do list and how choice of law provisions can impact attorney-client privilege.

I'm in-house reporter Jennifer Williams-Alvarez. If you have questions or tips, you can email me at [email protected] or find me on Twitter at @jenkayw.

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What's happening –

WEBSITE ACCESSIBILITY NIXED. SO WHAT? The Department of Justice announced at the end of last year that it had officially withdrawn plans to address website accessibility. Does this change the status quo for companies?

➤ Refresher. In 2010, the DOJ revealed plans to provide guidance on website accessibility. Since then, these efforts have faced a number of delays and setbacks, including that Title III regulations, which would apply to public accommodations, were put on the “inactive list” in July 2017. With the latest move, the DOJ explained that it is considering whether it's “necessary and appropriate” to regulate access to websites.

➤ Surprising? Not really. When President Trump implemented his 2-for 1 regulatory policy, the odds were “fairly low” that the DOJ would issue regulations on website accessibility, said Kelley Drye & Warren partner Gonzalo Mon in an email.

➤ Going forward. But even with this latest news on website accessibility, this is still likely to be an issue companies have to deal with. “As a practical matter, the lack of clear regulations means that plaintiffs attorneys are going to continue to exploit the lack of clarity on the federal level to bring these suits,” Mon said, so at a minimum, “companies should try to figure out whether their websites are accessible to people who use screen readers.”

Mon added that most settlements in this area define the appropriate level of accessibility by looking to the Website Content Accessibility Guidelines 2.0 Level AA published by the Web Content Accessibility Initiative of the World Wide Web Consortium.

IS SOCIAL MEDIA “GENERALLY KNOWN?” The American Bar Association recently issued a formal opinion on whether news disseminated through various mediums can be considered part of the “generally known” exception to former client confidentiality. Essentially, if info related to representation of a former client is considered to be generally known, the exception allows lawyers to use that info to the former client's disadvantage. What jumps out at me from the ABA's opinion is a note that news on social media may, at times, be generally known.

➤ Big news? Turns out, this isn't “particularly groundbreaking,” according to Avvo chief legal officer Josh King. “Once something about a former client is 'generally known,' an attorney can discuss that matter, or use it in a way [that is] adverse to the client,” he said in an email. “Social media offers yet another route for something to become 'generally known.'”

➤ Don't “play up to the line,” though. “That said, I think my perspective on this topic would be shared by most other in-house counsel: We'd rather the lawyers we hire not play up to the line on this,” King said. “Just because something CAN be done under the rules doesn't mean it SHOULD be done. Most clients would prefer that their lawyers show more discretion in discussing our affairs—to say nothing of using such disclosures against us.”

King's takeaway: “Good practice by lawyers would be to think about what the client would prefer, and not simply what the Rules may allow.”

Lawyers out there, how do you handle this exception?

“We need to do a lot more to address diversity issues in the tech sector … There is no substitute for getting more women in more positions of leadership. I just don't believe that any institution that has a strong representation of women at the leadership level is likely to face some of the problems we've been reading about.”

- Microsoft chief legal officer Brad Smith speaking to CNBC about big issues in tech, including diversity and inclusion.

NET NEUTRALITY FIGHT CONTINUES. WHO'S SAYING WHAT? Companies and politicians are still venting about the FCC's decision to roll back net neutrality rules. Mozilla, for one, told Recode that it's “figuring out the best way to engage.” Here's more of the latest:

➤ “The final version of Chairman Pai's rule, as expected, dismantles popular net neutrality protections for consumers,” said Internet Association president and CEO Michael Beckerman in a statement announcing the lobbying group's intent to join the fight. “IA intends to act as an intervenor in judicial action against this order and, along with our member companies, will continue our push to restore strong, enforceable net neutrality protections through a legislative solution.”

➤ Netflix announced its plans via Twitter.

➤ Etsy called the FCC's decision to overturn net neutrality regulations “deeply disappointing.” In a statement, the marketplace's senior director of global advocacy and policy, Althea Erickson, said: “Etsy is continuing to fight for a free and open Internet; that's why we intend to challenge Chairman Pai's order in the courts.”

Question of the week –

As loyal readers know, we answer your questions in every newsletter by going to top practitioners. If you have a pressing question you'd like answered, send it my way.

This week's question:

What do I need to know about choice of law clauses and attorney-client privilege?

➤ Many attorneys aren't necessarily thinking about choice of law clauses specific to attorney-client privilege. When I have spoken to in-house lawyers, they share my prediction that any concern over applicable privilege law would fall on deaf ears if the lawyers tried to contractually select another jurisdiction's law for that narrow purpose. Instead, either the client or the outside corporate lawyers select the choice of laws that they want for substantive issues – not even thinking of the peripheral possible effect on privilege law.

➤ In most states, this might not make a huge difference. Somewhat surprisingly, there are not many differences among states' attorney-client privilege laws, or between the privilege approach [in most states]. The main difference is several states' (most importantly, Illinois') reliance on the “control group” standard for privilege protection in a corporate setting. Under that limited approach, the only corporate employees who can enjoy privilege protection when communicating with the corporation's lawyer are those in the upper management or middle-level folks assisting upper management. Most states follow what is called the Upjohn standard, under which the privilege can protect communications between a corporation's lawyer and any level of employee who has information the lawyer needs.

So except for an occasional situation, it probably is not worth worrying too much about which state's privilege law applies. But sometimes the stakes can be high.

➤ A case to illustrate how high. In 2010, a state court in Delaware considered whether Delaware or Massachusetts privilege law should apply to communications that occurred in the latter state. The parties had entered into an agreement with this choice of law language: “This Agreement shall be governed by and construed in accordance with the laws of the State of Delaware, regardless of the laws that might otherwise govern under applicable principles of conflicts of law thereof.” Looking at that provision, the court applied Delaware law, which meant that the communications in question were protected, while Massachusetts law would not have protected them. A 2016 decision out of New York similarly illustrated that choice of law provisions can play a critical role in whether access to certain communications is granted.

- Thomas Spahn, partner at McGuireWoods, who regularly advises Fortune 500 companies on preserving attorney-client privilege and work product protections. (Edited for clarity and length.)

Don't miss –

Thursday, January 11. This year, the CEO pay ratio disclosure rule goes into effect, requiring public companies to disclose the pay ratio between the CEO or another principal executive officer and the company's median employee. The American Bar Association is offering a webinar tomorrow that will look at how to select the right compensation measures as well as at issues that may arise.

Wednesday, January 17. Lawmakers will once again hear from Alphabet, Twitter and Facebook. This time, the Senate Commerce Committee plans to grill the tech giants about extremist propaganda on social media platforms and the steps that are being taken to thwart the spread of extremist content. Heads of public policy from all three companies are slated to field questions from lawmakers.

Wednesday, January 17. The New York City Bar Association is hosting a morning event at which Dr. Arin Reeves, president of Chicago-based research and consulting firm Nextions, will discuss how the legal profession can build diverse teams. Register here.

On the move –

See you never. In the midst of the ongoing employee shake-up going on over at Wells Fargo, Deanna Lindquist, a deputy general counsel overseeing human resources, has left the company. As my colleague Sue Reisinger reports, Lindquist's departure follows that of the company's CEO, general counsel and the head of community banking.

Back to the firm, part II. A few briefings ago, I wrote about a former CLO who made the move to a firm. While not necessarily a common move in years past, you might recall that I mentioned seeing this more and more often. Well, here we are again, with Aaron Briggs' move from General Electric to Gibson Dunn. Briggs, who was GE's executive counsel of corporate, securities and finance, told my colleague Caroline Spiezio that because he started his career with at Gibson Dunn, he feels like this is “a return home.”

Congratulations on your new job! Greeting card company Hallmark has found its new general counsel in Jill Marchant. Stepping into the new role on Jan. 16, Marchant replaces current general counsel Brian Gardner, who is retiring from the company at the end of March.

➤➤ Thanks for reading. You can check out other great briefings from my Law.com colleagues here.