Attorney-Client Privilege in the Corporate Counsel Context: Tips for Preserving the Privilege | Practical Law

Attorney-Client Privilege in the Corporate Counsel Context: Tips for Preserving the Privilege | Practical Law

This Legal Update suggests ways for in-house counsel to advise employees on the attorney-client privilege and protect against its waiver.

Attorney-Client Privilege in the Corporate Counsel Context: Tips for Preserving the Privilege

by Practical Law Litigation
Law stated as of 11 Jul 2016 • USA (National/Federal)
This Legal Update suggests ways for in-house counsel to advise employees on the attorney-client privilege and protect against its waiver.
The attorney-client privilege serves a vital purpose in protecting confidential communications between an attorney and client from disclosure to third parties. In the US, the attorney-client privilege can apply to communications with in-house counsel. However, the privilege is not absolute. It can be complicated, fragile, and difficult to understand, especially in the in-house context.
Employees often believe that their communications with in-house counsel are privileged when in fact they are receiving business advice, not legal advice. Other employees mistakenly think that having in-house counsel present during a meeting or copied on a communication to another businessperson invokes the privilege even if legal advice is not being sought or given.
Here are some tips to help employees understand the proper use of the attorney-client privilege:
  • Having a lawyer present does not mean the privilege automatically attaches. Copying a lawyer on a communication or inviting an attorney to a meeting does not, by itself, create a privilege. At a minimum, depending on the jurisdiction:
    • the communication or meeting must be for the purpose of obtaining legal advice; and
    • everyone privy to the communication must be a lawyer, a client, or someone who counts as the "functional equivalent" of a client (such as an independent contractor).
  • The lawyer must be acting as a lawyer, not in a business capacity. For a communication to be privileged, it must relate to legal advice. The privilege does not protect business communications, even if they involve a lawyer. Communications made for the purpose of obtaining business advice is never privileged. This issue is especially complicated with in-house counsel, who often serve a dual role as both lawyer and businessperson.
  • Even after the attorney-client privilege attaches, it can be waived. Waiver commonly occurs when a communication is shown to someone outside the attorney-client relationship. To better protect against potential waiver, in-house counsel should provide company employees with certain guidelines, for example:
    • do not discuss legal issues in public, or with family or friends;
    • do not disclose information contained in a privileged email or show the email to third parties;
    • do not "cc" or "bcc" third parties on an otherwise privileged email;
    • if an employee does not need to know about the legal communication, do not copy that employee;
    • do not include outsiders in otherwise privileged meetings; and
    • if unsure about whether a communication may destroy the privilege, ask in-house counsel.
  • The lawyer represents the company, not individual employees. In-house counsel rarely, if ever, represent employees in their individual capacity. They represent the company. While communications between an employee and in-house counsel may be privileged, it is the company that controls the privilege, not the employee.
For more information on the attorney-client privilege, see: