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The importance of attorney-client privilege is underlined, underscored, and otherwise emphasized throughout the journey of law student to lawyer. Through professional responsibility courses and the MPRE exam, the particulars of protecting the confidentiality of communications between an advocate and client is given utmost importance. So, how does it apply to in-house counsel?
The in-house attorney provides a unique case for delineating privilege because general counsel is often also considered to be part of the business team of the company. GC's often balance dual roles, denoted by their titles that include "Vice President", "Secretary", or "Director" in addition to their legal capacities.
To determine and preserve privilege when possible as your company's in-house counsel, consider the following 3 questions with every communication you initiate, respond to, or are copied on:
1. Is the primary purpose of the communication to offer legal advice?
The law has evolved in recent years to focus on the the "primary purpose" of an in-house counsel communication. Is it a legal communication--offering legal advice or educating the recipients about an application of law or regulation? Or does the communication concern business or other matters?
If the communication is legal in nature it may be protected by attorney-client privilege.
2. Who received and responded to the communication?
The distribution list is as important as the subject of the communication. In the digital age of commerce and law, communications can consist of emails, text messages, even workplace instant messaging. The court will consider all of these in determining the scope of e-discovery.
Attorney-client privilege, created through communication of legal advice, can be undermined if the message is communicated to non-privileged parties such as non-lawyers and non-executives of the business. For example, though attorney-client privilege may be eligible for an email from in-house attorney that is being sent to outside counsel as well as the company's CFO and which offers advice on a contract negotiation, the privilege may be compromised if a member from Marketing or IT is also cc'd on the communication.
3. How can privilege be preserved?
- Separate legal advice from non-legal content in distinct communications
- Send separate communications to parties who may be protected under attorney-client privilege, such at lawyers and company executives, and others.
- Clearly include a standard phrase such as "counsel is addressing the following legal issues" at the top or bottom of a communication that is intended to offer or solicit legal advice.
- Mark communications that are intended to be privileged as "confidential" and include a disclaimer, in the scenario that the communication is read by an unintended party.