The attorney-client privilege is one of the most ancient common law privilege for confidential communications. Codified in Rule 501 of the Federal Rules of Civil Procedure, the purpose of this privilege is to encourage open and transparent communication between the attorneys and their clients. The privilege recognizes that sound legal advice depends on a lawyer being fully informed by the client. Not only does it protect the lawyer’s professional advice but also the information communicated by the client.
Understanding the Client-Attorney Relationship
Corporate counsel should always be able to clearly point to who the client is. Unless both the client and attorney are clear on who is the client, an attorney will have difficulty protecting the attorney-client privilege. Corporate counsel represents the business entity, but he or she may also represent affiliates such as individual officers, directors, shareholders, and/or employees. Once an attorney has identified who the client is for a particular matter, he or she should clearly communicate that to the client and any other constituents who may incorrectly assume they are also clients. In some situations, it may be more appropriate to put that communication in writing.
Email Communication Trails
Another key consideration when protecting the attorney-client privilege is email policies and procedures. If you ever receive emails asking for legal advice and soliciting your legal opinion, you should consider having a policy in place on how to seek legal advice. Putting in keywords such as “need legal advice” or “request for legal advice” will help preserve the privilege. It is also important that email requests for legal advice should be addressed specifically to an attorney rather than sent to a business person and with just a cc to the attorney.
How attorneys communicate via email is also important. In order to avoid breaking the attorney-client privilege, email communications should not be intermingled with non-legal matters. Put simply, privileged communications and non-privileged communications should be kept in separate email chains as much as possible.
Finally, overuse of privileged communication language on obviously non-privileged communications can dilute the protection when it is really needed on actual privileged information.
Policies and Written Communications
Once a document has been marked confidential, it must be treated and maintained as such in order to preserve the protection going forward. Moreover, not every international jurisdiction recognizes the attorney-client privilege between an in-house lawyer and a business entity. For example, European Union law does not have such a privilege. Company policies may be able to help employees and other personnel become aware of circumstances in which the privilege is expected to apply by the business entity and emphasize the importance of the privilege itself. In-house counsel should use the resources at his or her disposal to research the local law and how it affects attorney-client privileged communications, if at all. Finally, in scenarios in which it is vital to preserve the privilege, in-house counsel should consider involving outside counsel in the communications.