General Rule: If an in-house counsel is acting in her capacity as an attorney, the attorney-client privilege applies. Where, however, counsel is acting as a business advisoror has only limited involvement, the privilege does not apply.
The basis for the attorney-client privilege is the principle that clients and attorneys should be able to communicate in a free and frank manner. 1 The privilege belongs to the client and is a protection provided by various statutes and common law for certain communications between the client and the client’s attorney to encourage full disclosure of information between the client …
Apr 18, 2018 · It is a well-established principle in the United States that a corporation possesses an attorney-client privilege and that in-house counsel are lawyers for this purpose. See, e.g., Bruce v. Christian, 113 F.R.D. 554, 560 (S.D.N.Y. 1987); Valente v. …
Aug 07, 2019 · The attorney-client privilege protects: A communication; Between privileged persons (attorney, client, or in some cases, an agent) Made in confidence; For the purpose of obtaining or providing legal assistance for the client. How is privilege waived? Attorney-client privilege is waived by disclosing the substance of the communication to a third party.
Privilege & the In-House Counsel 2 When a client consults with an attorney for the purpose of obtaining legal assistance, all confidential communications of the client in furtherance of that end are protected by the ACP. Elements: • Where legal advice of any kind is sought • From a professional legal advisor in his capacity as such
When in-house counsel are performing what they consider to be legal services, they should always remember to make a record of that fact. In correspondence and memoranda, it will certainly be helpful to describe the legal considerations which are involved in the subject matter. For example, if there is a concern that litigation may develop, the memorandum should say so. In-house counsel should also document the rationale for a memorandum's distribution in order to deflect a waiver argument; in other words, the writing should make clear why each recipient needed to get the memorandum.
In order to maximize the possibility of a successful assertion of the attorney-client privilege when, as often happens these days, a corporate problem evolves into litigation, in-house counsel would be well-served to examine their company's routine business practices and make any necessary changes. For example, in-house counsel should use labels on written communications with corporate employees. When writing a memorandum to an employee, a legend should be included such as "REQUEST FOR FACTS SO THAT LEGAL ADVICE CAN BE GIVEN." When an employee sends a memorandum to in-house counsel, it could be helpful for the memorandum to contain prominent language such as "FOR THE PURPOSE OF RECEIVING LEGAL ADVICE."
In-house counsel should also document the rationale for a memorandum's distribution in order to deflect a waiver argument; in other words, the writing should make clear why each recipient needed to get the memorandum. There are also a number of "don'ts" which in-house counsel should consider.
Specifically, counsel was asked to disclose the recommendations made to his employer during the negotiations about certain contractual provisions . It came as a surprise to many litigators that the company's assertion of the privilege relating to these conversations was rejected.
After all, just consider the corporate titles typically given to in-house lawyers: Vice President and General Counsel, Secretary and Assistant General Counsel, Assistant General Counsel and Director of Governmental Affairs. These dual roles lead to an obvious question whenever the attorney-client privilege is asserted for in-house counsel: which hat, business or legal, was the lawyer wearing when he spoke to the corporate executive? Or to put it another way, was the corporate executive seeking and receiving legal advice or business advice in the conversation with the in-house lawyer?
When writing a memorandum to an employee, a legend should be included such as "REQUEST FOR FACTS SO THAT LEGAL ADVICE CAN BE GIVEN.". When an employee sends a memorandum to in-house counsel, it could be helpful for the memorandum to contain prominent language such as "FOR THE PURPOSE OF RECEIVING LEGAL ADVICE.".
One situation involves former employees and whether communications had with them while employed can be protected by the attorney-client privilege because, at the time of their employment, they were either control group members or were involved in the subject matter which evolved into litigation.
Attorney-client privilege is waived by disclosing the substance of the communication to a third party. Waiver can be voluntary or involuntary (accidental).
What is privileged? The attorney-client privilege protects: A communication. Between privileged persons (attorney, client, or in some cases, an agent) Made in confidence.
Examples of legal functions: Advising company on existing law. Analyzing conduct for conformity with law or judgments regarding law. Advising on imminent litigation.
Sharing (in writing or orally) the substance of the lawyer’s advice.
In board meetings, conference calls and other meetings: When discussing legal matters, Board meeting minutes should indicate clearly that: In-house counsel attended in his/her role as legal advisor. Discussions were for the purpose of providing legal advice. Discussions were confidential and intended to be privileged.
Ordinarily, communication between counsel and a public relations/crisis management firm is not considered privileged unless the party asserting the privilege can show that the communication was necessary for the client to obtain informed legal advice.
Consider excluding from privileged discussions any observer or third party whose presence may prevent a claim to privilege (investment bankers, auditors, consultants).
The “attorney-client privilege” protects communications between the lawyer and the client. With limited exceptions, the privilege establishes the right of the client “to refuse to disclose, and to prevent another from disclosing, a confidential communication between client and lawyer”. Evidence Code section 954.
In-House Counsel typically has a dual function, providing both business and legal advice. However, the role of In-House Counsel is fluid and can change from moment to moment depending on the client’s needs, at times being more involved in business advice, and other times, more involved in legal advice. In this context, it is important to understand to which communications the attorney-client privilege applies, and to take the necessary steps to preserve the privilege.
Communications with a mixture of legal and business are typically entirely privileged in California. Companies cannot “immunize” communications simply by copying or funneling emails through In-House counsel. The presence of a third party during a confidential communication (in-person presence or inclusion in an email or other written communication) ...
When a company finds it necessary to perform an internal investigation for any reason, it should first establish the scope of the intended investigation, how and by whom it will be handled, and limit the investigation to a “need to know” basis. When conducting an internal investigation, the employee being questioned must be made aware that he/she is being questioned in order for the company to obtain legal advice, and that the company, not the employee, is the holder of the attorney-client privilege.
The presence of a third party during a confidential communication (in-person presence or inclusion in an email or other written communication) can create a waiver of the attorney-client privilege, unless the third-party is “necessary” to the communication.
Confidential In-House Counsel attorney-client communications are deemed privileged unless the “dominant purpose” was something other than legal advice.
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.
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.
窶彈T]he privilege is limited to confidential communications with an attorney acting in his professional legal capacity for the express purpose of securing legal advice. As a general rule, an attorney who serves a client in a business capacity may not assert the attorney-client privilege because of the lack of a confidential relationship. Thus, ordinary business advice is not protected.窶・/font>
Principally because in-house counsel often perform non- legal business functions within their organizations and the law requires that privilege analysis distinguish the two
See e.g. Giffin v. Smith, 688 S.W.2d 112 ( Tex. 1985) (General counsel's communications found not to be privileged despite his role in corporate investigation because there was no evidence that the communication was confidential). 12
Courts have repeatedly held that there is no distinction between the standard to be applied for in-house and outside counsel for purposes of the attorney-client privilege.
Where, however, counsel is acting as a business advisoror has only limited involvement, the privilege does not apply.