In reaction to COVID-19, as lawyers across America are transitioning to a modern work-from-home setting, so are corporate legal departments. Legal consultation and consultations that have traditionally taken place in face-to-face office and conference room sessions will now take place by email, teleconference or video conference.
Any firms may consider recording such meetings to satisfy staff who are juggling working from home and taking care of children in the light of school closures, and thereby having a permanent record of them.
In addition, a spike in business warnings, bulletins, advisories and updates has been encouraged by the ever-evolving concerns surrounding the pandemic. As a consequence, the number of potentially discoverable records would be expanded with this improvement in contact strategies.
It is not unusual for clients and staff to believe that any contact with a lawyer or in-house attorney would be deemed “confidential” or “privileged.” However, the extent of the right of the attorney-client is far smaller.
Generally, the right of attorney-client extends to the defense of written or oral correspondence that match any of the following factors:
– The contact between a client and an attorney or an attorney’s representative;
– Confidential information is included in the notice;
– The notification shall be rendered in the absence of a non-privileged third party;
– The contact is made for obtaining legal advice;
– The right was not waived elsewhere.
As a result of the dual role they play as legal consultants and company advisors, in-house counsel faces a particular complication relating to attorney-client privilege.
An in-house attorney would usually have to explain that the correspondence to be secured were made for the purpose of offering legal advice and for people covered by the arrangement between the attorney and customer.
The rule of thumb for the attorney-client privilege is that professional correspondence with attorney must be for legal advice and it is one of the key factors for the communication.
As noted above, the in-house lawyer of a company holds many hats, and often attends seminars, he/she is included on email threads, or offers recommendations or recommendations on general corporate issues that are not inherently tied to its abilities as an attorney.
The role of in-house lawyers in certain general business decisions would normally not be covered by privilege. Even in a case where the attorney, along with legal advice, offers business advice, only legal advice will be privileged.
If the parties are involved in an attorney-client partnership is the second criterion when deciding whether attorney-client privilege attaches to a contact.
There is only one client with the traditional in-house attorney: the firm. The legal opinion must be for the good of the company as a whole in order for privilege to be applied. While in-house attorney is not involved in attorney-client relationships with particular staff, owners, executives, officers, or shareholders of the company, these persons also meet on behalf of the company with counsel.
This suggests that it is often difficult to decide if a contact is made within the framework of the partnership of the attorney with the firm. Generally, a judge is expected to decide that an attorney-client relationship occurs where the contact concerns a legal matter that actually impacts the firm and is made by the attorney and an employee working on behalf of the company.
Where a disagreement occurs over the extent and applicability of the right of the attorney-client privilage or work product privilege, the courts will perform a fact-intensive review of the correspondence, text, or data production. In addition to affidavits and/or evidence about their development, this also includes an in-camera examination of the records and facts at issue. As a consequence, in determining the existence of a right, the records themselves would play a significant part.
In order to help lawyers defend sensitive and sensitive correspondence and documents, the following guidelines and principles can be used:
Evaluate if it is appropriate to communicate in writing. Instead of verbal communication, as the number of phone calls and teleconferences grows, so will the tendency to default to emails and text messages. In most situations, the secrecy of the phone call or video conference would be best maintained. Know that an improvement in written messages is an increase in potentially discoverable data before clicking send on an email or text message.
The business is the client of an in-house attorney. In-house attorneys should determine whether the entity they are dealing with is protected by the attorney-client agreement prior to representing staff or business subsidiaries and associates. Usually, where the contact is with a shareholder, director, or officer working on behalf of the organization, a preferential arrangement is most likely to be identified.
In general, the higher the number of parties involved in the correspondence, the less possible it would be to view the contact as “confidential.” Thus, it is important to ensure that privileged communications are only made to persons who require the information or guidance to be accessed. It is best to refrain from involving unwanted participants in interviews, events, or email threads to prevent problems of privilege. Even if those parties are inside the organization, the presence of too many parties as receivers of an email or written message raises the potential that the communication will be revoked due to exposure to a third party. It is often common practice to alert parties against sending the message to or sharing its contents with any third party in a privileged email or written communication.
Evaluate if contact is the knowledge to be safeguarded. The right of the attorney-client only covers the interactions between the client and a lawyer and/or his or her assistant. However, records added to emails and reports from meetings and/or calls are not correspondence and will not be shielded as they are not secured by the privilege of the job object.
Where needed, in-house counsel should consider correspondence and discussions as protected attorney-client. A “Privileged and Confidential” notation should have email subject lines. Before the meeting begins, calendar invitations to gatherings and teleconferences may be used to recognize attorney-client privilege. In addition, in-house attorneys can also recommend defining the legal problem at the conference to be addressed. Proving that the contact was made for the purposes of securing legal advice is a crucial issue in establishing privilege. You put yourself in a stronger position to safeguard correspondence by recognizing the legal dilemma at the beginning.
The attorney job product doctrine should be used, in addition to the attorney-client privilege, to protect documents prepared in advance of prosecution or for trial. Communicating the litigation is expected at the start of an investigation will help establish the nature of work product privilege.
In order to satisfy the availability of their workers, some firms may consider recording meetings and teleconferences. Consider the nature of the conversation, the number of members and speakers, and any relevant sensitive material that might be addressed, before documenting any meeting or session. There could be no way to monitor the sharing of sensitive information in workshops and conferences that are meant to allow for the exchanging of ideas and open dialogue. It will be better not to report it if there is the expectation that legal counsel will be requested or offered during a meeting or conference.
It is not unusual for a attorney to receive an email message on a specific problem, but it is omitted and/or not used in subsequent email discussions. Privilege is best covered by having the attorney active in the negotiation and correspondence during the process. For correspondence or gatherings with little to no counsel presence, courts are unable to apply attorney-client privilege.
As long as lawyers are vigilant and take additional measures to mitigate harm when engaging with or counseling clients, social distancing does not need to lead to an uptick in privilege problems.