The attorney-customer privilege is one such area that is very important to consider, but that is barely taught in business schools or in-house training seminars. True, you do not need to use it too much, but adding it to your vocabulary and your leadership toolbox is certainly worth.
The right of the attorney-client is a means to handle contact to your outside or in-house lawyer anytime you need to deliver a response (i.e. letter or email), so if a lawsuit were to ensue, you don’t want it to be potentially discoverable by opposing counsel. For starters, you would wish to protect such correspondence or advice from being used as testimony of subsequent proceedings during the process of a workplace investigation. If used appropriately, the attorney-client privilege right could perform this role.
The right of attorney-client privilege can be used where, among other factors, a case includes significant issues (including alleged felony claims), may arise into a lawsuit, or may have the potential to influence a large number of workers (e.g., class action status). In anticipation of conducting an investigation, it is often wise to contact the legal department when you feel that the severity of the situation can give rise to serious responsibility. So, make sure to clarify upfront whether your sensitive emails or paper transfers are covered by your in-house attorney or independent defense lawyer. In addition, if you have any concerns about whether or not the attorney-client protection can be invoked, please lean on the side of caution to secure the evidence trail as far as possible.
Remember that when it comes to invoking the attorney-client privilage right, there are no promises. Also, when you call a document “Privileged and Confidential” does not indicate that the counsel of a complainant will not contest the right and that it will not be reversed by a judge. Therefore, let caution rule the day when it comes to the sharing of emails, records, or other privileged electronic correspondence. Over all, if a judge orders the correspondence to be communicated with the other side and made part of the public record, it could come as such a surprise, even though you thought you were correctly following the steps below. The measures that follow will help improve the likelihood of a single contact or sequence of communications being able to survive judicial review and stay privileged, but without a crystal ball, since a judge has the power to disallow the privilege, you can not promise that the privilege will be retained.
That being said, at some stage in the future, you have to know how to arrange an attorney-client confidential contact to increase the likelihood of it not being reversed by a judge. Follow these general principles to do so:
Answer the attorney’s correspondence. This may be the in-house lawyer or outside counsel, but it must be presented to an attorney who gives professional advice and counsel in order for the attorney-client protection to become meaningful. When no counsel is available, the right would not protect correspondence between staff. In other words, you can’t give your non-attorney boss an email to call it “privileged and confidential” because there is no way to protect the message from legal disclosure without an attorney on the receiving end to offer legal review and advise.
By asking the solicitor for a legal advice and interpretation, terminate the contact. If you actually copy your solicitor on the separate emails without calling for official legal counsel, you can be threatened to retain the right. Instead, a judge may usually like to see that you have reached out to a counsel for a professional opinion and advice in order to retain the right. If successful, the explanation of the evidence and the proposed course of action of your counsel will be protected from the eyeballs of complainant lawyers (and from the considerations of a jury) should the case go to trial.
Mark the top of an email’s communication or subject line: “Privileged and Confidential: Attorney-Client Privileged Communication.” As soon as anyone receives the communication, this note should be conspicuous and readily viewable.
Just copy a small number of individuals who have a genuine need to know the details. Do not copy or exchange the text with others or you will forfeit the right. After all, if you copy 15 entities on the correspondence, to begin with, a judge would generally conclude that it was not all that private or proprietary. So only having too many persons in the relationship could jeopardize the right. As a general rule, aim to restrict the crowd to either either the lawyer or the lawyer plus one other participant (for example, your boss).
Unless advised to do so, do not share the details shared with the counsel with anyone. The essence of protected attorney-client correspondence is that they are extremely sensitive, narrow in dissemination, and produced on a specific need-to-know basis at a particular point in time. Failure to deliver the document under those conditions could result in the lack of immunity and eventual sharing of the material against the business as part of the claimant’s attorney’s lawsuit.