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The Attorney-client Privilege: In-house Lawyer Considerations

The right of the attorney-customer protects:

– A discussion

– Between privileged individuals (attorney, client, or in some cases, an agent)

– Made in trust

– For the client’s intent of receiving or offering legal assistance.


When the is privilege waived?

By exposing the content of the correspondence to a third party, attorney-client privilege is waived. Voluntary or involuntary waiver can be (accidental).

The nation, prospective buyers, lower-level workers, or opposition parties could be third parties (basically anyone other than the client, the lawyer, or in some cases, an agent of the client or lawyer).

Popular examples of waivers for privileges:

– Forwarding to a third party a preferential email contact.

– Sharing (in writing or orally) the content of the advice from the advocate.

– “The waiver can be “My counsel said we can’t do that.

– Includes privileged control center materials.

– Sharing with an outside investigator, investor, or certain consultants of privileged materials.


Busines or legal advice?

Separate legal and company counsel wherever possible (particularly where in-house counsel has a dual role and non-legal responsibilities).

Examples of legal functions:

– Company recommendations on existing laws.

– Analyzing actions into consistency with regulations or law-related rulings.

– Imminent lawsuit advisory.

The business functions can include:

– Negotiating contract terms.

– Attending meetings for business.

– Acting as a scribe.

In both legal and non-legal positions, when serving:

– Use titles as needed (e.g., in email signature block).

– Separate non-judicial files from legal files.

– Keep a written account of the legal implications of an encounter.


Privilege Preservation Tips

In written messages:

  • Label as “Confidential” and “Attorney-Client Privileged” or “Attorney Work Product,” all privileged communications as appropriate.

  • Essential are popular and consistent designations. The attorney checking the document must be able to identify the document as being privileged in any litigation.

  • When giving market advice, do not overuse certain names.

Limit the privileged intelligence recipients:

  • Exclude individuals that are not required for the debate.

  • Take note where third parties, including investment managers and independent auditors, are involved.

  • Where relevant, launch a new email chain.

At board sessions, invitations for conventions and other meetings:

  • When debating legal matters, the minutes of the board meeting should explicitly state that:

  • In his/her position as legal adviser, in-house counsel attended.

  • Discussions were carried out in order to include legal advice.

  • Discussions were secret and were supposed to be privileged.

When at conventions or on phone calls:

  • Take detailed notice on who is in attendance.

  • Mark them as privileged if only aspects of conversations are privileged.

  • Consider removing any spectator or third party whose participation can exclude a claim to privilege from privileged discussions (investment bankers, auditors, consultants).

In relationships with PR and crisis management companies:

  • Communication between lawyers and a public relations/crisis management organization is generally not deemed to be protected until the party seeking the privilege can establish that the communication was necessary for the client to gain informed legal advice.

  • Outside counsel should engage the CM/PR agency rather than the business and correspondence should pass to outside counsel.

  • In addition, distributing the work product prepared in preparation of lawsuits with CM/PR companies would not waive the right of the work product.

When negotiating deals and conducting them:

Drafts of Treaties/Documents are favoured if:

  • The draft was drawn up by, with or at the behest of lawyers, AND

  • Shared just with the counsel and the customer.

  • The attorney-client right is waived once a draft is exchanged with a counterpart to a transaction.


Remember the effect on the attorney-client rights of an acquisition

When new management begins to administer the pre-existing corporate organization and handle its affairs, new management is in the shoes of previous management and can monitor the rights of the attorney-client with regard to the actions of the corporation.

For example, where only a discrete collection of properties has been acquired and the acquirer does not seek to control or administer the pre-existing business, it is impossible that the attorney-client privilege will pass to the acquirer.

When performing internal and official inquiries:

  • Involve lawyers at the beginning to seek legal guidance and properly log it. Both inquiries should be managed by in-house attorneys (where necessary, with the help of outside counsel).

  • Communications made from and to non-attorney personnel acting as lawyers’ agents in internal proceedings are protected by the right of the attorney-client.

  • In order to be privileged, any contact made as part of an administrative inquiry must be exclusively or largely lawful in nature.

In order to be privileged, an investigation report which is submitted to a prosecutor or otherwise authored by a lawyer must still be mainly or exclusively of a legal nature.

In most cases, in future civil suits, creation of information to the Government waives privilege as to that information.

Warnings from Upjohn case should contain the following:

  • The counsel reflects the business, not the worker; 

  • The organization has exclusive discretion to suspend privilege and to decide how data should be used.

  •  The attorney-client privilege protects the contact with the attorney; and

  • Restrict employee communications to matters within the framework of their jobs.