The Attorney-Client Privilege is important. Why ? Because the Attorney-Client Privilege protects against unwanted disclosure of confidential communications between attorneys and their clients. The obvious implication for businesses is that when they have communicated information to their attorney, there is a basis for asserting the Attorney-Client Privilege, and in turn protecting the communication from disclosure.
As an example, the discussion between two business colleagues regarding their concerns about an employment issue, or the findings of an internal investigation, would not be protected from disclosure, and would likely be discoverable. If the two colleagues were discussing those same issues with their attorney, and even if discussing between themselves the legal advice they received from the attorney (assuming they had a need to know the information), those communications would likely be protected from disclosure. Historically, the existence of the Attorney-Client Privilege is to allow and encourage the client to speak candidly to their attorney so that the attorney can give his/her best advice.
Without the benefit of the privilege, clients might not be willing to divulge all relevant information to their attorneys.
(1) There must be an Attorney;
(2) There must be a Client;
(3) There must be a Communication;
(4) The parties must have intended that the communication be Confidential; and
(5) The parties must have been seeking or giving Legal Advice as the primary purpose of the communication.
While these elements seem simple and straightforward, sometimes when the facts are analyzed, it is not clear that the Attorney-Client Privilege applies.
(1) Who is the “Attorney” for the purposes of the Attorney-Client Privilege ?
The fact that one of the parties to the communication was an attorney does not necessarily mean that an attorney-client relationship was created within the meaning of the Attorney-Client Privilege. Was the attorney licensed to practice law, and were they serving in a legal capacity in representation of the other party ?
(2) Who is the “Client” ?
Had the parties established an attorney-client relationship? The Client can be an individual, corporation or other entity.
(3) Was there a “Communication” ?
The communication can be verbal (in person or by phone), email, text, or letter.
(4) Was the communication intended to be “Confidential” ?
A communication otherwise protected as a confidential Attorney-Client Privileged communication can be discoverable if the communication is further disseminated, or discussed publicly,
(5) Were the parties seeking to give or receive “Legal Advice” as the primary reason for the communication? It would not be “legal advice,” even if the communication is from an attorney, if the attorney’s communication is actually giving business advice. This concern is particularly relevant for in-house attorneys who might serve in both legal and non-legal roles (General Counsel, as well as Chief Risk Officer or Chief Compliance Officer or Chief Human Resources Officer.)
(1) Address communications to your Attorney (in-house or outside counsel.) It is not enough for two colleagues to stamp their correspondence “privileged and confidential.” An attorney must be on the receiving end (or the originating end) of the communication.
(2) End your correspondence by asking your attorney for legal advice, a legal analysis, or legal opinion.
(3) If your correspondence is genuinely “privileged and confidential,” mark it as such. You will get the benefit of the presumption that it is privileged material. However, do not overuse the label when the advice is really business advice, not “legal advice,” or is really not confidential. Courts may decide that you just label everything “privileged and confidential” and you will lose the presumption.
(4) Copy only the people who need to know the information. Copying too many people may appear to the Court as your attempt to communicate an information update, not your communication seeking legal advice.
(5) Be careful when responding to emails that you do not inadvertently disseminate confidential legal advice beyond the group for which it was intended, and in so doing, waive the privilege. Carefully review the list email recipients, and start a new email chain when appropriate.
(6) Be careful in discussing the information from your attorney with others who do not have a need to know the information; doing so may weaken your claim of confidentiality, and therefore your privilege claim. It is generally permissible for two colleagues who have a “need to know” the information to discuss the advice they have received from their attorney without compromising the privilege claim.
Ordinarily, communications between attorneys and public relations firms or other crisis management advisors are not privileged communications, unless it can be demonstrated that the PR firm or crisis management advisor was hired to assist the attorney in giving legal advice to the client, and that the communications of the PR firm or crisis management advisor were designed for that purpose. This is an important distinction because most businesses consult with PR firms to get PR advice on how to handle a crisis, not to get assistance on obtaining legal advice.
An attorney, rather than the company, should engage the PR firm or crisis management advisor. The Engagement Letter should specify that the PR firm or crisis management advisor is being (1) hired by the attorney, for the purpose of (2) assisting the attorney in the rendering of legal advice, that (3) all communications will flow through the attorney, and that (4) the communications shall remain confidential.
The company should involve the attorney before any investigation is undertaken in order to obtain legal advice and to properly document the investigation. The attorney should manage and direct all aspects of the investigation.
When interviewing employees as part of the investigation, especially non-management employees, it is advisable to document that (1) the information sought was within the scope of the employee’s duties, and not available from management employees, and (2) that the employees understand that the purpose of the interview is for the company to obtain legal advice.
If the investigation is undertaken “in anticipation of litigation,” the company, through its attorney, may make an additional claim of protection under the Work Product Doctrine. Whereas the attorney-client privilege protects communications from disclosure, the Work Product Doctrine protects documents or material things prepared, such as written statements, memoranda, fact chronologies, mental impressions, and any other information or material assembled by attorneys (or others under their direction) in anticipation of litigation. The opposing litigant may overcome the protection of the Work Product Doctrine by demonstrating substantial need for the materials and showing there is no other access without undue hardship. Even upon a showing of this need, mental impressions, conclusions, opinions and legal theories of the attorney will likely remain protected.
When discussing legal matters, the minutes of the Board of Directors should clearly reflect that:
(1) Attorneys (in-house or outside counsel) attended the meeting;
(2) Discussions were for the purpose of providing legal advice; and
(3) Discussions were confidential, and intended to be privileged.
The company may also want to consider excluding any parties from the discussion regarding legal advice who could jeopardize the claim of privilege.
There will likely be many instances where the company will want to gather important information and documents, and have candid conversations about its available courses of action, while not exposing the company to potential liability or scrutiny. By consulting and candidly communicating with its attorney, the company can review and consider its legal options, and protect those communications from disclosure.