A critical issue faced by in-house counsel—across every sector and experience level—is how to keep their communications privileged. In-house counsel are not only companies’ trusted legal advisors and regulatory gatekeepers, but also trusted business advisors. While there are obvious cost and efficiency benefits of this model, the dual role also has created potential privilege pitfalls for in-house counsel and company employees. They should take the following steps to maximize privilege protection:
1. Do Not Assume That Every Communication Involving In-House Counsel Is Privileged
Many employees wrongly assume any communication with any attorney is privileged. A communication is attorney-client privileged only if it meets each of the following three elements: (i) is between an attorney and a client; (ii) seeks or provides legal advice; and (iii) is made and kept in confidence. Documents that contain an attorney’s mental impressions, conclusions, opinions or legal theories also are protected under the work product doctrine, but only if those documents are prepared in anticipation of litigation.
