A critical skill for any corporate counsel is the ability to assess which internal conversations are protected by attorney-client privilege and take steps to ensure that privilege remains unbroken. For decades, courts have used various common law tests to determine whether attorney-client privilege applies to conversations between corporate counsel and a company’s former employees, such as the multi-factor analysis established by the Upjohn decision in 1981. But a ruling from Washington state last fall turned the long-accepted doctrine on its head. The Washington Supreme Court decision in Newman v. Highland School District adopts a blanket rule that privilege does not extend to communications with employees who have left the company. In light of this and the risk of similar privilege-limiting decisions from other jurisdictions, any privileged communication with the employee should occur before the employee departs, if possible, and any communications with a former employee should be handled as if it is not privileged.
Danger of Wearing Two Hats
