As in-house counsel, all of your communications are protected, right?
Not so fast.
Georgia courts have consistently recognized that the attorney-client privilege applies to communications between in-house corporate counsel and the organization’s management and employees. But not all in-house counsel communications are protected.
The attorney-client privilege does not simply follow an attorney by virtue of his or her profession. It extends only to confidential communications made for the purpose of getting or giving legal advice.
Must Be Confidential
The attorney-client privilege does not attach to communications made by in-house lawyers which are not of a confidential nature. Within the context of corporate communications, the issue of confidentiality is not always straightforward.
To be considered confidential, the communication must not only not be disclosed to anyone outside the organization, it also must not be disclosed to anyone who was not authorized, expressly or by business practice, to receive such advice and act upon it. If a communication is disseminated beyond those employees who “need to know” its contents, the privilege will be lost. A communication with in-house counsel regarding subject matter within an employee’s scope of employment would be considered “need to know.”
Must Be for Legal Advice
Obviously, to be protected by the attorney-client privilege a communication must relate to the giving or receiving of legal advice. In-house counsel typically serve in dual roles, frequently being called upon to give business, as well as legal, advice. And the line between legal advice and business advice is sometimes difficult to draw. Relevant factors include the nature and purpose of the communication and how and to whom the communication was made.
Which Employees Are Covered?
Not all employee communications with in-house counsel are covered by the privilege, particularly those by lower-level employees. Georgia has adopted a “modified subject matter” test to analyze whether a communication between an employee and in-house counsel is covered. Under that test, a communication is privileged if:
- the communication was made for the purpose of securing legal advice;
- the employee making the communication did so at the direction of his or her corporate superior;
- the superior made the request so that the corporation could secure legal advice;
- the subject matter of the communication is within the scope of the employee’s corporate duties; and
- the communication is not disseminated beyond those persons who, because of the corporate structure, need to know its contents.
See Marriott Corp. v. Am. Acad. of Psychotherapists, Inc., 157 Ga. App. 497 (1981).
Tips for In-House Counsel
In-house counsel must be aware of the contours of the attorney-client privilege and take steps to protect their legal advice from potential disclosure. Some specific steps in-house counsel should take, include:
- Educate management about the privilege generally and which communications are typically protected and which are not.
- Do not share privileged communications outside of those who need to know contents.
- Clearly communicate to management and employees which role the in-house counsel is playing when a communication is made.
- If possible, separate communications containing legal advice from communications containing business advice.
- Label legal communications appropriately to designate them confidential and privileged.
Jonathan E. Hawkins is executive vice president and general counsel at Village Park Senior Living. He is also of counsel at the Atlanta firm of Krevolin & Horst, where he provides general, business and ethics counsel to lawyers and law firms.