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Summer 2020
Preserving the Attorney–Client Privilege when Communicating with Corporate Counsel
In-House Defense Quarterly
Don’t assume the attorney–client privilege protects all pre-litigation communication with in-house counsel. That privilege may not attach or may be easily waived by the unwary.
A dangerous and common misconception in the practice of law is that all communications between business personnel and in-house counsel are protected by the attorney–client privilege. An email between nonlawyer corporate employees that merely copies an attorney in the corporate legal department offers no more protection than a privilege legend at the bottom of the email asking an in-house attorney to go to lunch. If company employees and the in-house and outside counsel with whom they work take a cavalier approach to privilege, they risk a court strictly applying the elements of the attorney–client privilege and finding one or more missing.
Reprinted with permission.
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