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INSIGHT: Is This Chat Discoverable? How In-House Counsel Can Protect Privilege

June 24, 2020, 8:01 AM

As employees begin to return to work and Covid-19 accommodations become the “new normal,” companies may see an uptick in internal complaints of virus-related discrimination, harassment, and workplace safety concerns. When investigating them, in-house counsel must pay close attention to issues of privilege.

Attorney communications and work product are protected from discovery under the principle of privilege. But many employees believe that any communications with their in-house counsel are privileged, and that is simply not the case.

Successfully maintaining privilege, in fact, can be surprisingly complicated, but by taking certain precautionary steps, in-house counsel can prevent their clients from being lulled into a false sense of security.

Tips to Avoid Accidental Discovery, Disclosure

To avoid the accidental discovery and disclosure of confidential information, in-house counsel should remember the following tips.

The Presence of In-house Counsel Does Not Mean Communication Is Automatically Privileged

Communications to or from in-house counsel are not protected by the privilege simply because the in-house counsel is an attorney, or because an in-house attorney was in attendance at a meeting or copied on an email.

To be protected, a corporate client must show that in-house counsel’s communication: (1) was for the purpose of providing legal advice, and (2) was intended to be, and was in fact, kept confidential.

In-house counsel should educate their non-attorney colleagues to ensure that they do not waive privilege when sending routine business communications to in-house counsel under the false perception that they are privileged.

The Purpose of the Communication Matters

Business advice is discoverable, but legal advice is considered privileged. However, the distinction between the two can be blurred. In determining whether advice by in-house counsel is privileged, courts will consider whether the in-house counsel is acting as a business adviser or as an attorney and counseling a client.

A court might analyze whether communications reference legal principles or contain legal analysis, or whether the counsel is acting in a role similar to high-level non-attorney employees.

To protect sensitive communications, an in-house attorney should avoid giving legal and business advice simultaneously. If doing so is inevitable, the in-house attorney should make a written record of the legal aspects of any communication and/or have another attorney participate in the communications as a legal advisor.

Corporate counsel should consider referring highly sensitive investigations to outside counsel, as courts are more willing to uphold privilege when outside counsel has been retained. Moreover, any request for legal advice should be designated as such and spelled out in writing with a label such as: “Attorney Client Communication—For Purpose of Legal Advice.”

Finally, the corporation should avoid combining legal and non-legal matters. Non-legal matters should never predominate in sensitive legal communications, as it could render them outside the bounds of privilege. Corporate counsel should send separate communications for legal and business advice. Non-legal personnel should consider noting in writing that a communication constitutes a “request for legal advice.”

Similarly, in-house counsel should write that “this information is being requested for the purpose of rendering legal advice.” Including such disclaimers increases the likelihood that privilege will apply.

Always Keep Materials Confidential

In evaluating whether material is privileged, courts will also consider whether the communication was kept confidential. If too many employees are given access to a privileged document, the corporation may be deemed to have waived attorney-client privilege.

Communications should be disseminated on a need-to-know basis and kept confidential through the use of procedures such as segregation, cabinet locks, computer passwords, access minimization, or a “no loose paper” policy. Furthermore, in-house counsel should label e-mail and correspondence relating to legal advice as “Confidential—Attorney-Client Privileged.”

Although taking these precautions will not guarantee that the communication will remain privileged, a court will take such actions into consideration. However, in-house counsel should be aware that applying “privileged” and “confidential” labels to all materials can weaken the privilege by creating a sense that the privilege is being applied too loosely.

Be Wary of Waiving Attorney-Client Privilege by Accident

Even if attorney-client privilege should and does apply, it can be waived if the parties are not careful. In-house counsel should provide non-legal personnel with certain guidelines:

  • Do not discuss legal issues in public places where there is no reasonable expectation of privacy;
  • Do not discuss legal issues with family and friends;
  • Do not “cc” or “bcc” unnecessary third parties, or otherwise disclose the contents of privileged emails to third parties;
  • Do not send potentially risky emails. When possible, set up in-person meetings to discuss sensitive information;
  • Do not copy counsel on emails containing sensitive legal information. Instead, send the emails to counsel directly;
  • Do not discuss privileged matters in meetings attended by employees who do not have a direct interest in the matter; and
  • If unsure about whether a communication may destroy the privilege, ask in-house counsel.

Best Practices for In-House Counsel’s Interviews With Employees

When conducting interviews or other legally privileged conversations on behalf of the corporation, in-house counsel should notify a corporate employee of the following:

  • In-house counsel represents only the corporation, not the individual employee;
  • Anything the employee says to in-house counsel will be protected by the company’s attorney-client privilege;
  • The company retains the right to waive that privilege; and
  • The employee should retain independent counsel if she has any concern or wishes to receive legal advice on her own behalf.

In-house counsel should also take care to adhere to the following best practices:

  • Make clear that the communication relates to providing legal advice for the company;
  • Discuss only matters within the scope of the employee’s job duties;
  • Do not discuss litigation strategy or share work product;
  • Remind the employee that she should keep all communications with in-house counsel confidential; and
  • If conducting an investigation via phone or videoconference, make clear to the employee that she should not record the conversation by any means and must be in a private area where others will not hear the discussion.

This column does not necessarily reflect the opinion of The Bureau of National Affairs, Inc. or its owners.

Author Information

William J. Delany is a litigation and labor and employment attorney at Holland & Knight LLP. He focuses his practice on defending clients against Employee Retirement Income Security Act of 1974 (ERISA) class actions and complex employment discrimination lawsuits.

Dana E. Feinstein is a labor and employment attorney at Holland & Knight LLP. She represents employers in a wide scope of employment litigation, including claims of discrimination, retaliation, harassment and whistleblower claims, as well as wage and hour collective, class and multi-plaintiff actions.