by Michelle Brookshire and Anima Jamal
Being an in-house employment lawyer is a lot like being a contestant on Jeopardy—you never know what the topics of the day will be. As corporate counsel, we are often asked to provide advice on a wide range of topics, including business as well as legal issues. In order to encourage full and frank conversations, we rely frequently on the attorney-client privilege.
However, not every communication will be protected by the privilege. Communications made for business rather than legal purposes are not protected by the privilege. So it is vital that your clients not assume that communications are privileged simply because they were made to or from someone in the legal department, or because an attorney was present when they were made. You and your client need to be aware of the rules and take affirmative steps to preserve the privilege.
Who Does the In-House Lawyer Represent?
In Texas, the privilege is governed by Rule of Evidence 503. The Rule provides that “[a] client has a privilege to refuse to disclose and to prevent any other person from disclosing confidential communications made for the purpose of facilitating the rendition of professional legal services to the client.” The privilege requires:
1. A communication;
2. Between counsel and client;
3. Made in confidence; and
4. For the purpose of rendering legal advice.
ABA Model Rule 1.13(a) provides that a lawyer employed by an organization represents the organization “acting through its duly authorized constituents.” Some communications between a company’s employee and the company’s counsel may not be privileged. In order to determine whether the privilege applies, the starting point is Upjohn Co. v. United States. In Upjohn, the Supreme Court determined that privilege applied not only to communication between legal counsel and high-ranking employees who serve as decision-makers for the company, but may also apply to mid-low level employees. The court emphasized that confidential communication with the company’s employee, regardless of his or her rank or decision-making authority, or lack thereof, is privileged if the communication is based on a topic within the employee’s scope of job duties and the employee understands that the communication is for the company’s benefit and in order for the company to obtain legal advice. In light of Upjohn, prior to engaging in privileged communication with employees, it is imperative for counsel to make clear to such employees the purpose of the communication and to underscore that only the company may waive the privilege. Likewise, corporate counsel should clarify to the individual employees that counsel represents the company only, rather than the employees. This is especially important in the case of communications with senior company officials who may mistakenly assume the in-house counsel represents the official in a personal capacity.
How do You Preserve the Privilege?
In order to protect the privilege, in-house counsel should take affirmative steps, including:
(1) Create a Record
If you receive an email from a client and it is not clear, it is a good idea to send a confirming email that the purpose of the original email was to seek legal advice. Another way to create a record is to simply say in your response: “My legal analysis of this is . . . .”
(2) Separate Business Communications from Legal Communications
Prevent inadvertent disclosure of privileged information by separating discoverable communications from privileged communications. For example, you should send separate emails – one for legal advice and one for business advice, even if to the same client and on a related subject.
(3) Clearly Label Communications as Privileged
Privileged communication should be clearly marked “Privileged – Attorney Client Communication.” It is a good idea to advise your clients not to share privileged communications with other employees who do not have a “need to know,” and do not use the “forward” or “reply all” options unless it is an intentional decision. It also good practice to add “Do Not Forward” to communications containing legal advice.
(4) Use Caution When Communicating with Former Employees
Whether communications between a former employee and in-house counsel is privileged varies by jurisdiction. However, the best practice is to limit communications with the former employee to the scope of his or her duties during the time of employment with the company and avoid sharing work-product or plan of actions.
By being aware of the limitations and taking some practical steps to distinguish between business advice and legal advice, you can protect the privilege and win the daily in-house Jeopardy challenge.