While many employers and employees believe that all communications with the employer’s in-house counsel are subject to the attorney client privilege, the scope of the privilege when communicating with in-house counsel is actually much more limited. Some tips for maintaining the attorney-client privilege for communications to and from in-house counsel include the following:
- The communication must be for legal advice. To be privileged, the communication must be for the purposes of giving or receiving legal advice. Communications on non-legal matters—including communications on strictly business issues—will not be privileged. This line between business and legal issues can be blurry when in-house counsel is involved. As a rule of thumb, limit the communication to strictly legal matters and communicate business strategy or negotiation issues separately.
- The communication must have been intended to be kept confidential. The privilege only applies if the communication was intended to be kept confidential. Clearly labeling the communication “attorney-client privileged confidential communication” can demonstrate this intent.
- The communication must be within the scope of employment.Even when communicating regarding a legal matter, an employee’s communication with in-house counsel must be within the scope of the employee’s responsibility to be privileged. Matters outside of the communicating employee’s duties or communications regarding personal matters will not be privileged.
- Limit the audience. Simply copying in-house counsel on a communication does not make that communication privileged. Nor does an in-house counsel’s presence at a meeting make all that was said or done in the meeting privileged. To preserve the privilege, limit the audience to those absolutely necessary for that particular communication.
- Facts themselves are not privileged. Reporting facts to in-house counsel does not necessarily make the communication privileged. Communications reporting facts witnessed or known by an employee will only be privileged if communicated for the purpose of obtaining legal advice.