As attorneys across America are adjusting to a new work-from-home environment in response to COVID-19, so are corporate legal departments. Legal advice and discussions that previously took place in face-to-face meetings in offices and conference rooms will now be taking place via email, teleconference or video conference.
Some companies may consider recording — and thereby making a permanent record of — certain meetings to accommodate employees who are balancing working from home and taking care of children in light of school closures.
Additionally, the ever-evolving issues surrounding the pandemic have promoted an increase in company alerts, bulletins, advisories and notices. This shift in communication methods will consequently increase the volume of potentially discoverable documents.
It is not uncommon for clients and employees to assume that any communication with a lawyer or in-house counsel will be considered “confidential” or “privileged.” The scope of the attorney-client privilege, however, is much narrower.
Generally, the attorney-client privilege applies to protect written or oral communications that meet all of the following factors:
- The communication is between a client and an attorney or an agent of an attorney
- The communication contains confidential information
- The communication is made outside the presence of a non-privileged third party
- The communication is made for the purpose of securing legal advice
- The privilege has not otherwise been waived
In-house counsel face a unique complication related to attorney-client privilege as a result of the dual role that they play as legal advisors and business advisors.
Generally, an in-house lawyer will have to show that the communications to be protected were made for purposes of providing legal advice and to persons covered under the attorney-client relationship.
For attorney-client privilege to attach to a communication, the rule of thumb is that one of the primary reasons for the communication must be legal advice.
As noted above, a corporation’s in-house counsel wears multiple hats, and sometimes attends meetings, is included on email threads, or gives advice or direction related to general business matters that are not necessarily connected with his or her capacity as an attorney.
The in-house counsel’s participation in such general business decisions usually will not be protected by privilege. Even in a situation where the attorney is providing business advice along with legal advice, only the legal advice would be privileged.
The second consideration when determining if attorney-client privilege attaches to a communication is whether the parties are engaged in an attorney-client relationship.
The typical in-house attorney has only one client: the company. For privilege to attach, the legal advice must be for the benefit of the corporation as a whole. Though in-house counsel is not engaged in attorney-client relationships with the company’s individual employees, members, directors, officers, or shareholders, these individuals do frequently communicate with counsel on the company’s behalf.
This means that it is sometimes difficult to determine whether a communication is made within the scope of the attorney’s relationship with the company. Generally, when the communication involves a legal issue that directly affects the company, and is made between the attorney and an agent acting on behalf of the company, a court is likely to find that an attorney-client relationship exists.
When a dispute regarding the scope and applicability of the attorney-client privilege or work product privilege arises, courts will conduct a fact-intensive analysis regarding the creation of the communication, document, or data. This often involves an in camera review of the documents and information at issue in addition to affidavits and/or testimony regarding their creation. As a result, the documents themselves will play a large role in establishing the existence of a privilege.
The following tips and considerations can be used to help lawyers protect privileged and confidential communications and information:
- Consider whether a written communication is necessary. As the number of phone calls and teleconferences increases, so will the desire to default to emails and text messages in lieu of a verbal conversation. In most circumstances, confidentiality will be better preserved with the phone call or the videoconference. Before hitting send on an email or text message, remember that an increase in written communications is an increase in potentially discoverable information.
- Establish the attorney-client relationship. An in-house counsel’s client is the company. Prior to advising employees or company subsidiaries and affiliates, in-house lawyers should consider whether the individual with whom they are communicating is covered under the attorney-client relationship. Typically, a privileged relationship is most likely to be found when the communication is with a member, director, or officer acting on behalf of the company.
- Limit the number of invitees, recipients, CCs and BCCs. In general, the larger the number of individuals included in the communications, the less likely the communication will be construed to be “confidential.” Therefore, it is important to be sure that privileged communications are made only to persons who need to receive the information or advice. To avoid privilege issues, it is best to refrain from including unnecessary parties in conversations, meetings, or email threads. Including too many parties as recipients of an email or written communication, even if those parties are within the company, increases the potential that the communication may be waived due to disclosure to a third-party. It is always good practice to warn parties to a privileged email or written communication against forwarding the communication to or discussing its contents with any third-party.
- Evaluate whether the information to be protected is a communication. The attorney-client privilege only protects the communications between a lawyer and/or his or her agent and the client. Documents attached to emails and notes from meetings and/or calls, however, are not communications and may not be protected unless they fall within the purview of the work product privilege.
- Identify the privileged legal issue. In-house counsel should identify communications and meetings as attorney-client privileged when appropriate. Email subject lines should include a “Privileged and Confidential” notation. Calendar invites to meetings and teleconferences can be used to identify attorney-client privilege prior to the meeting occurring. Additionally, in-house counsel may also consider identifying the legal issue to be discussed at the meeting. A key issue in establishing privilege is proving that the communication was made for purposes of securing legal advice. By identifying the legal issue at the outset, you put yourself in a better position to protect the communications.
- Identify when litigation is anticipated. In addition to the attorney-client privilege, the attorney work product doctrine can be used to protect materials prepared in anticipation of litigation or for trial. At the outset of an investigation, communicating that litigation is anticipated can help establish the existence of work product privilege.
- Consider the topics and scope of a meeting or conversation before recording it. Some companies may consider recording meetings and teleconferences to accommodate the availability of their employees. Before recording any meeting or conference, consider the scope of the discussion, the number of attendees and speakers, and any possible confidential information that may be discussed. In meetings and conferences that are intended to allow for an exchange of ideas and open discussion, there may be no way to control the disclosure of confidential information. Whenever there is the expectation that legal advice will be sought or given during a meeting or conference, it would be best not to record it.
- Keep a lawyer engaged in the communications. It is not uncommon for a lawyer to receive an email communication regarding a particular issue, but in subsequent email discussions be removed and/or not included. Privilege is better protected by keeping the lawyer involved in the discussion and communications throughout the process. Courts are unlikely to apply attorney-client privileges to communications or meetings with little to no attorney involvement.
Social distancing does not need to lead to an increase in privilege issues, as long as attorneys remain diligent and take additional steps to reduce risk when communicating with or advising clients.
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