Documents also may expressly request legal advice, in order to distinguish them from others referring to business or political matters. In addition, documents may be stamped “Privileged and Confidential,” and filed separately with other materials for which a privilege is likely to be asserted, perhaps in a vault. Distribution of a privilege document to parties beyond the few who have an absolute need to know should be avoided, because it may waive a privilege that otherwise would exist.
However, it is useful to remember that these steps cannot protect a document if it is not otherwise eligible for the attorney-client privilege (such as documents consisting of non-legal advice). Nor can documents become privileged simply by sending them to a lawyer.
Additionally, an outside consultant’s attendance at a meeting involving legal counsel may waive a privilege that otherwise exists. That is because the presence of third parties at a conference between lawyer and client usually indicates that the conference has not been conducted in confidence.
With outside consultants, the privilege does not apply unless the consultant has been included in order to further the purposes of obtaining legal advice. For example, to the extent that a consultant’s import is necessary for an attorney to understand or address an issue, a company may argue that the privilege applies. If the communication with the consultant relates to facts that are essential to the attorney’s assessment of the client’s legal position and the attorney’s legal advice, the company can make this fact clear by recording it in the meeting notes.
Communications between lawyers and lower-level employees also are not necessarily privileged. Depending on the jurisdiction, it may be advisable to have upper management request that lower-level personnel communicate with counsel in order for a company-held attorney-client privilege to arise.
If corporate counsel, executives and consultants tend to keep communication confidential, they should review the elements of the attorney-client privilege and ask themselves a basic question, “Is this a communication with counsel for the purpose of seeking legal advice, or simply a communication in which counsel is involved?” Only if the communication actually--and perhaps primarily--seeks legal advise, and the other elements of the privilege are present, may the privilege arise.
Despite the involvement of an attorney in certain communications, companies have not been able to show that the privilege applies when legal advice is not predominate.
For example, if the company chooses to channel work through in-house counsel even though the work is not legal in nature and could be performed by a non-lawyer, communication with counsel is not necessarily privileged.
The purpose of the privilege is to encourage open communication between clients and attorneys so that appropriate legal advice may be provided. The privilege is not designed to protect statements or documents to which an attorney is simply a party. Therefore, the mere participation of an attorney in communication with company executives or consultants does not automatically shield those communications from disclosures. Note that the privilege only protects communications between client and attorney; the facts discussed may still be provable by evidence other than the attorney-client communication.
The actual scope of the attorney-client privilege varies among jurisdictions and should be considered when analyzing a particular set of facts. Furthermore, if the attorney-client privilege does not protect a communication, it is sometimes possible to seek protection under other legal doctrines, such as the work product doctrines which apply only to documents prepared in anticipation of litigation and has its own requirements that must be satisfied to establish the privilege which are different from those of the attorney-client privilege.
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This publication is designed to provide accurate and authoritative information in regard to the subject matter covered and report on issues and developments in the law. It is not intended as legal advice, and should not be relied upon without consulting an attorney.