As I was developing the privileged-or-not game, I came across a number of cases in which the attorney-client privilege was mismanaged amidst the exigencies of a crisis. The chaos involved in such events leaves little time for the orchestration necessary to maximize the chance that privilege will apply to the flurry of communications to and from counsel. Thinking ahead and modeling your response to a crisis is key. Here are a few privilege-related pages for your crisis playbook.
We can all agree that managing privilege is increasingly challenging. In my quest for best
practices, I have attended numerous CLE programs on the topic and have come to a clear conclusion: Use outside counsel as much as practical to quarterback your crisis response. The issues that frustrate the application of privilege to in-house communications—your business functions, your title, your interactions with corporate constituents—usually don’t arise with outside counsel, who courts view as adorned with a cloak of independence under which privilege has been protected. Inside counsel, however, face unique threshold inquiries about our status as “attorneys” before the privilege is even considered.