This is the first of a six-part series on the ways in which in-house counsel can assist outside counsel in litigation. In-house counsel can play, and should play, a role in increasing the likelihood that company communications will be protected by the attorney-client privilege. The following “best practices” should be put in place before litigation is filed:
Make it a part of your standard procedure to educate non-lawyers who interface with your company’s lawyers (e.g., paralegals, human resources personnel, and customer complaint personnel) about when the attorney-client privilege applies and how it can be waived. Teach non-lawyers to follow the applicable “best practices” discussed in this article. Also, emphasize to employees that they cannot assume that every communication to an in-house lawyer, or copying an in-house lawyer, is privileged. As a result, they should always carefully choose their words and should not forward legal advice provided to non-lawyers or outside parties without the express permission of the law department.
Label communications requesting or providing legal advice or prepared in connection with rendering legal advice as privileged and identify lawyers
Lawyers and non-lawyers should label communications made in connection with seeking or rendering legal advice with the legend “PRIVILEGED AND CONFIDENTIAL” or “PRIVILEGED AND CONFIDENTIAL SUBJECT TO THE ATTORNEY-CLIENT PRIVILEGE.” Consider having this legend placed in the header of the document or on each page of an email in case the pages become separated. Lawyers and non-lawyers also should refer to law titles if possible or include “Esq.” after a lawyer’s name.
Make the request for legal advice, the giving of legal advice, or assistance provided in connection with rendering legal advice explicit in the writing
While a legend is helpful and will cause outside counsel and the court look at a privileged document more closely, it is most useful if the body of the document explicitly states that it is a request for legal advice, is providing legal advice, or was prepared at the request of lawyers or in connection with the rendering of legal advice. Non-lawyers should explicitly request legal advice, state that the information they are transmitting is being sent for the purpose of requesting legal advice, or state that the information is being provided in response to a request from a lawyer or the law department. Similarly, in-house counsel should explicitly state that they are providing legal advice or are requesting information in connection with providing legal advice or in anticipation of litigation (e.g., “This information is being requested for the purpose of rendering legal advice.”).
Limit the distribution of privileged communications to those who “need-to-know”
Sending privileged communication to a large group of non-lawyers decreases the chance that a court will find that the communication is privileged. Some courts have concluded that a document or email addressed to non-lawyers as well as a lawyer means the document or email is not privileged because the communication was not primarily made for the purpose of providing legal advice. Courts also have concluded that putting a lawyer in the “cc” field of an email to non-lawyers suggests that the email is not privileged. Counsel lawyers and non-lawyers at your company that the larger the distribution list, the greater chance that you will dilute the privileged nature of the communication and that the court may find that any privilege was waived. One way to limit the distribution list is to separate business and legal advice/ legal request documents and emails. It is best to avoid intermingling routine business communications with requests for legal advice or the rendering of legal advice.
Be careful when communicating with employees outside of the USA
Although most countries recognize some form of attorney-client privilege, the scope and application of the privilege may vary from country-to-country. For example, there is no in-house counsel privilege in the majority of countries in the European Union (EU). Those countries reason that inside counsel are not independent of their employers and therefore are not entitled to the same privilege protections afforded communications with outside counsel who are deemed to be independent. You may want to consider retaining outside counsel to increase the chances that the attorney-client privilege will apply to communications to corporate employees and affiliates in foreign countries.
Think ahead when conducting internal investigations
When launching an investigation, think ahead about the strategy plan, have attorneys conduct and/or direct information gathering and interviews. In addition, prepare a law department memorandum outlining the information gathering process, the purpose of the investigation, and law department involvement.
Assist outside counsel in avoiding an inadvertent production of privileged communications
When providing documents to outside counsel to review and produce, provide outside counsel with a list of in-house lawyers, segregate lawyer files if possible, and alert outside counsel to privileged investigations and matters. This will decrease the chance that your outside counsel of with inadvertently produce a privileged communication.