& Associates, PC. He practices in the fields of professional liability,
employment litigation, insurance coverage, products liability, and
complex commercial litigation. He represents amongst others,
corporate officers, physicians, dentists, nursing homes, lawyers,
accountants, product manufacturers, insurance agents and brokers,
architects and engineers, contractors, and insurance companies.
He is the current Chair of Primerus' Professional Liability Group
and also serves on the Executive Committee of Primerus' Labor &
Employment Group.
30 North Haddon Avenue, Suite 200
Haddonfield, New Jersey 08033
856.354.1900 Phone
856.354.6040 Fax
tpaschos@paschoslaw.com
www.paschoslaw.com
Court extended the attorney-client
privilege to in-house counsel. Upjohn
Co. v United States, 101 S.Ct. 677, 449
U.S. 383, 66 L.Ed. 584 (1981). The issue
in Upjohn was whether in the corporate
context, the attorney-client privilege
included communication between the
attorney and low level employees of the
corporation. The Supreme Court held
that any information obtained by a cor-
porate defendant's attorney that is sought
for purposes of legal advice is protected
by the attorney-client privilege. The cli-
ent is not just the ranking officers of the
corporation, but includes any employee
from whom information is sought.
Significant is the fact that corporate
counsel does not have the same capac-
ity as outside counsel to have privileged
communications with clients. The
problem is that courts do not treat a com-
munication as privileged simply because
attorney. A communication is privileged
only if the primary purpose of the com-
munication is to further the objectives
of the attorney-client privilege. In other
words, the communication must be made
for the purpose of seeking, obtaining or
providing legal assistance. Specifically,
the attorney-client privilege protects
communications between a lawyer and a
client when the communications are 1)
made for the purpose of seeking or pro-
viding legal advice, as opposed to busi-
ness advice; 2) confidential when made;
and 3) kept confidential by the client.
is unique when an attorney represents
a corporation. It is generally recognized
that not all corporate employees are the
"client." Courts have employed two theo-
ries to decide which corporate employees
in-house counsel may communicate with
in a privileged context.
test" under which only those conversa-
tions between in-house counsel and the
corporation's controlling executives and
managers are eligible for protection.
Often, a company's "control group" is
made up of a very limited number of
corporate employees.
In
to include an inquiry into the subject
matter of the communication. Under this
theory, employees with relevant informa-
tion regarding the subject matter are
considered the "client" regardless of
their position in the company. Therefore,
it is possible for any corporate employee
to have a privileged conversation with
corporate counsel. However, the conver-
sations are not always privileged. Issues
arise because often many corporate
employees are under the impression that
they can discuss any corporate legal
matter with a corporate attorney and it
will be privileged. Not every corporate
employee is entitled to a privileged com-
munication on every legal matter. Unless
the communication is within the scope
of the employee's responsibility, it is not
privileged. Further, some employees may
be outside the scope of the privilege as
to any legal matters. Issues arise when
by Corporate Counsel