corporate counsel gives legal advice.
Not all jurisdictions use the expanded
test in Upjohn, some continue to employ
the control group test.
legal and business roles and some hold
corporate titles such as Vice President
or Secretary, in addition to the title of
General Counsel. Often corporate legal
advice involves at least some element
of business advice, as a result in-house
counsel face more scrutiny when it
comes to applying the attorney client
privilege. Generally, communications
made by and to an in-house counsel with
respect to business matters or business
advice are not protected by the attorney-
client privilege.
To invoke the attorney-client privi-
lege, the communication must be primar-
ily for the purpose of rendering legal
advice. It is inevitable that legal advice
is often intertwined with business advice.
Some courts have approved redaction or
exclusion of privileged portions of docu-
ments containing legal advice mixed with
business issues.
Courts have held that there is a need
for this heightened scrutiny when it
comes to applying the attorney-client
privilege to corporate counsel because of
the chance that an attorney may partici-
pate simply to be able to assert the privi-
lege and keep the documents off limits in
discovery. Therefore, courts must often
distinguish between a lawyer's legal and
business work.
Further, the fact that counsel is
carbon-copied on a document or attends
a meeting, does not invoke the privilege.
Typically, the privilege does not apply
under these circumstances unless it can
be demonstrated that the communica-
tion would not have been made but for
the client's need for legal advice. If the
the primary purpose of obtaining legal
advice, it does not become privileged by
adding counsel as recipients. Addition-
ally, counsel's recommendation of, or
involvement in, a business transaction
does not necessarily place the transac-
tion under the cloak of privilege.
client Privilege
client privilege remain protected unless
the client affirmatively waives the privi-
lege or it is indirectly released by the cli-
ent's actions. The privilege which applies
to information shared in representation of
the corporation cannot be waived by an
individual officer, director or employee
without the proper authority.
While in-house counsel may com-
municate with any employee or agent
of the corporation about their work as
necessary to render legal services for the
corporation, the following points should
be kept in mind to ensure the attorney-
client privilege is preserved.
on a confidential, need-to-know basis.
documents to outside third parties.
tion from the business information in
sensitive communications.
General Counsel, do not use any
non-legal titles (Vice President,
Secretary, etc.)
distributing communications to nu-
merous recipients. The writing should
make clear why each recipient is
receiving the memorandum.
nications, including electronic mail
and informal memos, should note
that you are seeking legal advice.
Writing "counsel is addressing the
following legal issues" or "privileged
the beginning of communications
expected to be privileged can be an
added safeguard.
in business meetings attended by
employees who do not have a direct
interest in the matter.
handle particularly sensitive matters.
Confidential communications with
outside counsel face less scrutiny
when being characterized as legal
advice.
of the boundaries of the privilege.
Corporate counsel should advise
the corporate employees that not
all communications are subject
to the privilege.
ing e-mails and attachments to both
lawyers and non-lawyers if the sender
hopes to maintain privilege over the
communication. If counsel receives
an e-mail sent to both lawyers and
non-lawyers, counsel should create
a new document before commenting
or making changes in order to reas-
sert privilege over the new edits and
communication.
the type of communication protected by
the attorney-client privilege, the scope
of the attorney-client privilege in a
corporate setting, as well as considering
the above points, corporate counsel
should be able to ensure that the attorney-
client privilege is preserved.