Reminders on the Attorney-Client Privilege for In-House Counsel

I just came across a decision issued in the District of Massachusetts, Logue v. The Rand Corporation, and it reminded me of some key aspects of the attorney-client privilege related to in-house counsel about which I have written over the years. Some of those principles include the following:

• Not all confidential communications with in-house counsel (or any other attorney) are privileged; only communications for the purpose of giving or receiving legal advice can be privileged. Further, copying in-house counsel on an email does not make the underlying email privileged, and trying to cloak a non-privileged communication with the privilege even can lead to sanctions.
• While almost any employee has the ability to create a privileged communication by speaking with in-house counsel, that person typically has no ability to prevent the communication from being disclosed. A privileged communication with in-house counsel belongs to the corporation, company or other legal entity, and the ability to assert or waive the privilege rests in the hands of the Board or other managing agents.
• If the equity in a business is sold, the new Board or other managing agents typically retains the right to assert or waive privilege with respect to communications created prior to the sale.
• If in-house counsel is providing legal and business advice in the same document, that portion of the document containing legal advice may remain privileged – but not if in-house counsel fails to take specific steps in certain instances.

While most lawyers know a little about the privilege, there are a lot more nuances to it than many people realize. Further, for in-house counsel, issues related to the privilege come up just about every day – whether they realize it or not. Thus, it is extra important for them to at least be aware of some of those nuances.