Conning the IADC Newsletters:Protecting The Corporate Counsel Communications Shield: The Attorney-Client Privilege Is Alive and Well for Company Lawyers

Abstract

This article originally appeared in April 2013 Business Litigation Committee newsletter. IN THE CURRENT electronic era, one of substantial challenges facing defense lawyers is protecting written communications involving corporate counsel. In many companies, corporate counsel are now often part of business management team, no longer only relegated to providing legal advice when asked to do so. Frequently, legal department attorneys are located with business unit and are actively engaged with company executives and product managers in both legal aspects of business and day-to-day business decisions. In fact, company titles for in-house lawyers sound like those of executives rather than lawyers, including Executive Vice-President, Chief Compliance Officer, Senior Vice-President, Chief Privacy Officer or Corporate Secretary. These positions bring our company lawyers directly into cross-hairs of business litigation involving company decisions ranging from intellectual property and contract disputes to product liability and environmental contamination matters. The various scenarios raise interesting factual questions for traditional protections afforded to clients in attorney-client relationship, particularly when it comes to assertion of attorney-client privilege or attorney work product protection. This sacrosanct principle is the oldest of privileges for confidential communications known to common law. (1) As all are aware, with certain exceptions, privilege protects against disclosure of confidential communications between attorney and client within context of seeking legal advice from a lawyer. The privilege necessarily encourages candid and open conversations between clients and their attorneys, allowing attorneys to more effectively represent their clients' interests by understanding inner-most workings of company operations, errors made in judgment, discussions surrounding correction of problems and liabilities that might flow from those decisions, and issues relating to damage control. These kinds of lawyer-related communications likely would be deemed relevant to any litigation concerning such issues and these communications are often accomplished electronically and become central to discovery disputes when placed on a privilege log. Discoverability of these written communications is challenged through motion practice with communications initially described generally along with names of those sending, receiving and copied. The object of defense is to keep these communications from being produced, even for review by trial judge or magistrate judge or discovery master. To do so, defense lawyers must have detailed substantive knowledge of communications, electronic history of communications, inter-relationship between those involved in communications, particularly lawyers, and motivations for communications. Since It]he burden of establishing existence of privilege is on person asserting it, (2) it will be necessary to prepare affidavits from those involved explaining factual basis for assertion of privilege, so that those making legal decision understand how and whether privilege or protection comes into play. For most part, since outside lawyers are invariably consulted for legal advice, they rarely will be asked to disclose information provided to them by clients, and since communication is almost always protected, we will not address outside counsel in this article. (3) The greater challenge comes when in house counsel are involved because those seeking communications argue that privilege is inapplicable or waived and cannot shield them from disclosure. To be sure, courts acknowledge that the need to apply [the attorney-client] privilege cautiously and narrowly is heightened in case of corporate staff counsel, lest mere participation of an attorney be used to seal off disclosure. …