Jason Atchley: In-House : Hey, That’s a Privileged Communication!! Or, Is It?

jason atchley

Hey, That’s Privileged Communication! Or Is It?

In-House Straight

Marlisse Silver Sweeney, Corporate Counsel

February 18, 2014    |0 Comments

Privilege is something that, by definition, can be easily taken advantage of. But when it comes to lawyer-client privilege between in-house counsel and clients, the company, it’s not as easily preserved. “The burden is on the organization to prove that communications and documents shared with in-house counsel are protected,” say Thomas Zeno and Emily Root of Squire Sanders. They have some tips on how to best keep the company’s legal documents private:

Explicitly Ask for Legal Advice

Tell the business side to be overly clear in communications seeking counsel’s assistance. Zeno and Root suggest employing formal language and use the example of, “Joe, I’d like your legal advice on …” Even though this may sound “stilted,” the authors note that it’s the best way to demonstrate to a court that the communication was intended for the sole purpose of legal advice, and not business or editorial advice.

Watch Your Email Requests

When asking for legal assistance over email, clients should be careful who is in the “To” and “CC” fields, say Zeno and Root. “Although listing everyone in the “To” field is easy, it may result in disclosure of the email,” they warn. Only the lawyer should be in the “To” field, and anyone else should be carbon copied.

Limit the Distribution of Documents

“Rather than simply forwarding counsel’s advice, management-level employees should consider writing a separate email to subordinates summarizing how operations should change,” suggest the authors. In the same vein, new policies should be drafted without explicitly using the lawyer’s actual statements. This may add an extra step or two, but in the long term it protects the company.

Read more: http://www.corpcounsel.com/id=1202643105930/Hey%2C-That%27s-Privileged-Communication%26%2333%3B-Or-Is-It%26%2363%3B#ixzz2tgi6aeO2

Posted by at 9:29 AM 

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