Communications between attorneys and clients that are not private, and/or communications between attorneys and third parties, cannot be protected from disclosure by the attorney-client privilege. When the client is an individual, it generally is easy to discern if a communication is private, and it usually is obvious if an attorney is communicating with a third party. When the client is a corporation or some other entity, however, it can be much less clear as to whether a particular person will be deemed to be the client or a third party. One scenario where this issue routinely arises is when company counsel communicates with an individual who is an independent contractor or some other person working closely with the company, but who is not an employee.… Keep reading
On more than one occasion, an in-house counsel has been summoned to a strategy meeting about a potential or ongoing dispute, and when he arrives, he finds an outside accountant already seated in the conference room ready to participate in the meeting. At this point, the in-house counsel’s gut reaction usually is to ban the accountant from the meeting so that the attorney-client privilege will not be destroyed. While excluding the accountant from the meeting may ultimately make sense, making that judgment without some serious reflection could deprive the client of insights that may come with little or no risk and/or may be worth the risk of waiving the privilege.… Keep reading
Because the role of most in-house counsel goes well beyond that of providing legal advice, whether communications with in-house counsel are privileged is a much more nuanced issue than it is with respect to communications with outside counsel.
General Principles Applicable to all Claims of the Privilege
1. Not all communications with attorneys are privileged; only communications for the purpose of obtaining legal advice are privileged. Thus, even conversations between a CEO and his or her General Counsel about the most sensitive and confidential aspects of their business are subject to disclosure unless they are for the purpose of obtaining legal advice.… Keep reading