legal advice

Next to a person’s Fifth Amendment right to remain silent, the attorney-client privilege is probably the most well recognized legal doctrine out there. Nevertheless, there are many nuances surrounding the privilege about which even seasoned lawyers are not very familiar. One of these deals with the fact that not all private communication between an attorney and client are privileged – even when the communications involve the most confidential and sensitive information.

In order to understand why and how to handle situations where an attorney-client communication may not be privileged, let’s first look at the basics: the attorney-client privilege is a rule of law that protects from disclosure private communications between an attorney and client that are for the purpose of giving or receiving legal advice. As such, communications with an attorney that seek business advice are not privileged. Further, because so many in-house attorneys routinely provide both business and legal advice, it is critically important that they educate their business colleagues about this, or problems can arise.

Take this example, which really happened to one of my in-house clients a few years ago. As a meeting amongst a group of business executives was about to begin, the CEO

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While companies, like people, are entitled to protect privileged communications with their counsel, companies only can act through individuals. So what happens when the former CEO wants to disclose a privileged communication he had with his company’s corporate counsel? As SEC v. Present highlights, if the company does not want that communication disclosed, the former CEO may be barred from making such a disclosure.… 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