The attorney-client privilege protects communications sent between a lawyer and client. But not all attorney-client communications are protected. There are at least two common misunderstandings about when the privilege applies.
First, the purpose of the communication must be to seek or obtain legal advice. Thus, for example, an email is not privileged merely because counsel is copied on an email. This is especially true when communicating with in-house counsel. An email discussing a business decision may copy counsel to keep him or her in the loop in the event legal advice is needed or simply because counsel is acting in a business-advisor role. The line can be difficult to draw in practice, but the safer course is to assume that a communication will not be privileged unless the subject and substance plainly concern legal advice and only legal advice. If the communication addresses both legal and business issues, the portion that relates to legal advice should be privileged, but the risk of losing the privilege in a mixed communication is greater, because a court could conclude the primary purpose of the communication was not to obtain legal advice.
Second, the communication must be kept in confidence. If not, the privilege may be lost. Employees may incorrectly assume that, as long as they refrain from discussing privileged information outside their workplace, communications will remain confidential and protected. For example, some businesses work so closely with third parties that employees overlook the fact that they are discussing legal advice with someone outside their company. Even within the company, employees beyond the need-to-know group may be interested in pending legal disputes, and it may be tempting to share legal advice and strategy with them. Such practices create a risk that otherwise privileged material will become nonprivileged.
Given the volume of email generated by the average employee, companies would do well to remind employees of a few simple steps they can take to minimize the risk that attorney-client emails become discoverable in litigation because they are deemed not to be privileged. The practices below can help.
- Consider the size of your audience. Remember, to be privileged, the communication must be made in confidence and be a request for legal advice. The more non-attorneys you add to an email, the less the communication looks like a confidential request for legal advice.
- Always make any request for legal advice explicit. Rather than simply forwarding a document to counsel or saying “please look at this” or “FYI,” use language that makes clear that you are requesting legal advice—e.g. “please provide legal advice on….”
- If necessary, send multiple emails. It’s tempting to consolidate content in one email for the sake of efficiency. But, when you need to consult counsel for both business and legal advice, consider sending two separate emails. Similarly, when you need to consult multiple members of a team, including a lawyer regarding legal advice, send separate correspondence to counsel.
- If you’re seeking legal advice, counsel should be the only person in the “to” line. Adding a business person to the “to” line could make it more likely that the email serves a dual purpose of seeking legal and business advice. If your intent is to seek legal advice, counsel should never be in the “cc” line.
- Consult with counsel before forwarding attorney-client communications. Privilege may be destroyed by disseminating an otherwise privileged communication too widely, even within the organization.
- When you must relay legal advice to other members of your organization who need to know the advice, make sure you identify that the advice came from counsel and should be kept confidential.
- When sending an email that contains legal advice or a request for legal advice, apply a label that make this clear, such as “Privileged & Confidential” and/or “Attorney-Client Communication.” Such a label will not be dispositive, but it indicates the intention of the sender to seek legal advice. (Note that adding this label and an attorney as a recipient will not convert a non-privileged communication into a privileged one.)
- In-house counsel (and other members of the legal department) should always conclude their emails with a signature line making clear that they are attorneys. This alerts the recipient that they are communicating with counsel and, should litigation ensue and documents need to be produced, cues reviewers that they are dealing with attorney communications.
The truth is, the rules regarding what is privileged and what is not leave judges with a lot of discretion, which can turn on the specific facts and circumstances. Following the above recommendations will make it more likely that a judge will affirm a communication as privileged.