The Attorney/Client Privilege and In House Counsel Communications
The Attorney/Client Privilege and In House Counsel Communications
Attorney / Client Privilege
The “attorney-client privilege” protects communications between the lawyer and the client. With limited exceptions, the privilege establishes the right of the client “to refuse to disclose, and to prevent another from disclosing, a confidential communication between client and lawyer”. Evidence Code section 954. The objective of the privilege is to enhance the value which society places upon legal representation by assuring the client the opportunity for full disclosure to the attorney unfettered by fear that others will be informed. Sacramento Newspaper Guild v. Sacramento County Bd. of Suprs. (1968) 263 Cal.App.2d 41.
Confidential In-House Counsel attorney-client communications are deemed privileged unless the “dominant purpose” was something other than legal advice. Costco Wholesale Corp. v. Super. Ct. (2009) 47 Cal. 4th 725.
In-House Counsel typically has a dual function, providing both business and legal advice. However, the role of In-House Counsel is fluid and can change from moment to moment depending on the client’s needs, at times being more involved in business advice, and other times, more involved in legal advice. In this context, it is important to understand to which communications the attorney-client privilege applies, and to take the necessary steps to preserve the privilege.
In the In-House Counsel context, the “client” is the company. The company, not its owners, is the holder (controls) of the attorney-client privilege.
Confidential In-House Counsel attorney-client communications are deemed privileged unless the “dominant purpose” was something other than legal advice.
- Pure legal advice is privileged
- Pure business advise is not privileged
- Communications with a mixture of legal and business are typically entirely privileged in California
- Keep business and legal advice communications separate whenever possible
- Companies cannot “immunize” communications simply by copying or funneling emails through In-House counsel
The presence of a third party during a confidential communication (in-person presence or inclusion in an email or other written communication) can create a waiver of the attorney-client privilege, unless the third-party is “necessary” to the communication.
- Company personnel should limit requests for legal advice to In-House Counsel or other attorneys
- Do not include unnecessary persons on emails regarding legal advice
- Avoid mass cc’s and “Reply to All” emails whenever possible
- Avoid indiscriminately copying In-House Counsel on emails for convenience or tactical reasons — If In-House Counsel is copied on each and every email regardless of the topic, it will be more difficult to show that legitimate attorney-client communications exist
When a company finds it necessary to perform an internal investigation for any reason, it should first establish the scope of the intended investigation, how and by whom it will be handled, and limit the investigation to a “need to know” basis. When conducting an internal investigation, the employee being questioned must be made aware that he/she is being questioned in order for the company to obtain legal advice, and that the company, not the employee, is the holder of the attorney-client privilege.
If your company utilizes in-house counsel and need assistance, or if you are looking for an in-house counsel for your company, contact the Irvine business and corporate attorneys at Brown & Charbonneau, LLP can help. Call us today at 714-505-3000
