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Protecting Your Attorney-Client Privilege

on Wednesday, 28 January 2015 in Labor & Employment Law Update: Sarah M. Huyck, Editor

The attorney-client privilege gives employers critical protection in the event of a lawsuit, but courts will not hesitate to declare that employers have forfeited those protections if they are not careful. Worse, once an employer has lost the protection of the attorney-client privilege, the documents and conversations over which the privilege was lost can become some of the most damaging evidence in the lawsuit. The following is a brief summary of the privilege and key considerations that every employer should implement to protect this valuable safeguard.

First, the attorney-client privilege is essentially a rule of evidence, and it usually plays out in litigation. As a law firm, Baird Holm LLP treats everything we know about our clients as confidential, and we do not voluntarily reveal your confidential information unless otherwise authorized. Where the privilege typically comes into play is when a third party is trying to force disclosure of confidential communications between you and your attorneys – typically the other side in litigation. Second, the privilege only applies to communications between a client and a lawyer which are made in confidence for the purpose of seeking or giving legal advice. With this foundation in mind, consider the following key points:

  1. Your communications to and from non-lawyer consultants are not protected by the attorney-client privilege. For example, some employers hire non-lawyer consultants to advise them on wage and hour issues related to their payroll practices, to advise on policy development, to conduct an internal investigation of an employee complaint, or to prepare a response to a charge of discrimination. In these settings, everything the employer tells the consultant about the facts and management’s reasons for its actions, and everything the consultant tells the employer about its legal compliance or legal risks, including all emails, memos, letters and even notes from phone calls, are not attorney-client privileged. The Court can order that the employer disclose them to a plaintiff’s lawyer in a subsequent lawsuit if they don’t fall under another privilege. No such disclosure can be ordered if these communications are with legal counsel and the other basic rules for protecting the privilege are followed.
  2. Even when communicating with your attorneys, not all communications are privileged. Simply labeling a document or email as privileged does not make it so, and simply copying your lawyer on an internal email does not make it privileged. Also, be aware that communications such as emails which have multiple purposes, both legal and non-legal – may not be privileged as to any part of the communication. Try not to mix legal and non-legal communications.
  3. A communication will not be privileged if “outsiders” are included in the communication. For example, if you meet with your lawyer in a public place where third parties can easily overhear your discussion, that discussion might not be privileged. Similarly, if you ask your lawyer for legal advice at the end of another meeting which included members of the public or non-management staff, and they are still present, the discussion may not be privileged.
  4. A more modern problem is copying unnecessary people on an email to or from your lawyer – such as non-management employees, or even management employees who do not need to know the contents of that conversation. Be cautious about the use of the “reply all” button, the use of long email strings, and forwarding emails from your attorneys to others, either internally or externally. A good rule of thumb is to never forward an email to or from your lawyer to anyone outside your organization, or to anyone inside your organization other than employees (usually managers) whose jobs require that they provide information needed by your lawyer, or that they act on the lawyer’s advice.


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