Communications between clients and their attorneys are generally protected. And courts have consistently recognized the attorney-client privilege applies to communications with in-house counsel just as with outside counsel.
However, not all communications between lawyers and clients are protected. The privilege only applies to communications made for the purpose of providing or obtaining legal advice.
This raises an issue with regard to in-house counsel, who often serve dual roles. They are frequently called upon to give business, as well as legal, advice. The attorney-client privilege protects the legal advice, but does not protect the business advice given by the in-house counsel.
In-house counsel must be aware of this issue and take steps to protect their legal advice from disclosure. Some specific ideas include:
- Educate management about the privilege and which communications are protected and which are not.
- If possible, separate communications containing legal advice from communications containing business advice.
- Label legal communications appropriately to designate them confidential and privileged.
- Clearly communicate to management which role the in-house counsel is playing when a communication is made.