Preserving Attorney-Client Privilege: Recommended Approaches

What is attorney-client privilege?

Legal privilege, also known as attorney-client privilege or lawyer-client privilege, is a legal concept that protects the confidentiality of communications between an attorney and their client. In the context of internal investigations, legal privilege can play a significant role. When an organization conducts an internal investigation, it often engages external legal counsel to provide advice and guidance. The purpose of involving lawyers is to ensure that the investigation is conducted in a legally compliant manner and to protect the organization’s interests.

Legal privilege in internal investigations means that communications between the organization, its employees, and the external legal counsel are considered confidential and protected from disclosure. This privilege extends to documents, reports, emails, and any other form of communication that takes place for the purpose of seeking or providing legal advice.

Clients and lawyers should take into account several recommended approaches to preserve legal privilege in all situations, particularly when the attorney is capable of providing both legal and non-legal guidance. Certain significant factors to bear in mind include:

1. Legal and Business Advice

It is important for lawyers to make a conscious effort to maintain a distinction between legal advice and other types of advice, such as business advice. There may be instances where complete separation is challenging, particularly when lawyers become more involved in business decision-making. Nonetheless, this remains a crucial measure that lawyers and in-house counsel can adopt to mitigate privilege-related concerns.

2. Internal Investigations Structure

In the oral argument concerning In re Grand Jury, internal investigations were referred to as a “classic situation” where distinguishing between legal and non-legal purposes becomes challenging. While such situations may be inevitable in certain cases, a company can potentially navigate the issue by engaging external legal counsel to carry out internal investigations. This approach facilitates a more direct application of attorney-client privilege to any communications between the external counsel and company employees and/or in-house counsel.

3. “Privileged” Labels Application

Improper labeling can deceive individuals into a false belief of protection, and merely attaching the label “Attorney-Client Privileged” to an email or document that is clearly not privileged will not provide any safeguard, nor will it magically convert business advice into privileged advice. However, despite this limitation, it serves as a solid initial step and certainly represents a recommended approach.

4. Lawyers as Gatekeepers

Although non-legal corporate stakeholders should acknowledge the importance of legal privilege, it is the lawyers who bear the primary responsibility. It is the duty of legal counsel to ensure that written communications are limited to individuals for whom they are providing advice. Similarly, during meetings or calls, counsel should be able to clearly determine the purpose for each person’s presence to safeguard attorney-client privilege and prevent unnecessary dissemination of advice to a broader audience.

Adhering to recommended approaches to preserve legal privilege in all situations benefits both clients and lawyers by ensuring confidentiality, facilitating effective legal advice, supporting litigation strategy, upholding professional standards, and mitigating risks associated with disclosure.

Dive deeper and learn more! Join our webinar: Protecting Privilege in Internal Investigations: Issues and Challenges LIVE Webcast