4 myths about attorney-client privilege.

• Author: Griesing, Francine Friedman

Attorney-client privilege--in the news lately--increasingly comes up when the government alleges corporate misconduct, and prosecutors are using the threat of severe penalties to waive the privilege in exchange for leniency.

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Attorney-client privilege protects the client from having to disclose confidential communications when the attorney is providing legal advice. Questions about the limits of attorney-client privilege usually come up in litigation when an adversary seeks disclosure of confidential information.

Let's dispel some myths about the corporate attorney-client relationship. Answer True or False to each:

1 Corporate counsel represents you personally in work-related matters because you are a company executive.

False. Corporate counsel represents the corporation, not you, the individual. Confidential information about company activities communicated to company counsel may be privileged, but that privilege belongs to the company, not you. This can create conflicts of interest when an executive seeks advice from corporate counsel on the executive's own actions that may expose himself and the corporation to liability.

2 Anything discussed with corporate counsel is protected by attorney-client privilege and must be kept confidential.

False. The fact that a client communicates information to its attorney does not make that information eligible for protection. The information must be confidential and even then, it is not privileged unless it is related to legal advice provided. The failure to delineate the different parts of the exchange with counsel may jeopardize privilege protection for the entire exchange. If you provided counsel with information that was not confidential, merely telling it to counsel does not cloak it with protection.

3 You may share the substance of your communications with counsel with your colleagues without jeopardizing the privilege.

False. Including extraneous employees in legal discussions can undermine protection that might otherwise exist. Emailing legal memoranda to a broad audience will also trigger a waiver. Only those who have a legitimate right to know should be party to privileged communications.

4 Neither the corporation nor its counsel may reveal the substance of those communications without your express consent.

False. It is up to the company to determine whether to preserve the confidentiality of your communications with corporate counsel or to waive it. Should the company...