Focus on Ethics & Civility, 0419 UTBJ, Vol. 32, No. 2. 42
| Author | Keith A. Call |
| Position | Vol. 32 2 Pg. 42 |
March,
2019
In-House
Counsel’s Privilege Dilemma
Keith
-
Call
In-house
lawyers wear many hats. They are, of course, legal counsel
for the employer. They are also called upon to be business
people, often helping to establish policies and operations
that promote profitability and other business goals of the
organization.
The
roles of “lawyer” and “business
person” are often blurred. Along with the in-house
lawyer’s multi-faceted roles comes the difficult issues
of identifying what is privileged legal advice, what is a
non-privileged business communication, and how to protect the
former. This article provides a brief overview of the law and
some practice pointers.
Some
Basics
The
attorney-client privilege protects confidential
communications between the attorney and client made for the
purpose of facilitating the rendition of professional legal
services to the client. See Utah R. Evid. 504(b);
Utah Code Ann. § 78B-1-137(2); 1 Restatement (Third) of
the Law Governing Lawyers §§ 68-72 (2000). The
privilege applies to in-house counsel just as it would any
other attorney. See N.L.R.B. v. Sears, Roebuck &
Co., 421 U.S. 132, 154 (1974); Restatement § 72,
cmt. c. The privilege extends to a corporate client’s
representatives. Utah R. Evid. 504(b)(2).
Not
every communication between a lawyer and client is
privileged. Gold Standard, Inc. v. Am. Barrick Res.
Corp., 801 P.2d 909, 911 (Utah 1990). The privilege
protects only those disclosures “necessary to obtain
informed legal advice.” Id.
The
Primary Purpose and Significant Purpose Tests
For
in-house counsel, many communications with the client are a
mixed bag of both legal and business advice. So how do you
know if your communications, written or oral, are protected?
Many
courts have adopted and applied a “primary
purpose” test, holding that the in-house lawyer’s
communications are privileged only if the “primary
purpose” of the communication is to gain or provide
legal assistance. For example, in RCHFU, LLC v. Marriott
Vacations Worldwide Corp., No. 16cv01301-PAB-GPG, 2018
WL 3055774 (D. Colo. Dec. 31, 2018), the plaintiff sought to
compel disclosure of an unredacted copy of a strategic plan
memorandum addressed to Marriott’s Corporate Growth
Committee. Various lawyers within Marriott’s law
department participated in preparing the memorandum over a
period of six months. It contained
...
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