Focus on Ethics & Civility, 0419 UTBJ, Vol. 32, No. 2. 42

AuthorKeith A. Call
PositionVol. 32 2 Pg. 42

Focus on Ethics & Civility

Vol. 32 No. 2 Pg. 42

Utah Bar Journal

April, 2019

March,

2019

In-House

Counsel’s Privilege Dilemma

Keith

  1. 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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