In-House Counsel: Protecting Confidential Communications and Work Product, 0215 RIBJ, 63 RI Bar J., No. 4, Pg. 5

Author:David A. Wollin, Esq. Hinckley, Allen & Snyder LLP.

In-House Counsel: Protecting Confidential Communications and Work Product

Vol. 63 No. 4 Pg. 5

Rhode Island Bar Journal

February, 2015

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0 January, 2015

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0 David A. Wollin, Esq. Hinckley, Allen & Snyder LLP.

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0Jamal Burk Suffolk University Law School Student

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0Civil lawsuits and government investigations targeting corporations are routine these days, often involving substantial data and document collection from numerous sources. In-house lawyers play a critical role in this process, both in the investigatory stages and responding to requests for information. Their duty to safeguard internal confidential communications and work product from disclosure is particularly important. In so doing, in-house attorneys must recognize their dual responsibilities for both business and legal matters create potential obstacles to the successful invocation of the attorney-client privilege and the work product doctrine. As one court noted, "[communications that principally involve the performance of non-legal functions by in-house counsel are not protected, "1 Having a legal degree does not necessarily ensure in-house counsel's communications or work product will receive adequate protection. Hence, in-house counsel must be mindful of the pitfalls and how to avoid them.

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0Preserving Confidential Communications

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0The attorney-client privilege is one of the central tenets of legal representation. The privilege protects the communications between attorneys and their clients to encourage full and frank discussions. To invoke the privilege, there must be a showing that a confidential communication has occurred between the client and counsel made for the purpose of obtaining or providing legal advice. The privilege applies equally to in-house counsel and their clients. That is, the corporation itself, rather than any individual directors, officers or employees.

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0The complicating factor is that in-house attorneys are regularly tasked to perform non-legal duties or are merely kept in the loop in the mistaken belief counsel's involvement is sufficient to protect purportedly confidential communications. These circumstances create the greatest risk the attorney- client privilege will not protect communications the corporation expects will be protected. The burden of proof always remains with the corporation to prove the attorney-client privilege applies.

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0What's My Line?

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0In-house attorneys regularly wear more than one hat - providing business, human resources and even marketing advice. Courts addressing the dual roles of in-house attorneys have ruled consistently that communications providing business-related advice - as opposed to legal advice - do not receive attorney-client privilege protection.

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0Not all situations are clear-cut. Many communications involve both legal and business advice. According to the U.S. Court of Appeals for the District of Columbia Circuit in In re Kellogg Brown & Root, Inc.,[2] if one of the significant purposes of the communication was to obtain or provide legal advice, the document will be protected under the attorney-client privilege. Courts in other jurisdictions have been far less generous, ruling that, even if a business decision can be viewed as containing both business and legal evaluations, the business aspects are not protected simply because legal considerations were also involved, [3] If the communication reflects a business-centric purpose or relies on in-house counsel's business acumen, as opposed to legal advice, courts are less likely to apply the attorney-client privilege.

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0Regardless of the approach, in-house lawyers are advised to separate their legal and business advice to ensure the former receives adequate protection. By combining the two, in-house attorneys run the risk that the business advice will overshadow the legal advice, and the entire document will not receive any protection. When communications unavoidably have both legal and business content (and the two cannot be separated out), in-house counsel should state, expressly, they are providing a legal opinion or responding to a request seeking legal advice. Moreover, in-house counsel may want to include only their legal title on their communications to distinguish their non-legal roles. Likewise, they should keep their legal documents separated, and password-protected in a discrete database, with access solely to those with a need to know.

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0Are You Going to Label That?

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0Many lawyers - in-house counsel included - believe documents containing the phrase "privileged and confidential" or "attorney client privilege" have adequate protection from disclosure. Examination of labels is the starting point for any analysis about the applicability of the attorney-client privilege. Labeling allows in-house counsel to distinguish between protected and non-protected communications. It is especially important when there may be some question whether a communication is providing legal strategy or merely contains business-related advice. However, labeling alone does not guarantee protection and is not the benchmark against which the documents are judged. The substance of the communication must contain legal advice for it to be privileged.

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0In-house lawyers must avoid the urge to mark all their communications as protected by the attorney-client privilege or to encourage funneling all sensitive documents through their offices. Courts may view these actions as illegitimate attempts to hide business-related documents under the guise of the attorney-client privilege, [4] If that occurs, in-house lawyers run the risk that the privilege will not apply to any of the documents at issue.

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0The key lesson is that in-house counsel should always label their legal-related communications and avoid doing so for the non-legal ones. For communications with a mix of legal and business advice that cannot be separated, the better approach is to err on the side of caution and label the material as protected...

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