Employment Law Commentary: Just Because It Looks Like Attorney-Client Privilege and Sounds Like Attorney-Client Privilege Doesn’t Mean It Is Attorney-Client Privilege

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The attorney-client privilege is one of the oldest and most respected privileges. The privilege was affirmed and seemingly expanded by the court in Upjohn Co. v. United States, 499 U.S. 383 (1981), which held that, in a corporate setting, the attorney-client privilege may extend to communications involving middle and lower level employees. Though this finding appears to offer expansive protection under attorney-client privilege, the reality is that opening up confidential communications to large groups risks waiver of the privilege. Recent decisions on the attorney-client privilege have examined the extent of the privilege. While each decision examines a different aspect of the attorney-client privilege, the take away from each is that proper steps must be taken to avoid waiver of the privilege. Below are the most recent cases on this point and practical tips for protecting confidential communications.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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