Don’t assume the attorney–client privilege protects all pre-litigation communication with in-house counsel. That privilege may not attach or may be easily waived by the unwary.

A dangerous and common misconception in the practice of law is that all communications between business personnel and in-house counsel are protected by the attorney–client privilege. An email between nonlawyer corporate employees that merely copies an attorney in the corporate legal department offers no more protection than a privilege legend at the bottom of the email asking an in-house attorney to go to lunch. If company employees and the in-house and outside counsel with whom they work take a cavalier approach to privilege, they risk a court strictly applying the elements of the attorney–client privilege and finding one or more missing.

Originally published in In-House Defense Quarterly - Summer 2020.