It’s simple—the attorney-client privilege protects from discovery communications between a client and his or her lawyer. It’s challenging—the privilege applies to communications between (some) corporate representatives and outside counsel, depending whether federal or state privilege law applies; and if state law, which state. It’s convoluted—the privilege protects communications between (some) corporate representatives and in-house counsel, but only if U.S. law applies, the issue arises in an advantageous jurisdiction, and in-house counsel satisfy a heightened burden, prove the communication arose in a legal (rather than business) capacity, and the company employee did not waive the privilege by inappropriately disseminating the communication.
American law acknowledges the protections of an in-house attorney-client privilege, but “what is unclear is exactly how far this protection extends regarding the corporation’s employees and agents.” E.I. DuPont de Nemours & Co. v. Forma-Pack, Inc., 718 A.2d 1129, 1141 (Md. Ct. App. 1998). Courts recognize that “[d]efining the scope of the privilege for in-house counsel is complicated,” U.S. Postal Serv. v. Phelps Dodge Refining Corp., 852 F. Supp. 156, 160 (E.D.N.Y. 1994), and in-house lawyers and their in-house clients should too. The greatest source of difficulty concerns whether the employee communicated with the in- house lawyer so that he or she could render legal advice to the company. Courts effectively correlate in-house lawyers with Janus, the two-faced Roman God of Transition, with one face symbolizing counsel’s lawyer role and the other personifying his or her business role.
Originally Published in In-House Defense Quarterly, Winter 2014 Issue.
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