Attorney-Client Privilege: What You Need to Know

​Many managers progress through their careers without a thorough understanding of employment defense strategies.  While you may hope that you never need them, it's wisest to bring yourself up to speed with certain elements of "Business Legal 101" to protect yourself and your company from unwanted legal exposure.  One such area that's really important to understand—but that's rarely taught in business schools or inhouse training workshops—is the attorney-client privilege.  True, you may not need to use it very often, but it's definitely worth adding to your vocabulary and your leadership toolbox.  

The attorney-client privilege is a way to address communication to your outside or in-house counsel when you need to send a message (i.e., letter or email) but don't want it to be potentially discoverable by opposing counsel if a lawsuit were to ensue.  For example, during the course of a workplace investigation, you may want to protect certain communications or recommendations from being introduced as evidence in later litigation. The attorney-client privilege, if used properly, should accomplish this task.  

The attorney-client privilege may be used when a complaint involves serious concerns (including potential criminal claims), may develop into a lawsuit, or may have the potential to impact a large number of employees (e.g., class action status), among other considerations. It is always best to contact your legal department in advance of launching an investigation when you suspect that the gravity of the situation may give rise to significant liability.  So be sure to discuss upfront whether your in-house counsel or outside defense attorney wants any particular emails or document exchanges protected.  Further, if you have any question whether or not you should be invoking the attorney-client privilege, always err on the side of caution and protect the documentation trail as much as possible.

Note that there are no guarantees when it comes to invoking the attorney-client privilege.  Just because you mark a document "Privileged and Confidential" doesn't mean that a plaintiff's attorney won't challenge the privilege and that a court won't overturn it.  Therefore, let caution rule the day when it comes to exchanging emails, documents, or other electronic communications that you mark privileged.  After all, it could come as quite a surprise if a judge allows the communication to be shared with the other party and made part of the public record, even though you thought you followed the steps below properly.  The steps that follow will help increase the chances that a particular communication or series of communications can withstand legal scrutiny and remain privileged, but without a crystal ball, you can't guarantee that the privilege will be sustained because a court has the discretion to disallow the privilege.

That being said, you've got to know how to structure an attorney-client privileged communication to maximize the chances of it not being overturned by a court at some point in the future. To do so, follow these general rules: 

Rule 1: Address communications to your attorney. This could be your in-house counsel or outside counsel, but for the attorney-client privilege to become effective, it must be addressed to an attorney who is providing legal advice and counsel. The privilege does not protect communications between workers when no attorney is present. In other words, you can't send an email to your non-attorney boss and mark it "privileged and confidential" because without an attorney on the receiving end to provide legal analysis and advice, there's no mechanism to protect the communication from legal discovery.

Rule 2: End the communication by asking your attorney for a legal opinion and analysis.  You may be challenged in sustaining the privilege if you simply copy your attorney on your various emails without asking for official legal advice.  Instead, to sustain the privilege, a judge will generally want to see that you reached out to your attorney for a legal opinion and recommendation.  If successful, your description of the facts and your attorney's recommended course of action will be protected from plaintiff attorneys' eyeballs (and from a jury's considerations) should the case proceed to trial.

Rule 3:  Label the top of the communication or the subject line of an email: "Privileged and Confidential:  Attorney-Client Privileged Communication."  This notice should be prominent and easily viewable as soon as someone receives the communication.

Rule 4:  Copy only a limited number of people who have a legitimate need to know the information. Do not copy or share the document with others, or the privilege may be lost.  After all, if you copy 15 people on the communication, a court will likely infer that it wasn't all that confidential or proprietary to begin with.  So simply including too many people in the communication could jeopardize the privilege.  As a rule, try and limit the audience to either only the attorney or to the attorney plus one other person (for example, your boss).

Rule 5:  Do not communicate the information discussed with the attorney with others unless instructed to do so.  The nature of attorney-client privileged communications is that they are highly confidential, limited in distribution, and created at a particular point in time on a strict need-to-know basis.  Failing to create the document under such criteria could result in the loss of the privilege and the subsequent sharing of the material as part of the plaintiff attorney's case against your company.

Example of an Attorney-Client Privileged Document Structure

Subject Line of Email: 

Privileged & Confidential: Attorney-Client Privileged Communication

Heading of Email Body: 

Privileged & Confidential: Attorney-Client Privileged Communication

Email Content:

Dear Nina (your attorney's name):

I'd like your advice and counsel on the following matter . . .  [Details Here]

Please provide your legal analysis and opinion at your earliest convenience.  Thanks very much – Paul

Again, not all attorney-client communications will be deemed privileged once submitted in court, so always proceed with caution and continue to communicate in writing as if your document may be used as evidence in court at some point and blown up and placed in front of a jury.  You can't be careful enough when it comes to the possibility of your own communication to your attorney being employed as evidence against your own company.  When in doubt, pick up the phone and call your attorney before hitting the send button.  To quote the Benjamin Franklin axiom, an ounce of prevention is worth a pound of cure.

Paul Falcone (www.PaulFalconeHR.com) is CHRO at the Motion Picture & Television Fund in Los Angeles and author of 101 Tough Conversations to Have with Employees, 101 Sample Write-Ups for Documenting Employee Performance Problems, 96 Great Interview Questions to Ask Before You Hire, and 2600 Phrases for Effective Performance Reviews.  This article is adapted from 75 Ways for Managers to Hire, Develop, and Keep Great Employees (AMACOM / HarperCollins Leadership, 2016).