EMPLOYMENT LAW ISSUES AND THE
ATTORNEY CLIENT PRIVILEGE:
PRACTICAL TIPS FOR
IN-HOUSE COUNSEL
Presented on April 8, 2014 by:
Elizabeth L. Lewis
Cooley LLP
elewis@cooley.com
Sozeen Mondlin
The MITRE Corporation
Elizabeth L. Lewis – Cooley LLP
Elizabeth Lewis is a partner in the Employment & Labor practice at Cooley LLP. Her practice
focuses on labor and employment law, civil rights law and litigation. In her employment practice
she works with clients to find cost-effective business solutions to employment problems. She
works on a broad spectrum of employment issues in a wide variety of industries. An experienced
litigator, Ms. Lewis handles employment, contract and civil rights lawsuits, including jury trials and
class actions, at the trial and appellate level.
Ms. Lewis is named annually in the Chambers USA list of America's Leading Lawyers for Labor &
Employment and in The Best Lawyers in America. She is an author of the Virginia Employers
Guide to Labor Law with Michael F. Marino, Stephen W. Robinson and Clifford R. Oviatti, Jr.,
Virginia Chamber of Commerce (1989). She is a Director of the Greater Washington Board of
Trade, a member of the Economic Club of Washington and the organizing Board of MindShare,
and is an active member of the Women's Advisory Board of the Girl Scout Council of the National
Capital Area. She is a past Chair of the Alexandria (VA) Chamber of Commerce.
Ms. Lewis received her law degree from the University of Virginia, Order of the Coif and her AB,
cum laude in American Studies from Smith College.
Sozeen Mondlin – The MITRE Corporation
Sozeen Mondlin is Associate General Counsel and Director of Compliance for The MITRE
Corporation ("MITRE"). MITRE is a systems engineering and information technology company
that works in the public interest on defense and intelligence, aviation, civil systems, homeland
security, and the judiciary and healthcare.
Ms. Mondlin created and directs MITRE's ethics and compliance program. She also is
responsible for advising management on employment law and employee relations and for
oversight of the company's litigation.
Ms. Mondlin is a graduate of Wellesley College and Stanford Law School.
The Attorney-Client Privilege Is
Important
• It allows clients to discuss candidly difficult employment
issues, find solutions and work through drafts of
documents without such communications being subject
to disclosure in a legal proceeding.
• Preserving the privilege isn’t easy: if the correct steps
aren’t taken to preserve the privilege, it will not attach.
Objectives of this Presentation
• Understand the scope of attorney-client privilege and
how to use it effectively
• Application of privilege to corporations
• Distinction between privileged communications and information
communicated to lawyer that is not privileged
• Understand how to document, distribute and retain
privileged communications
• Understand how privilege applies to in-house counsel
• Understand how privilege applies to investigations
• Understand waiver of the privilege
Elements of the Attorney-Client Privilege
• The attorney-client privilege protects communications
between a client and that client’s attorney when the
communications are made:
• in confidence
• for the purpose of seeking, obtaining or providing legal advice.
• Communications cloaked with the attorney-client
privilege are subject to protection from disclosure.
• The client (not the attorney) owns the privilege.
Debunking Misperceptions
About Privilege
• “Privilege” does not protect facts communicated to counsel
• “Privilege” does not cover everyone in the corporation or everyone
working with the corporation
• Generally, no privilege:
• If communication has primarily non-legal objective
• If communication is personal musing rather than request for
advice
• Copying attorney does not automatically make a communication
privileged
• Confidential information that is not generally available to the public
CAN be required to be produced in litigation unless it is privileged.
Maintaining the Privilege
• The attorney-client privilege protects communications
made in confidence
• Method of communication must be intended to be
confidential
• Ensure that the communication is not overheard
• Restricted access to the communication
• Treat the communication as privileged at the time of
creation
• The privilege cannot be asserted after the fact
Corporation as a Client
• The privilege only extends to communications made
between the client and that person or entity’s
attorney
• When the client is a corporation, whose
communications with counsel are privileged?
Corporation as a Client
• A corporate entity can only act through individuals. . .
• but the attorney-client privilege does NOT cover:
• Everyone in the corporation
• Everyone working “with” the corporation
• Everything an attorney says or writes
Corporation as a Client
There are two ways courts have determined which company employees can
have privileged discussions with legal counsel:
• First method: the privilege applies to communication with a company
employee if the communication:
•
was made at the direction of corporate supervisors to secure legal
advice from counsel
•
concerned matters within the scope of the employees’ corporate duties
• Second method: the privilege applies to a communication between a
company employee and counsel if the employee, regardless of title and job
duties,
• is in a position to control or even to take a substantial part in a decision
about any action that company may take upon the advice of counsel, or
• is an authorized member of a body or group that has that authority
Corporation as a Client:
Scope of the Privilege
• If employee has privileged conversation with counsel
about company business:
• Can that advice be shared with other employees without
losing the privilege?
• Can the advice be discussed with others without losing the
privilege?
• How far does the privilege extend?
Hypothetical #1
Corporation as a Client
• Company is going to terminate an employee and is considering
offering a severance package. The Head of Human Resources
emails In House Counsel and Cooley to assess the risks and
severance options. After consultation with In House Counsel,
Cooley lawyer respond to HR via email.
• HR forwards the Cooley email to CEO copying Cooley and saying:
“See email from Cooley below. Let me know your thoughts.”
• Privileged?
• Yes.
• CEO forwards email to COO copying HR and states: “I’m fine telling
counsel 3 months of severance and COBRA, but not acceleration.
What do you think?”
• Privileged?
• Yes.
Hypothetical #1
Corporation as a Client
• COO responds to CEO and states: “I agree but I’m concerned that
she could cause a lot of turmoil and dig up some other skeletons if
she sues so I’d be flexible on acceleration.”
• Privileged?
• Maybe.
• What if COO emails CEO and states: “What a joke. The squeaky
wheel always gets the grease.”
• Privileged?
• Likely Not.
Corporation as a Client:
Scope of the Privilege
• Sharing legal advice and discussing it within the company
retains the privilege if distribution is limited and
communications are directly related to the rendering or
seeking of legal advice.
• Conversations and written/electronic communications may
lose the privilege if widely distributed or intermixed with purely
business considerations or personal musings.
Inter-Corporate Communications
• Parent – Subsidiary
• Who is the client?
• Who does the lawyer represent?
• The lawyer may not represent all of the related entities
How Does the Privilege Apply to
Communications with Third Parties?
• The attorney-client privilege attaches to communications with legal counsel
including representatives of the lawyer such as:
• Paralegals
• Investigators
• Patent Agents
• The majority of courts find NO privilege attaches to communications, even if
they are related to legal matters, between an individual who is not a lawyer
and any of the following:
• Accountants
• Investment bankers
• Financial advisers
• Reorganization consultants
• PR firms
Hypothetical #2
A/C Privilege and Third Parties
A terminated employee has alleged discrimination. The company hires an IT
consultant to image the computers of the former employee and his boss. A
week later, the IT consultant sends a report to the company labeled “Confidential
& Privileged.”
The report states that the boss spends a lot of time accessing pornographic
internet sites and further reports that the former employee’s boss made a
profane, offensive reference about the former employee’s sexual orientation.
• Is the report protected by attorney/client privilege?
• No.
• Problematic if report reveals damaging information and/or communication.
• Other examples:
• HR prepares independent analysis of wage and hour classifications.
• Accounting prepares calculation of unpaid overtime.
Hypothetical #2 (Analysis)
A/C Privilege and Third Parties
• What could the Company have done to preserve the
privilege?
• Use counsel to protect the investigation
• Where lawyers takes charge of process, it can be protected
• Lawyer’s communications to third parties may be privileged
• Communication must be “reasonably necessary” for the
purpose of transmitting information or furthering client’s
interest
• Compare: Lawyer’s communications to client’s agents and
employees generally privileged
Hypothetical #2 (Analysis)
A/C Privilege and Third Parties
• Typical Scenarios
• Imaging computers
• Forensic investigators/accountants
• Private investigators
• Pictures taken of plaintiff and sent to attorney?
• No A/C privilege, see Suezaki v. Sup. Ct. (1962) 58 Cal.2d
166, 173-177.
• USPS v. Phelps Dodge Refining Corp., 852 F.Supp. 156, 161
(E.D.N.Y.1994).
• No privilege applied to communications made by environmental consultants to
company where consultants had been retained by company to conduct
environmental studies in response to request from a state agency and were not
employed by counsel specifically to assist them in rendering legal advice.
Communications vs. Information
The attorney-client privilege protects communications, not
information
• The communication can take any form; written, verbal, electronic.
• The distinction between communications and information is
critical to the proper application of the privilege to pre-existing
documents.
• If the client supplies to the attorney documents that were not
created for the purpose of communicating with the attorney,
those documents do not acquire a privilege status merely
because of their conveyance or communication to the attorney.
• Only the fact that the documents were sent to the attorney and
any communication to the attorney about the documents is
privileged.
Communications vs. Information
Pre-Existing Documents
• Labeling an email to an attorney “confidential” will not protect it if its
contents do not meet the test for privileged communications.
• Notes made by the client for the purpose of eliciting legal advice or
obtaining legal assistance are privileged, even if they were prepared
before counsel was retained and weren’t requested to be prepared by
counsel.
• Documents used in the normal course of business that are later shared
with the attorney are NOT covered under the attorney-client privilege.
• An e-mail sent to a broad distribution list and copied to the attorney
does not become “cloaked” with the attorney-client privilege by copying
the attorney.
• Documents that were privileged prior to the communication retain their
privilege when sent to other counsel.
Hypothetical #3
Communication vs. Information
Company received a cease and desist letter from Competitor, claiming that newly
hired VP of Sales has violated non-disclosure and non-solicitation agreement
obligations to Competitor. Company gathers relevant documents for counsel and
labels them as “Confidential: Attorney-Client Privileged Communication.”
Company also prepares a timeline of events that occurred. Company sends email
to Company counsel, providing background information and setting up call.
Attached to email are the letter from Competitor, the “evidence” the Company
collected and the timeline.
Question: Is any of the “evidence” that Company collected privileged?
Answer: No.
Question: Is the timeline Company prepared privileged?
Answer: Yes.
Question: Is the email that Company sent to Counsel privileged?
Answer: Yes.
Privilege Only Applies to Communication
for Purposes of Legal Advice
• What is the “Primary purpose” of
the document ?
• Does it request or contain a
lawyer’s analysis or assessment
of legal risks or strategies?
• Was it requested by or for the
attorney?
• Was it sent it to legal counsel to
inform or assist counsel to provide
legal advice?
For Purposes of Legal Advice
Legal Review of Drafts
• The privilege can protect drafts of documents
• Drafts circulated to counsel for comments on legal issues
may be privileged if they are prepared or circulated for the
purpose of obtaining legal advice
• Best practice -- Mark the drafts “Attorney-Client Privileged
Communication”
• Remove the privilege legend when the document is put in final
form
• Examples include: disciplinary memos, communications with
employees about leave, performance plans, communications
with terminated employees.
Hypothetical #4
Legal Review of Drafts
Employee’s performance is deteriorating. Employee’s manager seeks counsel’s
assistance to prepare the counseling memo.
Question: Can drafts of the counseling memo be protected by the attorney-client
privilege?
Answer: Yes.
Analysis: Drafts exchanged between clients and their attorneys amount to a dialogue,
some of which can deserve privileged protection.
Roth v. Aon Corporation, Case No. 04 C 6835 (N.D. Ill. Jan. 8, 2009)
•
Email and its attached memo sent internally from CFO to other executives,
including the general counsel asking recipients to comment on the language of the
draft of a portion of Aon’s Form 10-K to be filed with SEC. Aon later filed the 10-K
in final form with the SEC but excluded some information that had been in the
draft.
•
Held: email was requesting legal advice and privileged by attorney/client privilege,
even though final SEC document was made public and email did not specifically
state that legal advice was sought.
Hypothetical #5
Maintaining the Privilege
The company is working with counsel to manage an employee (Ceci) who is
underperforming. The company and its counsel assess different approaches. Following
a meeting with the employee, the company puts the following note in the employee’s
personnel file:
I met with Ceci today. I followed the script that company counsel and I had
prepared last week. Counsel and I discussed offering Ceci a transfer to a different
sales team so she can have a fresh start. We also discussed addressing Ceci’s
performance issues, which Ceci was not happy to hear and immediately became
defensive. Counsel and I had discussed how to handle Ceci’s reaction and steer
her back to the point where we could have a productive dialogue. I tried but could
not get Ceci to engaged in a constructive discussion about her performance issues.
As recommended by company counsel, I gave Ceci a copy of the company’s
retaliation policy and told her that the company does not tolerate retaliation and that
she should report any indication that she is being retaliated against to me.
Question: Are there any issues with the company’s putting the note in Ceci’s personnel
file?
Answer: Yes, it could result in a waiver of the attorney-client privilege.
Hypothetical #5 (Analysis)
Maintaining the Privilege
Why is putting the note in Ceci’s file a bad idea?
• Many State laws (e.g. California, Massachusetts) allow employees to review
their personnel files and/or obtain a copy.
• Personnel file may be accessed by other employees who were not involved
in the legal matter for which counsel was sought and therefore are not within
the scope of the privilege.
McGee v. Parker Hannifin, No. 07-12373 (E.D. Mich. 2007).
• After McGee was fired, she requested and received a copy of her
personnel file, which contained 2 emails between HR and legal counsel
regarding McGee’s FMLA leave. McGee sued the company and
attached copies of the emails to her lawsuit.
• The company asserted that the emails were privileged asked that they be
returned but the court refused, reasoning that if HR was careless enough
to leave the emails in the file, then the company gave up its right to rely
on the privilege.
Hypothetical #5
Maintaining the Privilege
Assume that the note was not placed in Ceci’s file so the privilege has
not been waived. Ceci decides to sue the Company and files an action
in state court in NY for violation of the NY Human Rights Law, which
does not require exhaustion of administrative remedies.
The Company wants to use the note in the litigation to show it acted
appropriately and did not discriminate. Is there a problem with using the
note in court?
Answer: Yes, producing the note will waive the attorney client privilege
and the waiver may permit Ceci’s counsel to call company counsel to
testify and obtain copies of communications with counsel other than the
note.
Hypothetical #5
Maintaining the Privilege
The privilege can be maintained if the note is produced with the
legal advice redacted. How will this note be received at trial?
Redacted Note
I met with Ceci today. -----------------------------------------------------------------------------------REDACTED----------------------------------------------------------------------------------------------------------- which Ceci was not
happy to hear and immediately became defensive. --------------------------------------------------------------REDACTED-------------------------------------------------------------------------------------------------I tried but could not get Ceci
to engage in a constructive discussion about her performance issues. --------------------------------REDACTED------------I gave Ceci a copy of the
company’s retaliation policy and told her that the company does not
tolerate retaliation and that she should report any indication that she is
being retaliated against to me.
Hypothetical #5
Maintaining the Privilege
• How can the redacted note problem be avoided?
• Do not co-mingle legal advice with notes about
an employee that support and document
appropriate handling of employment matters.
• Do not place documents containing privileged
communications in employee’s personnel files.
• Follow best practices for email communications
with counsel (more to follow).
Maintaining the Privilege - Best
Practices to Avoid Waiver of Privilege
• If the document is asking for legal advice, provides information
to counsel or was prepared at the request of counsel:
• Mark it “Privileged & Confidential.”
• Emails – include in header along with subject
• If an attachment contains privileged communications,
label it too
• Date it!
• Documents that refer to privileged communications
should reflect the date, the participants (e.g., author,
recipients, cc:, bcc:, attendees and the fact that legal
advice was being sought and/or provided).
Maintaining the Privilege - Best
Practices to Avoid Waiver of Privilege
• Limit distribution within the company
• Once privileged information discussed in an email thread
• Cut the thread or start a new email
• Never disclose to anyone outside the company, even as a
bcc
• Remind others to not forward or share
• Cannot share privileged communication on social
networking sites, press releases, or SEC filings
• Limit disclosure of metadata from electronic documents
A/C Privilege and ERISA Plan
Fiduciary Exception
Fiduciary exception is based on two justifications:
• Fiduciary as proxy for the plan beneficiary
"When an attorney advises a fiduciary about a matter dealing with the
administration of an employees' benefit plan, the attorney's client is not the
fiduciary personally but, rather, the trust's beneficiaries." Washington-Baltimore
Newspaper Guild v. Washington Star Co., 543 F. Supp. 906, 909 (D.D.C. 1982)
• Fiduciary’s duty to disclose information related to plan
administration
“An ERISA fiduciary has an obligation to provide full and accurate information to
the plan beneficiaries regarding the administration of the plan. …Thus, an
employer acting in the capacity of ERISA fiduciary is disabled from asserting the
attorney-client privilege against plan beneficiaries on matters of plan
administration” In re Long Island Lighting Co., 129 F.3d 268, 272 (2d Cir. 1997)
A/C Privilege and ERISA Plan
Who Is a Fiduciary?
When a lawyer advises an ERISA fiduciary on matters of
plan administration the communication is not privileged.
A fiduciary under ERISA is a person who:
(1) exercises discretionary authority or discretionary control over
an employee benefit plan or over the management and
disposition of a plan’s assets,
(2) provides investment advice for a fee or other compensation,
or has the authority or responsibility to do so, or
(3) has discretionary administrative authority or responsibility
over the plan.
ERISA Plan Fiduciary Exception When Is Employer Acting as Fiduciary?
Communications with counsel may not be privileged if they involve:
• Benefits claims administration—Communications prior to final administrative
determination (e.g., denial of benefits)
• Plan administration
• Preparing draft communications regarding changes to plan benefits
• Management and investment of plan assets
• Advice regarding responses to participant inquiries
When the communication with counsel is related to Plan sponsor functions,
or personal liability the communication is privileged.
• Plan sponsor (“settlor”) functions include plan design, amendments or
termination
• Personal liability—seeking legal advice in anticipation of or to defend against a
lawsuit
Helpful Hint: When counsel is being paid from the plan—as opposed to
payment by the plan sponsor—the fiduciary exception will most likely apply
A/C Privilege and In-House Counsel
• In general, in the United States, the privilege attaches to a
business entity’s communications with in-house counsel in the
same manner as outside counsel.
• However, in-house counsel often wears “two hats”:
• Attorney for entity employer
• Business role with non-legal duties
• Primary purpose of communication must be legal advice
• Watch out for messages that relate to both legal and
business advice
• An employee’s communications with in-house counsel must
be within the scope of the employee’s responsibility.
Hypothetical #6
A/C Privilege and In-House Counsel
• Company is acquiring a small competitor. The General
Counsel (“GC”) helps negotiate the deal, assists in
drafting the pertinent documents and communicates with
the CEO on deal issues. She also advises regarding
changes in employment practices and fields questions
from store managers regarding these changes.
• Is an email from the GC to the CEO discussing pricing of
the deal privileged?
• No.
Hypothetical #6 (cont’d)
A/C Privilege and In-House Counsel
• What about an email from GC to CEO regarding the deal
pricing as well as the manner in which the payment
term and payment structure affect the timing of legal
disclosures?
• Maybe.
• What should the GC do to make this cleaner?
• Are the GC’s communications to the CEO regarding
employment practices privileged?
• Yes.
• Are the GC’s communications to the store managers
privileged?
• Yes.
Hypothetical #6 (cont’d)
A/C Privilege and In-House Counsel
• In re Avandia Marketing, Sales Practices and
Products Liability Litigation, MDL No. 1871 (E.D. Pa.
Dec. 7, 2009)
• Rejected privilege claims on various emails sent to a group of
person where one or more was an attorney but there was no
confidential information or request for advice.
• “[T]he corporation asserting the privilege must demonstrate that
the communication was made for the express purpose of
securing legal and not business advice.”
Investigations
• Determine whether to conduct a privileged or discoverable
investigation.
• Because employers are required by law to conduct investigations of
harassment to avoid liability, these investigations generally should not be
privileged.
• If there is no legal duty to investigate, and the results of the investigation
may be something the company does not wish to make public, conduct a
privileged investigation. Note that a privileged investigation may be
followed by a discoverable investigation if helpful.
• For a privileged investigation, begin by memorializing management’s
request for legal advice.
• Segregate privileged documents compiled during the investigation
• Conduct all communications privately (no third parties)
Investigations
• If the investigation itself is not privileged are attorneyclient communications related to the investigation
privileged?
 UNCLEAR
• McKenna v. Nestle Purina PetCare Co. No. 2:05-cv-0976,
2007 WL 433291 (S.D. Ohio Feb. 5, 2007) : Communications
to client providing advice about the investigative process and
resulting decisions by attorney consulted about investigation
who did not conduct interviews, make disciplinary decisions or
otherwise participate in the investigation itself was privileged.
Investigations
• If the investigation itself is not privileged are attorneyclient communications related to the investigation
privileged?
• Waugh v. Pathmark Stores, Inc. 191 F.R.D. 427 (D. N.J.
2000): communications with attorney following an employment
discrimination investigation about the results of investigation
and remediation were privileged.
• Koss v. Palmer Water Dept. et. al. Civil Action No. 12-30170MAP (D Mass. Oct. 7, 2013): ongoing active participation in
investigation by law firm in the form of guidance, advice and
direction to outside counsel (from separate firm) conducting
the investigation made firm’s communications not privileged.
Investigations
• Tips for maintaining privilege for communications with
counsel where the investigation is not privileged:
• Advice by In House Counsel who provide the Company with
both business and legal advice is at significant risk of being
considered NOT privileged – this is a good time to use Outside
Counsel.
• Where the investigation is conducted by Company employees
make sure that Outside Counsel’s role does not bleed into
participation in the investigation.
• Where the investigation is conducted by Outside Counsel
choose a different firm from the firm providing advice and
allow the investigating firm to operate independently.
Investigations
• When do documents from a privileged investigation lose
their protection?
• Ryan v. Gifford, 2007 WL 4259557 (Del. Ch. Nov. 30, 2007)
(unpublished opinion) (special committee of company’s board of
directors shared outside counsel’s special investigation report
with full board, including individual board members under
investigation, waiving privilege)
• SEC v. Schroeder, 2009 WL 1125579 (N.D. Cal. 2009) (attorney
interview notes from internal investigation privileged and not
waived by production of the final memorandum regarding
interviews)
Investigatory Reports and Work Product
• Information underlying an investigatory report may be protected by attorney
work product.
• Even where an investigatory report by counsel becomes public, notes made by
counsel in the course of the investigation may still be protected as attorney
work product.
• See, In re Vioxx Products Liability Litigation, 2007 WL 854251 (E.D. La.
Mar. 6, 2007) where outside counsel’s report to Special Committee created
by Board was published, but in a lawsuit that followed, notes and materials
prepared by the attorneys but not themselves part of the final report were
protected from disclosure as attorney work product. The court noted that
the documents reviewed by the attorneys could be obtained through
discovery and the witnesses interviewed by the attorneys could be
deposed.
The Privilege – Corporate Officers
Privilege is owned by company. A corporate officer claiming a
personal attorney-client relationship with corporate counsel must meet
the following test:
• Officer approached corporate counsel for the purpose of seeking
legal advice;
• He made it clear that he was seeking legal advice in his individual
capacity;
• Counsel communicated with officer in his individual capacity
(consider possible conflict with representation of company);
• The conversations with counsel were confidential; and
• Substance of the communications with counsel did not concern
matters within the company or the general affairs of the company.
See United States v. Norris, No. 10-4658 (3d Cir. Mar. 23, 2011).
Hypothetical #7
• ABC Corporation receives an inquiry from the federal government
regarding alleged price fixing activities. In response to the
inquiry, ABC Corporation engages legal counsel, Vicky Willwin, to
conduct an investigation on behalf of the company. Vicky has
several conversations with the CEO to gather facts for the
investigation. The government indicts the CEO for conspiracy to
fix prices and obstruction of the U.S. grand jury investigation.
• Vicky Willwin is asked to testify at trial. The CEO objects,
claiming an attorney-client privilege with Vicky Willwin.
Question: Can the CEO prevent Vicky from testifying?
Answer: No. The privilege belongs to ABC Corporation.
Privilege Outside the US
Differences from US Law
• Privilege as a rule of evidence or a professional rule of
secrecy
• Who is the “client”
• Treatment of in-house counsel
• Non-attorneys functioning in ways similar to US
attorneys
In House Counsel and Privilege
Outside the US
• More narrow outside the US
• Often privilege does not apply to communications with in house
counsel at all
• If it exists, it is based on “professional secret” approach
• in other words, it is about confidentiality, not about whether
government or other litigants can learn the information
• TIPS
• increase likelihood of privilege attaching by increasing US connection
• involve in house and external lawyers from the US
• retainer letters or document defining the nature of the attorneyclient relationship should refer to potential US investigations or
litigation
US or Foreign Law Applied?
• Federal Courts in the US
• Courts will apply the law of the country that has the
“predominant interest” or “most direct and compelling interest”
in the communication and confidentiality
• court looks to the country where the legal advice was
rendered or the legal matter is pending
Attorney-Client Privilege What to Remember
• Always consider whether, when and why to obtain legal advice
about employment matters – don’t wait until it is too late.
• Consider how to use and maintain the privilege in each situation.
• Clients need to be cautious when communicating about legal,
potentially legal or sensitive matters without counsel. Think about
whether a matter is privileged and whether it should be.
• Think carefully before retaining third party service providers
directly if the matter is legal, potentially legal or sensitive.
• Think carefully about confidentiality when communicating so you
don’t lose the privilege by how you communicate.
Attorney-Client Privilege –
What to Remember
• Consider requiring HR to work through drafts with
counsel to get a document right before it is final so the
drafts are not subject to disclosure.
• Do not mingle notes of advice from an attorney with
notes about the employee that need to be in the
employee’s file.
• When communicating with the business team,
separate legal advice from business discussions.
• When an investigation is to be conducted consider
whether or not it should be privileged.
Questions?