Protecting Privilege and Avoiding Waiver: Practical Advice for Businesses

Litigation is inevitable. From time to time, nearly all businesses have disputes with customers, suppliers, distributors, competitors and/or partners. While most disputes are amicably resolved, some are escalated to lawyers or proceed to litigation.

As you analyze the merits of a dispute and communicate with your team and your lawyers, you should be aware of the basics of two legal doctrines — the attorney client privilege and the attorney work product doctrine — that may shield certain communications from your litigation opponent and avoid waiving those important protections.

Of course, simply copying counsel on an email chain does not ensure the document will be able to be withheld from discovery. Generally, to claim attorney-client privilege, you must be seeking or receiving an opinion of law, a legal service or assistance in a legal matter. Communications between two business employees discussing the legal advice provided or requested from counsel may also be protected if those employees had a “need to know” the legal advice.

Similarly, not every email from your lawyer will constitute attorney work product. Typically, the communication must contain an attorney’s mental impressions, analysis or opinions to constitute attorney work product. And, depending on the law of the jurisdiction where the litigation is filed, additional requirements may apply to each of these doctrines. In Pennsylvania, for example, the law of attorney work product is significantly different in state and federal courts.

With this backdrop, we offer some pointers we hope you find helpful. We are available to discuss any questions you may have.

1. Do not forward privileged communications to anyone outside the company. Too often, clients believe that a communication to a third party has more force if the third party actually sees an email from a lawyer. But forwarding a lawyer’s advice may well waive attorney-client privilege and attorney work product protection — even if the third party has been engaged by the company as a media consultant, crisis manager or accountant.

Consider this hypothetical example. Company Senior Vice President, Jim, asks Company’s in-house counsel, Sara, a question about the legal requirements of merging two subsidiaries of the company. In a responsive email, Sara provides legal advice in response to the question and recommends a course of action. Her email is protected by the attorney-client privilege. But Jim forwards Sara’s email to his banking contact to alert him that changes to the subsidiary’s accounts will be forthcoming. Jim has likely waived the privilege. Jim could have achieved his objective (and avoided a waiver) by simply advising the banking contact that changes will be forthcoming — without forwarding or summarizing the legal advice or even explaining the reasons for the changes.

2. Know the law of privilege and work product in the relevant jurisdiction. If your company routinely conducts business in multiple states or in different countries, or if litigation may be filed in either state or federal court, understand when communications with, work performed by, or documents prepared by counsel will be afforded protection under the laws of that particular jurisdiction.

3. Consider structuring any investigations to be performed at the direction of counsel. Given the breadth of work product protection for documents prepared by or at the direction of attorneys, consider whether any investigation of facts that may be relevant to litigation should be conducted by or at the direction of an attorney. As long as summaries and notes prepared by counsel include the attorney’s mental impressions, they should be protected from disclosure. Alternatively, a non-attorney could conduct an investigation but only at the direction of an attorney.

4. When in doubt, give and receive advice orally. If counsel provides advice orally (and not in writing), the advice may also be protected from disclosure by these doctrines. You can avoid a potentially contentious issue at the written discovery stage if there is no document containing the advice, and lawyers questioning witnesses at a deposition or trial typically carve out from their questions anything the witness was told by a lawyer.

5. Make sure any in-house counsel who has a business function is aware of the importance of the specific role she is playing when communicating with non-lawyers. If your company has in-house counsel who also performs a business function, make sure she is acutely aware of the impact of acting in a legal capacity on the potential claim of privilege or work product when communicating with non-lawyers at the company.

To give this a “real world” context, let’s change the facts in our hypothetical involving Jim and Sara. This time, instead of asking Sara for the legal requirements of merging one subsidiary into another, Jim asks Sara for her opinion as to whether merging the two subsidiaries is the right strategic move for the company. If Jim sought Sara’s advice on this issue for a business purpose (rather than a legal purpose), his email—and her response—will generally not be protected by attorney-client privilege.

6. Label emails and other documents. Include a prominent label on privileged documents or attorney work product. For instance, if a business employee provides information — at the lawyer’s request — to a lawyer for use in litigation, the employee should label those communications “attorney-client privileged and attorney work product — requested by legal counsel.” Likewise, in-house counsel should clearly label their emails that provide legal advice “attorney-client privileged” and/or “attorney work product.” While these labels are by no means conclusive, they increase the chances that the document will not be forwarded to a third party and will be carefully considered for such protections, and they also demonstrate that the author believed the email was a protected communication.

Please contact Julie E. Ravis or your Stevens & Lee professional to discuss any additional questions about attorney client privilege or attorney work product or if we can otherwise be of assistance.

This News Alert has been prepared for informational purposes only and should not be construed as, and does not constitute, legal advice on any specific matter. For more information, please see the disclaimer.