Corporate clients often believe that all internal communication with the company's in-house counsel are protected by the attorney-client privilege, and many attorneys share that view. But there are many situations, including those discussed in this article, in which communication with in-house counsel will not be privileged and could be subject to discovery in litigation. It is, of course, important once you are in litigation to understand when and under what conditions such communication must be produced. But it is perhaps even more important for attorneys to understand and educate their clients about these concepts on the front end, before litigation, so that the clients can take appropriate steps to protect important communication. By the time the document request lands in your inbox, it may be too late.
The core of the attorney-client privilege is confidential communication between or among an attorney and client for the purpose of securing legal advice that has not been waived. But, as with many legal tests, the elements are more easily recited than applied, and each can present particular problems when applied to in-house counsel.