Identifying if and when attorney-client privilege applies is an imprecise exercise requiring a fact-based inquiry into the communications in question. Courts consider whether the communication is between an attorney and his or her client, whether the communication constitutes legal advice, and whether the communication can be considered confidential.
The inquiry becomes increasingly complicated when corporate employees fail to understand, and in-house attorneys fail to clarify, that their trusted legal advisor on business matters does not represent the employees’ personal interests but those of the organization. The myth that copying in-house counsel on an email or inviting in-house counsel to a business meeting is enough to keep a communication privileged continues to prevail in organizations. Continued confusion around the privilege and how it is invoked in various jurisdictions requires in-house attorneys to be vigilant and to help businesspeople to delineate between communications that are likely covered by the privilege and those that are not.