Four Strategies for Avoiding Privilege Pitfalls

Two fundamental and related aspects of the client-lawyer relationship are the lawyer’s obligation to protect the client’s secrets and the client’s right to prohibit prosecutors, juries, and the general public from accessing its legal communications. These related protections are critical to the American justice system. They allow clients to secure legal advice based on all relevant information—even information that is potentially damaging or embarrassing for the client.

Without such assurances of privacy, clients could withhold crucial details, impeding counsel’s ability to provide sound advice or maintain a zealous defense. A client’s ability to confide in counsel is critical to the formation of the trust-based relationship necessary to the proper operation of the American legal system.

Understanding the Basics: Foundational Elements

The foundational elements of the attorney-client privilege are a communication between attorney and client for the purposes of securing legal advice where the privilege has not been waived.

This article identifies four crucial areas where legal practitioners must exercise diligence to avoid pitfalls in preserving the attorney-client privilege and protecting client confidences: (1) distinguishing legal communications between attorney and client from nonlegal communications, (2) determining who has authority to speak for an entity client, (3) corporate representation in internal investigations, and (4) the importance of privilege logs.

Distinguishing Communication: Legal or Not?

Lawyers must be vigilant in distinguishing between professional legal communications and nonlegal, casual conversations. The intent behind each interaction should be clear. Only those directly related to seeking legal advice are protected under the attorney-client privilege. When there is any doubt, the client should be promptly advised of the risk that the communication at issue could be subject to disclosure. If a client shares sensitive information that is unrelated to the underlying matter and not shared for purposes of obtaining legal advice, the client should know that the information may fall outside the scope of the attorney-client privilege. It is the attorney’s job to make sure the client understands and appreciates that distinction.

Corporate Complexities: Who Speaks for the Client?

Lawyers represent corporate entities as often as they represent individuals. When a lawyer represents a corporate client, determining what person or group of people can speak for “the client” presents a unique set of challenges. Different jurisdictions apply different standards, and the answer can depend on the nature of the legal issue involved as much as it can depend on the identity of the corporate representative. A careful lawyer should understand the rules that apply in the lawyer’s jurisdiction and always consider whether a discussion with a corporate representative is necessary to provide or act on his or her legal advice and whether that representative is going to be considered an agent acting within the circle of privilege in the governing jurisdiction.

Protecting the Client in Internal Investigations: Upjohn Warnings

During internal investigations, lawyers are frequently called upon to interview employee witnesses. It is not uncommon for employees to be confused about who the interviewing lawyer is representing. To avoid confusion, conflicts of interest, and potential ethical problems, corporate counsel should consistently clarify the identity of the client they are representing and spell out the practical consequences.

Incorporating an Upjohn warning (named after the Supreme Court’s seminal 1981 decision) into the standard interview outline should be a standard practice for corporate counsel. An Upjohn warning advises the corporate employee that the lawyer is the company’s lawyer, explains that the company (not the employee) controls the privilege, and warns the employee to maintain and protect the confidentiality of the discussion. Failing to provide a transparent explanation of a lawyer’s role in an internal investigation doesn’t just risk the company’s privilege; it can create conflicts of interest and related ethical concerns that could ultimately prevent the lawyer from continuing the representation. It is better to ensure that the employee understands the ground rules up front than to risk a problem arising later.

Protecting the Privilege in Litigation: Timely and Accurate Privilege Logs

The creation and management of privilege logs in litigation can require meticulous attention to detail. Documents evidencing privileged communications or protected attorney work product should be as detailed and informative as possible. Errors or oversights risk the inadvertent forfeiture of the applicable privilege—potentially exposing sensitive and confidential information. The temptation to delay the production of privilege logs should be avoided, as should the temptation to “farm out” the task of generating those logs to inexperienced junior lawyers or nonlawyers without proper guidance. Privilege logs often result in motion practice challenging the validity of certain privilege claims, and lawyers should ensure that their privilege log is built on solid ground.