Attorney Client Privilege With In House Counsel In Wake
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Email communications are not covered by the privilege simply because an OGC attorney is copied on the email. The privilege only applies if the communication has a substantial purpose of seeking legal advice from an OGC attorney.
Therefore, controversy has emerged over the scope of the attorney–client privilege between the counsel and the president and vice president, namely with John Dean of Watergate notoriety. It is clear, however, that the privilege does not apply in strictly personal matters.
Although historically courts held there was no privilege, more recently courts—including one California court—have concluded that communications between attorneys and their firm's in-house counsel are privileged.
If the purpose is legal advice, the communication is privileged if it's confidential and between lawyer and client. On the other hand, if the lawyer is acting as a business negotiator or advisor, the communication probably is not privileged. An in-house lawyer fulfills multiple roles!
Common interest privilege, also known as the joint defense privilege, is an extension of attorney-client privilege that protects the compelled disclosure of communications between two or more parties and/or their respective counsel when the parties are allied in a common legal interest.
For those lawyers who are employees of one company, they are not considered to have a private practice or a public practice. These lawyers are called “in-house counsel.” That means they are directly employed by one client and are typically prevented from being able to take on any other clients.
For example, your indictment may be a public record, but if your attorney gives you a copy of the indictment, you aren't required to disclose that you were given the document because that fact is privileged. Attorney-client privilege extends to intended documents that weren't delivered.
Identify privileged documents (including notes of privileged conversations) as such, using headers such as “privileged and confidential attorney-client communication” or “privileged and confidential prepared at the request of counsel.” In addition, maintain dates and names of participants, meetings, and distributions ...
Crime or Fraud Exception. If a client seeks advice from an attorney to assist with the furtherance of a crime or fraud or the post-commission concealment of the crime or fraud, then the communication is not privileged.
Working as an in-house counsel isn't always riveting or, despite unfounded rumors, particularly relaxing. It's a job. And as with any job it has its peaks and troughs. In-house counsel is a mix of highs and lows, the buzz of providing value to the business pitted against more monotonous and mundane tasks.
