Com Client Privilege With Former Employees
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How to fill out Notice Of Attorney-Client Privilege Regarding E-Mail Transmission?
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FAQ
2 Although the conditions underlying communications with former employees are different, several courts have held the privilege applies to former employees in the same way it applies to current employees, while other courts have universally rejected any extension of the privilege.
Also known as a corporate Miranda warning. The notice in-house or outside counsel provide a company employee to inform them that counsel represents only the company and not the employee individually (see Practice Note, Internal Investigations: Giving Upjohn Warnings: When to Give an Upjohn Warning).
Thus, the attorney-client privilege will generally protect pre-advice communications between non-attorney employees if the purpose of the communication was to facilitate the provision of legal advice and the information obtained in response to the communication was promptly provided to counsel.
A lawyer can face serious professional penalties, including disbarment, for violating the duty of confidentiality, including but not limited to attorney-client privilege.
Upjohn draws no distinction between current and former employees; instead, it requires courts to balance a number of factors in determining whether the privilege applies, including whether the communications: (a) were at the request of management; (b) concerned issues within the scope of employment; and (c) provided ...
