Attorney Client Privilege With Former Employees
Description
How to fill out Disclosure By Letter From Client To Attorney Regarding Division Of Fees Between Attorneys?
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FAQ
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.
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.
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).
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 ...