Is This Conversation Privileged?

By Erin LaBrache, Esq.

We have all heard that communications between clients and their attorneys are privileged. But what about when the communication is made before the attorney is retained, or with in house counsel? Are the communications between non-legal employees ever privileged?

Let’s first explore why courts recognize attorney-client privilege. The courts have recognized the importance in protecting certain communications from disclosure to the other side. The attorney-client is one such communication. The purpose of the privilege is to encourage clients to be forthcoming with their attorneys so that the attorney is sufficiently well-informed to provide sound legal advice. The privilege attaches only where extending its protection would foster more forthright and complete communication between the attorney and client about the client’s legal dilemma.

The attorney-client privilege encompasses not only qualifying communications from the client to the attorney, but also communications from the attorney to the client in providing legal advice. However, all communications between an attorney and client does not necessarily mean that they are privileged. The attorney-client privilege only protects communications between the attorney and her client made in confidence for purposes of securing legal advice. Thus, communications that pertain to business rather than legal matters may not be privileged.

This arises often in the corporate setting where in-house counsel may be involved intimately in the corporation’s day-to-day business activities and may serve as integral players in business decisions or activities. In such an example, the privilege does not protect the attorney’s business advice. Corporations may not conduct their business affairs in private simply by staffing a transaction with attorneys. On the other hand, communications between corporate personnel and in-house counsel made for the purpose of securing legal advice are protected by the privilege.

Another area of confusion is how to determine when a communication between non-legal employees is privileged. When non-legal employees discuss or transmit legal advice given by counsel, such communications reveal privileged communications and are deemed privileged. Also, materials transmitted between non-lawyers that reflect matters about which the client intends to seek legal advice are comparable to notes a client would make to prepare for a meeting with his or her lawyer...notes that could serve as an agenda or set of reminders about things to ask or tell counsel. It would undermine the purpose of the attorney-client privilege not to extend protection to such notes. Therefore, internal communications that reflect matters about which the client intends to seek legal advice are protected.

If you intend a particular conversation to be confidential, be mindful that the communication should be for purposes of securing or seeking legal advice. Remember that just because a lawyer may participate in your “business” decisions, those conversations may not be protected or deemed “privileged.”

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