Instructive Attorney-Client Privilege Opinion for In-House Counsel

The Idaho federal district court issued an instructive opinion regarding application of the attorney-client privilege to in-house lawyers where business and legal advice are at issue. DeWitt v. Walgreens, No. 4:11-cv-00263-BLW, 2012 WL 3837764, (Idaho Sept. 4, 2012). Let’s review.

Policy Drafting

The plaintiff sought communications exchanged between a Walgreens’ Executive Pharmacy Director and its in-house counsel regarding the drafting of Walgreen’s Immunizer Policy. Walgreens objected to deposition questions regarding the policy, arguing that the in-house lawyer was heavily involved in the drafting of the policy.

Ruling

But the trial judge noted that just because a person is a lawyer “does not cloak everything she says or hears with the privilege” and that “corporations may not conduct their business affairs in private simply by staffing a transaction with attorneys.”

The court reiterated what many courts hold–that, unlike outside counsel, communications between in-house counsel and company representatives are not presumptively privileged.  Rather, in order to gain protection of the attorney-client privilege, the in-house counsel must make a clear showing that the company representative–the communicator– made the communications for purpose of rendering legal advice.

With these limiting principles, the court permitted the company representative’s deposition and even outlined an array of questions that opposing counsel should ask to delineate which communications were business related and which were for purpose of rendering legal advice.

These questions included whether, during meetings, the company representative discussed business and economic factors for formulating the Immunizer Policy, and whether they discussed financial factors related to the policy.

POP Analysis

Courts take a skeptical view of the attorney-client privilege when asserted by in-house lawyers, and require a heightened showing that the communications with in-house lawyers are not for business purposes, but rather for the single purpose of the lawyer rendering legal advice.

In-house lawyers should take note of this heightened burden, and cloak their communications and documents with the appropriate “confidential and privileged” labels and statements, and otherwise prepare their documents in such a way that it will be easier for trial judges to see and understand that the communications related to legal advice.