An Oklahoma federal court conducted an in camera review of various in-house counsel communications and, while ruling that the attorneyâclient privilege protected some, but not all, emails from disclosure, provided unnerving comments about in-house counselâs burden in establishing the privilege. Kincaid v. Wells Fargo Securities, LLC, 2012 WL 712111 (N.D. Okla. Mar. 1, 2012). You may access the opinion here.
Privilege Presumptions
After reciting the threshold elements to secure privilege protectionâcommunication made to an attorney for purposes of securing legal adviceâthe court noted that âthe mere fact that an attorney was involved in a communication does not automatically render the communication subject to the attorneyâclient privilege.â
The court then outlined two privilege presumptions:
- If the communication involves outside counsel, then the court presumes that the communication concerns the provision of legal advice; but
- Â If the communication involves in-house counsel, then the court presumes that the âattorneyâs input is more likely business than legal in nature.â
Heightened Scrutiny
Because of this in-house counsel business-presumption, courts apply a âheightened scrutiny to communications to and from in-house counsel in determining attorneyâclient privilege.â This heightened burden requires in-house lawyers to âclearly demonstrateâ that the putatively privileged communication pertained to legal advice.
The court reviewed several in-house counsel emails and determined that some fell within the privilegeâs scope. But the court found that the privilege did not cover other communications, including an email from a HR representative to an in-house lawyer.
POP Analysis
The Kincaid case illustratesâin blunt termsâhow courts require in-house lawyers to meet a heightened burden. Several courts agree with Kincaid that in-house counsel must âclearly showâ via âspecific factsâ that the putatively privileged communication originated because of legal advice. See this post and this post for other cases. The Kincaid court, however, goes further and expressly presumes that in-house lawyers operate in a business role. This presumption only increases in-house counselâs burden.
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