Heightened Privilege Scrutiny Applied to In-House Counsel Communications 1

An Oklahoma federal court conducted an in camera review of various in-house counsel communications and, while ruling that the attorney–client privilege protected some, but not all, emails from disclosure,Slide1 provided unnerving comments about in-house counsel’s 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.

After reciting the threshold elements to secure privilege protection—communication made to an attorney for purposes of securing legal advice—the court noted that “the mere fact that an attorney was involved in a communication does not automatically render the communication subject to the attorney–client privilege.”

The court then outlined two privilege presumptions:

  1. If the communication involves outside counsel, then the court presumes that the communication concerns the provision of legal advice; but
  2.  If the communication involves in-house counsel, then the court presumes that the “attorney’s input is more likely business than legal in nature.”

Because of this in-house counsel business-presumption, courts apply a “heightened scrutiny to communications to and from in-house counsel in determining attorney–client privilege.”  This heightened burden requires in-house lawyers to “clearly demonstrate” that the putatively privileged communication pertained to legal advice.

The court reviewed several in-house counsel emails and determined that some fell within the privilege’s 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 illustrates—in blunt terms—how courts require in-house lawyers to meet a heightened burden.  Several courts agree with Kincaid that in-house counsel must “clearly show” via “specific facts” 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 counsel’s burden.