As discussed in several posts, including this one and this one, courts apply a heightened scrutiny when in-house lawyers assert the attorney-client privilege. And because of this heightened scrutiny, in-house lawyers often have several questions about the privilege’s application to their daily routines. In my latest article, FAQs about the In-House Attorney-Client Privilege, In-House Defense Quarterly, at 7 (Winter 2014), I address 10 privilege-related questions often raised by in-house counsel.
The questions presented are:
- When are employee-in-house communications privileged?
- Will a boilerplate contractual choice-of-law provision ensure the company receives its preferred privilege law?
- Will the privilege cover in-house counsel’s communications with employees of corporate owners, subsidiaries, or affiliates?
- Are employees’ communications with a foreign-based in-house lawyer privileged?
- Does the privilege apply if the in-house lawyer is not licensed in the state where he or she works?
- Who in the company has authority to waive the privilege?
- Does the privilege protect communications to the company’s lawyer-lobbyist?
- Does the privilege cover conversations between two non-lawyer employees?
- May in-house lawyers communicate with outside consultants under the privilege umbrella?
- Is an email discussing business and legal issues privileged?