10 FAQs about the In-House Attorney-Client Privilege

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:

1. When are employee-in-house communications privileged?
2. Will a boilerplate contractual choice-of-law provision ensure the company receives its preferred privilege law?
3. Will the privilege cover in-house counsel’s communications with employees of corporate owners, subsidiaries, or affiliates?
4. Are employees’ communications with a foreign-based in-house lawyer privileged?
5. Does the privilege apply if the in-house lawyer is not licensed in the state where he or she works?
6. Who in the company has authority to waive the privilege?
7. Does the privilege protect communications to the company’s lawyer-lobbyist?
8. Does the privilege cover conversations between two non-lawyer employees?
9. May in-house lawyers communicate with outside consultants under the privilege umbrella?
10. Is an email discussing business and legal issues privileged?

You may access the article here.  My thanks to DRI, the publisher of the fine In-House Defense Quarterly journal, for allowing the republication of my article on this blog.