Five Cases, Five Lessons: Emails and Privilege for In-House Counsel

Courts employ a heightened standard when companies attempt to shield their employee–in-house lawyer communications under the attorney–client privilege. The dominant reason for this scrutiny is the recognition that employees often involve in-house counsel in business and legal-related conversations, forcing courts to scrutinize whether the putatively privileged communication pertained to legal or business advice.Legal Advice Computer Key In Blue Showing Attorney Guidance

Emails, which serve as the primary (and too often exclusive) means of communications, exacerbate the business–legal dichotomy because they offer employees an easy avenue to “run a (business) issue by” the in-house lawyer. But emails also increase the chances of privilege waiver due to the lawyer’s lack of, or loss of, control. Employees may easily copy or blind copy non-lawyers with an email or forward an email to internal and external colleagues without restraint.

Unsurprisingly, courts face an increasing number of discovery-privilege disputes that involve email communications. Email privilege disputes do not necessarily arise because an email is involved—indeed, an email is, at bottom, simply a form of communication. But privilege issues that otherwise may not ripen for dispute resolution arise because the communication occurred via email.  In my latest article, Emails and Privilege for In-House Counsel, published in ALM’s
The Corporate Counselor law journal newsletter, I briefly review five 2013(ish) cases involving privilege issues that arose in the email context, and offer take-aways for in-house counsel’s use in 2014 and beyond.

You may access the article here.  I hope you enjoy the read.  And for other posts pertaining to emails and the attorney-client privilege, see my posts about corporate executives’personal emails on company networks, dual-purpose emails, and why emails, privilege, and in-house lawyers present a tricky mix.