Subsidiaries, Affiliates, and Privilege Protection

In-house lawyers expect, or at least hope, that the corporate attorney–client privilege protects from discovery their daily communications with the company’s employees, agents, and representatives. We know that the chances of privilege success increase when the communications are confidential and facilitate the rendering of legal advice.

But privilege success also requires an often-forgotten factor: the communication must occur within the confines of an attorney–client relationship. In other words, is the lawyer’s communication with an employee or representative of the lawyer’s client?

A corporate entity employs in-house lawyers, and that entity is the known “client” part of an attorney–client relationship. For those jurisdictions that follow the Upjohn subject-matter privilege test, such as federal courts exercising federal-question jurisdiction, the privilege covers in-house counsel’s confidential and legal-advice related communications with company employees so long as the communication’s subject matter falls within the employees’ scope of employment.

But what if the individual with whom in-house counsel communicates is an employee or representative of a different, but related, entity, such as a subsidiary, parent company, or affiliate?  Many lawyers assume that an attorney–client relationship exists, but that is not always the case.

In my Fall 2019 Privilege Place column, I explore these issues and offer a few practice tips. The column, Subsidiaries, Affiliates, and Privilege Protection, was published by Today’s General Counsel.

Hope you find it useful.