While not at all minimizing the significant health concerns arising from the COVID–19 outbreak, this global pandemic has significantly altered how—and where—lawyers work and dispense legal advice. The President’s Coronavirus Guidelines for America, available here, and the Centers for Disease Control and Prevention strongly recommend that we work from home and avoid in-person group meetings and travel. And with or without this governmental guidance, many companies are encouraging or requiring employees, including their lawyers, to work remotely.
These new realities alter how lawyers, including in-house counsel, interact with their clients. Clients are no longer meeting face-to-face in their lawyers’ offices. In the corporate world, employees can no longer drag an in-house lawyer into an in-person meeting or stop by the office to seek legal guidance.
The upshot is that lawyers will necessarily increase the number of videoconference meetings and the number of electronic communications, whether by email, text, messaging apps, or some similar avenue. And with the increase of written communications comes a concomitant increase in potentially discoverable communications and privilege challenges.
So, this is the perfect time to remind ourselves of proper privilege hygiene. Let’s not let poor practices during the current pandemic evolve into a privilege-loss epidemic in the months and years to come.
Attorney–Client Privilege: Foundational Elements
Lawyers can best implement proper privilege hygiene tips with a thorough understanding of the attorney–client privilege’s foundational elements. Without these elements, there is no privilege. The attorney–client privilege only protects confidential communications between an attorney and her client made for legal-advice purposes and kept confidential thereafter.
Privilege Hygiene Tips
With these essential elements as our guide, let’s consider a few practice pointers for working outside the office.
Connect through a VPN
When working remotely, strive to access your company or firm’s network through a Virtual Private Network (VPN) rather than simply communicating using public Wi-Fi options. Remember, the more secure the connection the less likely that one violates the confidentiality element. For more information, read this blog post.
Ensure an Attorney–Client Relationship
This often-overlooked element requires that lawyers and putative clients establish an attorney–client relationship before communicating. For in-house lawyers, ensure that you establish an attorney–client relationship with a subsidiary or affiliate entity before advising its employees. Read Penn State Loses Privilege Clash Over Internal Investigation, and the Reason May Surprise You for a lesson about this issue.
Is it a Communication?
Remember that the privilege only covers communications. Emailing or texting from home certainly constitutes a communication, so no worries there. But be careful about taking notes that you have no intention of communicating. Perhaps the work-product doctrine covers them, but if not then the privilege may not help. See Court Rejects Privilege for In-House Lawyer’s Handwritten Notations for more discussion on this topic.
Limit Written Communications
Let’s not forget how privilege issues arise—during a discovery dispute. It is much easier to discover written documents years after their creation than it is to discover—through a memory test—one’s verbal discussion. With in-person meetings and office drop-ins temporarily off limits, the inclination is to simply email everyone. Before doing so, see if a videoconference is feasible. Or, dare I say it, communicate through a phone call.
Do Not Over-Invite
When scheduling conference calls or video meetings, resist the urge to invite everyone with even a passing interest. A lawyer increases the chances of privilege protection if she invites to a legal-advice discussion only those who “have a need to know.”
One little-known privilege exception: Your dog’s presence during a conference call from your home office does not waive the privilege, even if the dog makes a “comment” or two. Dogs always have a need to know.
No one can schedule a call these days without sending a calendar invite. To improve the chances of the privilege protecting communications made during a conference call or videoconference, state on the calendar invite that the meeting is confidential, held for legal-advice or legal-related purposes, and is protected by attorney–client privilege. If a deposing lawyer ever asks a conference-call participant to reveal those verbal discussions, the calendar invite will help prove that the privilege protects those discussions.
When communicating via email, text messaging, etc., take the time to include privilege-invoking language in the communication. For example, include “Privileged & Confidential” in the email subject line. Begin the communication with an instruction that the communication is confidential, made so the lawyer can render legal advice, and should not be distributed to others without the lawyer’s written authorization. And send the email only to those who have a need to know—mass distribution is unhealthy for privilege protection.
Don’t forget that the privilege does not cover attachments to emails simply because the privilege protects the email. Courts assess an attachment’s privileged nature separate from the cover email. So, when attaching memos, spreadsheets, PowerPoints, and the like to your email, don’t assume their privileged status and separately label them as “Privileged & Confidential.” Read Developing Issue: Attachments to Privileged Emails Not Necessarily Privileged for more information.
Outside and in-house lawyers representing corporate entities often communicate with third-party consultants. The functional-equivalent doctrine may apply to protect these lawyer–consultant communications. Read about the doctrine in GC Forwards Outside Counsel’s Email to PR Consultant—Waives Privilege. Ensure that your company’s engagement agreement provides that the consultant’s communications with company lawyers are and must remain confidential. And when communicating, following the same written communications tips above.
Not all jurisdictions apply the privilege to communications between corporate counsel and former employees—even if the discussion involves an event that occurred during their employment. See Stunning: WA SC Rejects Privilege Between Corporate Counsel and Former Employees for a more detailed discussion. Check your jurisdiction’s law before emailing with former employees.
Be Wary of Privilege Dilution
The tips mentioned above will only work for truly privileged communications, conference calls, and videoconferences. Do not put “Privileged & Confidential” in every email—only the ones to which the privilege applies. Over-designating will hurt your chances of privilege protection on the ones that really matter.