To CC, or Not to CC, That is the In-House Privilege Question

Does anyone recall the origins of the “cc” option in our emails? Before the advent of copying machines, initially known ubiquitously as Xerox machines, when typing a letter lawyers would insert carbon paper between two sheets of paper. When the typewriter keys struck the top sheet, the carbon paper imprinted the letters and words on the bottom sheet to create a copy. The letter included a “cc,” or “carbon copy,” identifying the persons who received copies.

This cumbersome carbon-copy process necessarily limited the scope and number of persons receiving copies. But when the “cc” concept carried over to email communications, its limited scope did not. Today, any corporate employee can easily copy an in-house lawyer on emails where the primary recipient is a non-lawyer. And this opportunity creates privilege issues for in-house lawyers because courts question whether an employee’s email sent to a lawyer as a secondary recipient was truly seeking legal advice.

In my latest Privilege Place column, published in Today’s General Counsel, I discuss the issues with cc’ing in-house lawyers, the associated legal-advice conundrum, and offer tips for securing the privilege in these situations. You may access the article here.  Hope you find it useful.