Double Trouble for In-House Counsel

In-house lawyers often wish to shoulder more corporate responsibility, including doubling their legal-counsel role with business-related jobs and titles. And with time an increasingly precious resource, many wish for efficiency and double-up their communications with business advice and legal advice. But as that great philosopher Ben Franklin once mused, “If a man could have half of his wishes, he would double his troubles.”

Courts often take a critical view of in-house lawyers’ privilege claims. While courts frequently presume that communications between a corporate entity’s outside counsel and the entity’s employees were made so the outside lawyer can provide legal advice to her client, the same presumption often does not hold for in-house lawyers. More than one court, in fact, has held that where an in-house lawyer’s communication with an internal employee contains half business and half legal topics, the presumption should be that the communication was for a business purpose. And with that presumption, the chances of a favorable privilege ruling substantially decrease.

In my Privilege Place column published in Today’s General Counsel, I discuss the increased risk of privilege loss when in-house counsel double-up on their internal corporate roles.  You may read the article as part of the entire issue at this link, or via PDF here.