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.