A recent post on inhouseblog.com references a good article from InsideCounsel on protecting the attorney-client privilege. The article highlights the dual role–business and legal–played by in-house counsel and the challenges they face in parsing those duties while maintaining the attorney-client privilege. Well worth the read. Also note recent PoP post regarding the Idaho federal court’s instructive comments on applying the attorney-client privilege to in-house counsel.
The federal district court in Idaho issued an instructive opinion regarding application of the attorney-client privilege to in-house lawyers. In DeWitt v. Walgreens, No. 4:11-cv-00263-BLW, 2012 WL 3837764, (Idaho. Sept. 4, 2012), Walgreens sought attorney-client privilege protection of documents and communications exchanged between an Executive Pharmacy Director and in-house counsel regarding the drafting of Walgreen’s Immunizer Policy. Walgreens objected to deposition questions regarding the policy, arguing that the in-house lawyer was heavily involved in the drafting of the policy. But the trial judge, Lynn Winmill, noted that just because a person is a lawyer “does not cloak everything she says or hears with the privilege” and that “corporations may not conduct their business affairs in private simply by staffing a transaction with attorneys.” Importantly, the court reiterated what many courts hold–that, unlike outside counsel, communications between in-house counsel and company representatives are not presumptively privileged. Rather, in order to gain protection of the attorney-client privilege, the in-house counsel must make a clear showing that the company representative–the communicator– made the communications for purpose of rendering legal advice.
With these limiting principles, the court permitted the deposition of the company representative and even outlined an array of questions that opposing counsel should ask to delineate which communications were business related and which were for purpose of rendering legal advice. These questions included whether, during meetings, the company representative discussed business and economic factors for formulating the Immunizer Policy, and whether they discussed financial factors related to the policy.
PoP Analysis. Judge Winmill provided an instructive opinion outlining the contours of the corporate attorney-client privilege as applied to in-house counsel. Courts take a skeptical view of the attorney-client privilege when asserted by in-house lawyers, and require a heightened showing that the communications with in-house lawyers are not for business purposes, but rather for the single purpose of the lawyer rendering legal advice. In-house lawyers should take note of this heightened burden, and cloak their communications and documents with the appropriate “confidential and privileged” labels and statements, and otherwise prepare their documents in such a way that it will be easier for trial judges to see and understand that the communications related to legal advice.