Are communications between a company’s lawyers and its employees protected as confidential by the attorney-client privilege?
In most cases, yes. The attorney-client privilege protects confidential communications between clients and their lawyers for the purpose of seeking or providing legal advice. When a lawyer represents a company, the company itself is the lawyer’s “client.” Because a company can only act through its individual officers, directors, or employees, a lawyer’s communications with those individuals will be covered by the attorney client privilege if made in confidence and for the purpose of giving or receiving legal advice.
Sometimes, communications among corporate employees can be protected by the attorney-client privilege even if a lawyer is not involved in the communication. If the communications among corporate employees are made to gather information to provide to counsel, or to disseminate legal advice received from counsel then those communications will likely be protected by the attorney-client privilege.
Critically, the purpose of the communication must involve giving or receiving legal advice, not merely business advice. Communications with a company’s outside counsel will almost always meet that requirement. The dual nature of an in-house lawyer – who serves as both a legal advisor and a business advisor – complicates matters. An in-house lawyer’s communications that do not involve legal advice will not be protected by the privilege. For example, an email from the company’s CEO to an in-house lawyer asking whether offering a new product would be profitable would not be privileged. But an email asking whether offering the product would expose the company to legal liability would be privileged.
Because the privilege runs between the company and the company’s lawyers, the company “owns” the privilege and may decide whether – and when – to waive the privilege. An employee who communicates with a company’s lawyers cannot invoke the privilege and has no right to challenge the company’s decision to waive privilege.
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