You’re having lunch with someone from the business and talking about a project that’s not going well and could lead to unhappiness on both sides – your company and the customer. Your buddy is spilling her guts about several of the problems they are encountering on the project and her concern that they may not be performing up to the contract terms. Your first thoughts are that she’s being overly harsh on herself and the team as some of the things she is mentioning may not be a big deal and there is time to correct them. Then she tells you not to worry about it too much because she and her team have been marking all of their emails and other documents discussing the problems as “Attorney-Client Privilege” so that the team can write down whatever they want and it will never be seen by the customer. Oh crud, (or words to that effect) you think. This is a real problem.
One of the in-house lawyer’s most valuable tools is the attorney-client privilege and the ability of the client to ask pointed and raw questions for the purpose of obtaining legal advice. If not utilized properly, however, this tool can turn into a ballistic missile aimed right at your company. The applicability and proper use of the attorney-client privilege is a very misunderstood area, especially in the in-house world. There are a number of things both counsel and the client need to know in order to avoid common mistakes and provide the best possible case for claiming the privilege. Since some courts are looking at in-house counsel assertions of privilege with a wary eye, it is now more important than ever to get this right. This edition of Ten Things will discuss what is necessary to claim and preserve the attorney-client privilege.