FALL 202 0 TODAY’S GENER AL COUNSEL
PRIVILEGE PLACE
Need-to-Know Rules for In-House Counsel By Todd Presnell
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t is a phrase found in 19th century writings and 20th century movies, but most often on elementary school playgrounds. When one kid asks another to reveal coveted information, he responds, “That’s for me to know and you to find out!” Perhaps it is time to bring that phrase into the 21st century world of the corporate attorney–client privilege — a world beset with information dissemination and concomitant privilege-waiver concerns. An in-house lawyer achieves attorney– client privilege protection when she proves an attorney–client relationship with the entity that employs the person with whom she communicates, the communication is confidential and intended to remain confidential, and the communication is made for legal advice purposes. This analysis is straightforward enough, but many courts, including the Second and Ninth Circuits, follow Dean Wigmore’s “famous formulation” by categorizing the privilege elements in finer detail and adding a waiver component. These courts define the privilege as (1) where legal advice is sought (2) from a
Todd Presnell is a trial lawyer in Bradley’s Nashville office. He is the creator and author of the legal blog Presnell on Privileges, presnellonprivileges. com, and provides internal investigation and privilege consulting services to in-house legal departments. tpresnell@bradley.com
lawyer in her legal capacity, (3) the communication relating to the legal advice at issue and (4) made in confidence (5) by the client are (6) at the client’s instance permanently protected (7) from disclosure by the client or the lawyer, (8) unless the client waives the privilege. This eighth category, “unless the client waives the privilege,” has its own classifications. A company waives the privilege through an inadvertent disclosure of privileged communications where the company failed to implement reasonable measures to prevent the disclosure and did not act with the requisite aggressiveness to retrieve the communications. Courts also find an implied waiver where an organization places the legal advice it received at issue in litigation. The theory here is that a company may not use its legal advice as a sword yet shield the basis for that legal advice from disclosure.
A corporate entity also waives protections over privileged communications when it intentionally and voluntarily discloses those communications to third parties. As an example, a Pennsylvania court held that a hospital general counsel waived the privilege when he intentionally and voluntarily forwarded a privileged email from his outside counsel to the hospital’s outside public-relations firm. This intentional waiver concept has a simple basis. Disclosure to individuals outside the corporate organization is inconsistent with the privilege’s protection of confidential communications. The intentional waiver concept becomes complex, and perhaps counterintuitive, when considered in the context of intracorporate distribution of otherwise privileged communications. Corporate employees can easily forward a privileged communication to others within