SPRING 2019 TODAY’S GENER AL COUNSEL
PRIVILEGE PLACE
Employees, Agents and the Attorney/Client Privilege By Todd Presnell
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or better or worse, a corporate entity’s in-house lawyers must communicate with its employees and third-party agents to provide their client optimal legal advice, but the privilege in the corporate setting lacks uniform application. For instance, some state courts apply the control group doctrine to restrict the privilege’s scope to communications between in-house counsel and employees who have authority to make corporate decisions based on the lawyer’s legal advice. This quite narrow doctrine contrasts with other state courts — and federal common law — that apply the subject-matter test, which broadens the privilege’s application to any employee’s communication so long as it pertains to matters within the scope of her or his employment. Other nuances of the privilege present in-house lawyers with special challenges as well. Regardless of whether the narrow control group or broader subjectmatter doctrine applies, courts scrutinize employee/in-house lawyer communications to discern whether they pertain to business advice rather than legal advice.
Todd Presnell is a partner in Bradley’s Nashville office. He is a trial lawyer, and creator and author of the legal blog Presnell on Privileges (www. presnellonprivileges. com). He provides internal investigation and privilege consulting services to in-house legal departments. tpresnell@bradley.com
Some courts view regulatory advice as routine business discussions unworthy of privilege protection. The evolution of electronic communications presents confidentiality issues that could destroy any privilege protection an in-house lawyer establishes. And even though the attorney/client privilege is the oldest of all evidentiary privileges, many privilege-related issues have remained unresolved (particularly in state courts), leaving in-house attorneys with uncertainty when they communicate with employees and agents. It is imperative, therefore, for in-house counsel to
remain abreast of developing privilege issues in all jurisdictions. As an example, two 2019 state supreme court decisions provide guidance on first-impression privilege issues in the areas of employee-experts and third-party corporate agents. It is not unusual for companies to identify their employees as testifying experts. For example, a product manufacturer might designate an internal engineer to testify that the company properly designed an accused product. Adversaries are frequently entitled to discover communications between a
