Tuesday, February 24, 2015

Beware: Attorney-Client Privilege is not Without Bounds (Especially in the Employment Law Arena)

February 2015
By: James B. Sherman, Esq

Many attorneys provide advice to their clients, assuming that their conversations will be protected by the attorney-client privilege and/or work product doctrine.  However, not all communications between attorneys and their clients are protected.  Depending on the substance or timing of the communication, and the reason for making the communication, it may or may not be protected as privileged or attorney work product.  Additionally, these protections may inadvertently be waived regarding a communication that otherwise would have been protected.  These risks are unquestionably greater for lawyers counseling employers about workplace and human resource issues.

Communications that are more akin to general business advice, as opposed to communications made in anticipation of litigation, may not be protected.  Where communications contain a combination of legal and business advice (as is often the case), the presence of some legal discussion will not necessarily render the entire communication privileged.  Some courts have gone so far as to say that even communications addressing how to avoid litigation will not be protected. 

A common area of communication employment lawyers engage in with business clients involves internal investigations of harassment, discrimination, misconduct, etc.  Some courts have held that internal investigations are generally more of a human resources function than a legal function, and employers have a duty to investigate employee complaints, regardless of whether litigation is pending or anticipated.  Furthermore, even if an investigation would otherwise be privileged if the fact that a matter was investigated and addressed is used as a defense to a lawsuit, then any privilege will necessarily be waived in the course of asserting the defense.

There are, however, several things attorneys can do to strengthen their position that communications with their business clients on employment-related matters are privileged:

  • Label written communications as confidential, attorney-client privileged, and/or attorney work product.  This shows that the intention at the time of making the communication was for it to be confidential, and makes it less likely that the communication will be shared with others, thus waiving any privilege.
  • Be explicit about a conversation’s connection to any current or anticipated litigation.
  • Separate legal advice from general business advice.
  • Keep any legal discussions on a need-to-know basis, excluding non-managerial employees since their involvement generally waives privilege.