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.
