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Home | Finance | Real Estate | What a Business, Lit ...

What a Business, Litigation or Contract Attorney in Irvine Should Know about the Attorney-Client Privilege in the Corporate Context

Submitted by Michel and viewed 12230 times
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A trade association's lawyer does not automatically represent each member. But if a member contacts the trade association's lawyer to seek legal advice and the communications are kept confidential or disclosed to only those persons who share a common legal interest, then the attorney-client privilege or the joint defense privilege should protect the communications.
Issue 1:

Whether the communications between members of a trade association and the trade association's lawyer are protected by the attorney-client privilege or the joint defense privilege?

Answer:

A trade association's lawyer does not automatically represent each member. But if a member contacts the trade association's lawyer to seek legal advice and the communications are kept confidential or disclosed to only those persons who share a common legal interest, then the attorney-client privilege or the joint defense privilege should protect the communications.


Issue 2:

What are some of the precautions a corporation should take to preserve the attorney-client privilege in the corporate environment?

Answer:

Whether the corporate attorney-client privilege protects employee communications to in-house counsel in any given situation is uncertain. Consequently, when it is possible, in-house counsel should try to meet the more stringent control group test. See Philadelphia v. Westinghouse Elec. Corp., 210 F. Supp. 483, 485 (E.D. Pa. 1962). To satisfy this test:

1. The in-house representative should be top-level management or someone whose responsibilities clearly include making substantial decisions within the corporation.

2. In-house counsel should not communicate with someone who is unable to act on in-house counsel's advice without consulting other employees.

3. In-house counsel should give legal advice to employees who have a "need to know." Copying and distribution of confidential documents should be restricted.

In all situations, however, the following precautions should be taken:

a. In-house counsel should clearly express that the communication is legal advice, not business advice.

b. The request for and the providing of legal advice should be treated with a certain formality. From the documents themselves, the attorney-client relationship should be clear, the client's confidential information should be evident, the facts relied on by the attorney should be identified or alluded to and the opinion should not be limited to a final conclusion.

c. In-house counsel should consider the pros and cons of written versus oral commuincation before choosing one form over the other. Oral communication can often be more efficient than written communication, but when the communication is in writing, in-house counsel should physically note that the communication is legal advice and is strictly confidential. In-house counsel should not, however, be overly broad in labeling communications as legal advice, or the system will lose its persuasive value.

d. If business advice is sought along with legal advice, in-house counsel should separately address each issue. Although in theory the privilege will be maintained if the legal aspect of the advice is the "predominant" part of the communication, it is best to eliminate any uncertainty and not leave it to chance in court.

e. Having an attorney present at meetings does not necessarily make the communications in that meeting subject to the privilege.

f. Corporations should avoid using in-house counsel as a conduit for information, because a court may perceive this as an attempt to create a zone of silence and cast a suspicious eye on attempts to invoke the privilege.

g. Employees should be reminded that the privilege belongs to the corporation and may be waived by, and only by, the corporation, even if doing so might expose the employees to liability.
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rticle brought to you by Michel Olga who writes for kushnerlawfirm.com visit our site for real estate attorney Irvine and real estate lawyer Irvine.
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