February 1, 2013
Employers Must Be Vigilant About Protecting Attorney-Client Privilege
Once a lawsuit has been filed, the general rule in California is that parties have extremely broad rights to gather information from the other side. This process, called discovery, is used to allow both sides the opportunity to prepare for trial and become familiar with the information the other side will use against them. Despite the board scope of discovery, some information need not be disclosed to the opponent, including information protected by the attorney-client privilege. Understanding the privilege – and how to protect it – is important for all employers.
The attorney-client privilege permits a party to refuse to disclose any matter, or to produce any writing, object or thing involving a communication between an attorney and client. The privilege is quite broad and extends to oral and written communications. The question the court will ask is whether the acts were intended (by the attorney and client) to be privileged communications. It is important to note that information does not automatically become privileged just because it is communicated to an attorney. There must be an intention that the communication be privileged and the communication must be in confidence between the attorney and the client.
Among the communications that the privilege protects from disclosure are correspondence, bills, ledgers, statements, and time records, which reveal the client’s motive in seeking representation, litigation strategy, or services performed. Protected confidential information also includes legal opinion formed and advice given by attorneys in the course of the attorney-client relationship. California takes a broad approach, which applies the privilege to all such communications made by the lawyer, regardless of the content of the communications.
Unless it is waived, the attorney-client privilege remains in force. Under California law, the client is the holder of the privilege. That means that actions taken by a client can waive the privilege. The waiver can include the deliberate or unintentional disclosure of the privileged information to unrelated parties.
Employers are encouraged to seek legal advice regularly, including when making decisions, investigating complaints about harassment or discrimination, setting and reviewing policies, and analyzing employee classifications and independent contractor status. When obtaining legal advice, it is important that the employer maintain the confidentiality of the communications. Many clients take notes during conferences with counsel, and these notes should be protected as well. As with all legal advice, the notes should not be shared with anyone other than those individuals within the company who need to be involved and know the information. Privileged communications should not be shared with third parties without consulting counsel first. Because the client holds the privilege, disclosure to third parties can render the communication no longer privileged.
Employers often take some action upon the advice of their attorney and seek to justify their actions to employees or third parties by stating that they are acting on advice from counsel. Such statements arguably waive the attorney-client privilege, however, and should be avoided. Clients should not disclose the advice they receive from their attorneys without conferring with the attorney in advance.
The key to remember is that the attorney-client privilege is a valuable tool the employer holds in order to effectively obtain advice of counsel. In order to ensure that the privilege benefits the employer, protecting confidential information from disclosure to third parties is essential. Before disclosing any attorney-client communications, it is strongly recommended that counsel be consulted.
If you have any questions regarding the attorney-client privilege and how your company can better ensure that you are protecting privileged communications, we invite you to contact one of our attorneys: