Here’s the obvious: to invoke the attorney-client privilege, the communication must be made to, or in the presence of, the client’s attorney. But things become murky when you have to decide whether that attorney is actually acting as an attorney when the communication is made—an issue that comes up frequently when dealing with in-house counsel.
The attorney-client privilege doesn’t attach to a communication just because there’s an attorney involved in it. If one is an attorney, but not the client’s attorney, no privilege attaches to the communication. Similarly, if the attorney is acting in some capacity other than one of giving legal advice, no privilege attaches to the communications exchanged in pursuit of such a nonlegal endeavor.
Questions about whether an attorney is acting as an attorney or in some other capacity arise most frequently for attorneys employed by corporations.
For example, the law is clear that the attorney-client privilege applies to confidential communications to or by in-house counsel. State Farm Fire & Cas. Co. v Superior Court (1997) 54 CA4th 625, 642. But this is a troublesome area because in-house attorneys frequently act in a multitude of capacities on behalf of their corporate employers.
Both federal and state courts have held that when the attorney is acting as a business adviser rather than a legal counselor, the attorney-client privilege is inapplicable. Liew v Breen (9th Cir 1981) 640 F2d 1046, 1050 (applying California law). In Montebello Rose Co. v ALRB (1981) 119 CA3d 1, 32, the court held that communications with an attorney who was acting as labor negotiator weren’t privileged because the main purpose of the communications was not to secure or render legal advice.
When the courts are presented with these types of issues, they try to separate the functions, even though they may be inextricably intertwined and it can be almost impossible to do.
The best approach is to avoid this tangled mess by addressing the issue at the outset: When you’re acting as or dealing with in-house counsel, make sure to establish that any communication that you or your colleague want to be privileged is made to or by an attorney acting in his or her capacity as legal counsel, not as business adviser or policymaker.
For help in evaluating privileges and other protections, turn to CEB’s California Civil Discovery Practice, chapter 3.
Other CEBblog™ posts you may find useful:
- Attorney-Client E-Communications
- 7 Simple Rules To Preserve Attorney-Client Privilege
- What to Do If Your Client Dies
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