Take care with attorney-client privilege

Attorney-client privilege recognizes that, in order to provide sound legal advice, an attorney must be fully informed.

The privilege doctrine enables clients to be open and transparent with their legal counsel. In some cases, attorney-client privilege can be used to protect certain information from public exposure. The privilege protects communications made in seeking legal advice. The attorney may not disclose information from that discussion without the client’s consent, and cannot be compelled by a court to do so.

However, companies should understand the limits of such protection.

Communicating with care?

Recently, Google has been accused of abusing the privilege doctrine to hide sensitive, potentially damaging emails. The Department of Justice (DOJ) filed an antitrust case against Alphabet, Inc., Google’s parent company, and subsequently asked a federal judge to sanction Google for abusing attorney-client privilege to shield emails.

The DOJ alleges that Google’s “Communicate with Care” program is intentionally used as a shield by instructing employees to add in-house counsel and a generalized request for advice to potentially sensitive communications. Often, the company’s attorneys don’t respond to such emails, allegedly because they know advice isn’t really sought or required. The DOJ argues that these messages aren’t an authentic request for legal advice “but rather an effort to hide potential evidence.”

After reviewing sample messages, the court denied the DOJ motion but directed Google to re-review the emails in question. Privilege only applies when a communication’s “primary purpose” is to seek legal assistance. Habitually cc’ing counsel will not provide protection.

Legal vs. business advice

Courts will make a distinction between legal advice and business advice. For example, assume your company hires legal counsel to conduct a pay equity analysis to look for potential liability. Generally, those communications would be protected. However, if you hire a third-party vendor to conduct the same analysis for the purpose of advising management and meeting corporate goals, those communications and the resulting work product could be discoverable.

Another protective rule that is often relevant is the work product doctrine. That doctrine attaches to documents, reports, and other items an attorney prepares in anticipation of litigation.

Here are some practical takeaways for companies:

• Do not combine requests for legal advice with other communication.
• Indicate when a communication is confidential or privileged, but send those messages only to those with whom communications are, in fact, privileged.
• If an investigation is likely to produce highly confidential or prejudicial information, it’s often best to begin with outside counsel. Documents prepared by non-attorneys will generally be protected when they’re prepared at counsel’s direction.
• Disclosing privileged information to a third party could effectively waive that privilege.

Overall, it’s important to recognize that privilege can be up to a court’s interpretation and there are no guarantees that information will not become public.