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Old 02-13-2019, 10:46 AM
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Attorney Client Privilege at Work


Occasionally at work we will deal with issues that are somewhat sensitive. In order to prevent discussion or evidence of such matters from being subject to discovery or available upon deposition or in court, there are times where we will involve our legal department to have an attorney present during such meetings, or as part of certain electronic communications.

My question is, does attorney client privilege work this way? Can a company insulate its own employees like this? No consideration is exchanged between the attorney and the other employee, but they assert that because the lawyer is present then the conversation becomes privileged.
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Old 02-13-2019, 10:57 AM
Jonathan Chance is offline
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Mmm. I don't think the compensation thing is required because the attorney is, technically, representing the company as you would also be. So that would be covered. Privilege might not extend to everything discussed, though. If you confessed to something personal you might not be covered but anything related to the company and its activities could be.
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Old 02-13-2019, 10:58 AM
Dewey Finn is offline
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I don't know the answer but I remember a news report, perhaps on 60 Minutes, that this was a tactic of the tobacco companies a couple of decades ago.
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Old 02-13-2019, 11:37 AM
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As far as 'consideration' (payment) goes, the attorney is working for the company, so the employee doesn't need to be paying them (assuming they're discussing company business).

On the tactic in general, legally speaking privilege doesn't theoretically work that way: privilege only covers conversations between a company attorney (in-house or external) and another employee(s) about company legal issues. Merely adding a cc: to the attorney is not legally enough to protect the e-mail, if there are no real legal issues raised and the attorney is not really part of the conversation.

Practically, this tactic might let the company get away with not disclosing some things and will certainly let the company slow down discovery and argue more. My guess is that there's a chance if they take it too far it could piss off a judge at some point.
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Old 02-13-2019, 12:08 PM
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Originally Posted by Bone View Post
My question is, does attorney client privilege work this way? Can a company insulate its own employees like this? No consideration is exchanged between the attorney and the other employee, but they assert that because the lawyer is present then the conversation becomes privileged.
I don't know what you mean by "insulate its own employees". Any privilege belongs to the company. Even assuming that the conversations were privileged, it would be up to the company (not the employee) to invoke it or not.

But generally speaking, the mere presence (even participation) of an attorney wouldn't create a privilege unless there was information being provided to (or from) the attorney for the purpose of providing legal advice. This has become a fairly common issue in situations where in-house counsel serve both a legal and a business function -- only the legal function is privileged. It's also fairly common for a party to assert privilege over a document or communication simply because a lawyer was present (or a recipient), that's technically wrong. But it does require the other party to push back.

Last edited by Falchion; 02-13-2019 at 12:08 PM.
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Old 02-13-2019, 12:31 PM
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IANAL, but I do work with them on a regular basis. It is my impression that having an attorney present provides NO protection at all for communications between employees. If I tell my boss in person (or by e-mail) that we accidentally gassed 1000 people in Tierra del Fuego in the presence of an attorney (that sounds awkward, doesn't it?), both he and I would have to resort to pleading the Fifth.

Now, if the attorney represents both of us and I tell the attorney, who then tells my boss in a separate meeting or communication, it might be a different matter.

Perhaps an attorney could clarify this?

Last edited by ZonexandScout; 02-13-2019 at 12:32 PM.
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Old 02-13-2019, 02:41 PM
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IANAL, but I do work with them on a regular basis. It is my impression that having an attorney present provides NO protection at all for communications between employees. If I tell my boss in person (or by e-mail) that we accidentally gassed 1000 people in Tierra del Fuego in the presence of an attorney (that sounds awkward, doesn't it?), both he and I would have to resort to pleading the Fifth.

Now, if the attorney represents both of us and I tell the attorney, who then tells my boss in a separate meeting or communication, it might be a different matter.

Perhaps an attorney could clarify this?
How is this different from, say, an attorney representing a partnership in a lawsuit. In a meeting with their attorney, if one turns to the other and says "Oh, crap, in that case we're screwed!" is this not part of the whole privileged conversation?

I'm assuming the privilege relates to whether it was in fact a legal matter. If you need the attorney's professional input, then it's legal-related? A discussion about a legal liability ("we gassed them all") is protected, but a discussion about allocating parking spots would not be.

Last edited by md2000; 02-13-2019 at 02:43 PM.
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Old 02-13-2019, 03:39 PM
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Here you go... probably more than you ever wanted to read about it:

http://americanbar.org/content/dam/a...ac2011/096.pdf
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Old 02-13-2019, 06:21 PM
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Here you go... probably more than you ever wanted to read about it:

http://americanbar.org/content/dam/a...ac2011/096.pdf
Thanks!
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Old 02-13-2019, 07:13 PM
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Big arguments going on in my home town now about (criminal) legal privilege, but they are all going on in secret with the government and the police and royal commission.... I'm sure that the distinction between "ethical duty" and "legal duty" is something that the lawyers all have an opinion on, but at present they are not free to share their opinions about the facts at issue.
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