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Thompson Hine LLP, a full-service business law firm with approximately 400 lawyers in 11 offices, was ranked number 1 in the category “Most innovative North American law firms: New working models” by The Financial Times and was 1 of 7 firms shortlisted for The American Lawyer’s inaugural Legal Services Innovation Award. The firm has been recognized by the National Law Journal as a Legal Technology Trailblazer and featured by Bloomberg for its innovative service delivery models, which drive accuracy and predictability. The firm’s commitment to innovation is embodied in Thompson Hine SmartPaTHTM – a smarter way to work – predictable, efficient and aligned with client goals. For more information, please visit ThompsonHine.com and ThompsonHine.com/SmartPaTH.

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<img style="max-width: 100%;height: auto;max-width: 100%;height: auto" loading="lazy" class="alignright size-medium wp-image-2868" src="https://www.thelawforlawyerstoday.com/wp-content/uploads/sites/754/2016/10/Confidentiality-stamp-300x208.jpg" alt="Confidentiality stamp" width="300" height="208">Regulatory compliance, cyber-security issues, herding legal operations staff &mdash; in-house legal practice is more complex than ever.&nbsp; One element that remains a continuing challenge is protecting the organization&rsquo;s attorney-client privilege.&nbsp; Slipping up can risk the loss of the privilege in litigation involving the company, and can potentially result in an order to produce otherwise&nbsp;confidential communications to the other side.&nbsp; What are some signs that your law department needs to tune up its privilege IQ?
Some privilege ABC&rsquo;s
First, for purposes of attorney-client privilege, the client is the organization, and in-house counsel is the attorney, just as much as outside counsel is.&nbsp; So communications between the law department and management, for the purpose of getting or giving legal advice, made in confidence and kept confidential, can qualify for privilege protection.&nbsp; The facts aren&rsquo;t privileged, of course &mdash; only the actual communication.
Signs of trouble
Outside that rubric, however, issues could lead to the loss of privilege and disclosure of&nbsp;your confidential communications.&nbsp; Here are five signs of problems.
<ol>
<li>The department&rsquo;s lawyers overshare.&nbsp; Sharing communications is good, right?&nbsp; Sometimes.&nbsp; But too much sharing is not.&nbsp; E-mailing&nbsp;confidential legal advice with a cc:&nbsp;to a long list of managers and employees who have no need to know it can risk the privilege &mdash; because it&nbsp;can be seen as negating the confidentiality that is a hallmark of a privileged communication.&nbsp; (On the flip side, however, when managers discuss business issues, dropping the name of the company GC into the cc: box does not make the communication privileged.)</li>
<li>You fail to mark your communication as privileged; or you mark everything as privileged.&nbsp; When opposing counsel&nbsp;makes a request for documents, nothing quite says &ldquo;privileged&rdquo; like a document that&nbsp;you have clearly marked &ldquo;CONFIDENTIAL &ndash; ATTORNEY-CLIENT PRIVILEGE.&rdquo;&nbsp; Failing to mark that&nbsp;e-mail or that report to management might not result in an order to disclose it &mdash; but why not express your intention at the time you make the communication?&nbsp; It can only help &mdash; unless you automatically mark everything that comes out of the law department as privileged (like your lunch invites and inter-office jokes).&nbsp; Then, a court reviewing your claim of privilege might be less likely to take you seriously.</li>
<li>You mix business advice with legal advice without distinction.&nbsp; We all know that the client expects in-house counsel to wear many hats, and giving advice on business issues comes with the territory.&nbsp;&nbsp;The problem is that business advice&nbsp;does not&nbsp;qualify for&nbsp;protection by the attorney-client privilege.&nbsp; If you mix business advice and legal advice in one memo without any distinction, you might be inviting a privilege problem.&nbsp;&nbsp;Some courts might parse the communication and shield the legal advice; but in other jurisdictions, the court will determine what the &ldquo;predominant purpose&rdquo; of the whole communication is, and you might come out on the losing side of that equation.&nbsp;&nbsp;It&rsquo;s better to keep legal advice and business advice separate, if you can.</li>
<li>You&nbsp;haven&rsquo;t&nbsp;educated managers and employees about the ground rules of privilege.&nbsp; You don&rsquo;t have to make it a law school course, but it really helps if your client understands the basics:&nbsp; that they can&rsquo;t share with&nbsp; others the privileged communications they have with you; that they should keep documents marked as privileged in a safe place; that making the legal department a cc: on an e-mail is not sufficient to make it privileged.&nbsp;&nbsp;Create a check-list for the department heads you work with.&nbsp; They&rsquo;ll appreciate knowing the lay of the land.</li>
<li>You don&rsquo;t acknowledge&nbsp;the nuances of foreign privilege law.&nbsp; The global nature of business and legal practice today means that you&nbsp;likely need to understand privilege law as it plays out internationally.&nbsp;&nbsp;Be aware of the issues.&nbsp; For instance, some courts&nbsp;hold that a legal practitioner&nbsp; functioning in a foreign country qualifies as an &ldquo;attorney&rdquo; for purposes of the privilege; others have ruled that communications with foreign in-house counsel are only privileged if they qualify under the privilege laws of the foreign country.&nbsp; Several countries (and the European Union) do not recognize any evidentiary privilege for communications between a company&rsquo;s in-house lawyers and management or employees.</li>
</ol>
Addressing these potential problems should help maintain attorney-client privilege.

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Ethics

Legal Ethics, Professional Responsibility and the Business of Law

Five signs that your law department could be headed for a privilege problem