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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-3825" src="https://www.thelawforlawyerstoday.com/wp-content/uploads/sites/754/2018/03/Privilege-2-300x252.jpg" alt="" width="300" height="252">If you&rsquo;re corporate counsel to an organization, you know how hard it can be to navigate privilege issues.&nbsp; In a single day, you can be involved in talking to&nbsp;business managers, communicating with your CEO and dealing with&nbsp;the board.&nbsp;&nbsp;When are your communications privileged, and how can you protect them?&nbsp;&nbsp;A recent Colorado&nbsp;<a href="http://filehost.thompsonhine.com/uploads/Marriott-Opinion_b5f7.pdf">district court opinion</a>&nbsp;has some pointers, based on a finding that a memo partly authored by in-house counsel was not privileged.
Legal advice, or just business?
In class action litigation, the plaintiffs asked the court to compel defendant Marriott to turn over an unredacted version of a nine-page financial and business growth strategy memo that corporate officers addressed to the organization&rsquo;s Corporate Growth Committee.&nbsp; Various lawyers in the law department had significant responsibility for preparing the memo, and the court found that some sections of the final memo had been written by in-house lawyers.
But the fact that a lawyer&nbsp;prepares a document is not sufficient to make the&nbsp;communication privileged.&nbsp; Rather, the privilege&rsquo;s proponent&nbsp;must &ldquo;clearly demonstrate that the communication ... was made for the express purpose of securing legal, not business advice.&rdquo;
Further, the court said, the &ldquo;primary purpose&rdquo; of the communication must be&nbsp;getting or giving legal assistance,&nbsp;rather than&nbsp;business advice.
Mixed messages
So what to do with a document that contains a mixture of business advice and legal advice, which the court found were &ldquo;intertwined&rdquo; in the memo?&nbsp; Citing the lack of Colorado precedent, and applying a case from the District of Columbia, the court held that the legal advice must &ldquo;predominate for the communication to be protected.&rdquo;&nbsp; It did not predominate here, said the court.&nbsp; Instead, while the strategy memo involved some legal advice, most of it was &ldquo;ordinary and customary business strategy advice.&rdquo;
Tips to protect the privilege
This case&nbsp;has some take-home lessons for in-house counsel on how&nbsp;to protect the privilege over legal advice.
<ul>
<li>It&rsquo;s on you:&nbsp; &ldquo;The legal duty to protect the privilege falls on the legal department,&rdquo; said the court, noting that Marriott&rsquo;s team was &ldquo;large and experienced.&rdquo;&nbsp; But even if you&rsquo;re a one-person shop, you are the point-person for privilege issues.</li>
<li>Educate the stakeholders:&nbsp; Those tasked with advising on and writing parts of the Marriott memo&nbsp;had &ldquo;a duty to inform the Corporation of the privilege and to take steps to protect their advice,&rdquo; said the court.&nbsp;&nbsp;Schooling your company&rsquo;s managers on the privilege is key to helping protect it.&nbsp; For instance, do they know that cc-ing you does not necessarily make a document privileged?</li>
<li>Don&rsquo;t intermix business and legal advice:&nbsp; If the legal advice in the strategy memo had been in &ldquo;separate paragraphs or pages,&rdquo; or in a &ldquo;confidential addendum or even a separate memorandum,&rdquo; the court hinted that it might have protected those parts as privileged and only ordered disclosure of part of the memo.&nbsp; Instead, the information was so intertwined that&nbsp;redaction &ldquo;would be impractical.&rdquo;</li>
</ul>
And some related pointers:
<ul>
<li>&nbsp; Label!&nbsp; If you are giving legal advice, start your communication with &ldquo;You&rsquo;ve asked me for my legal opinion on ...&rdquo; or &ldquo;my legal advice regarding.... .&rdquo;&nbsp; Head those documents&nbsp;&ldquo;Attorney Client Privilege.&rdquo;&nbsp; But don&rsquo;t over-use the header.&nbsp; If&nbsp;everything that comes out of your office is&nbsp;marked &ldquo;Privileged,&rdquo; that might be deemed to cancel out the effect.</li>
<li>Don&rsquo;t overshare:&nbsp; Remember, e-mail has a way of getting out of control.&nbsp; Long&nbsp;threads where you are an early addressee may be deemed not privileged after going to people within or outside the company who shouldn&rsquo;t receive the information.</li>
</ul>
Different outcome?
The court in this case adopted the &ldquo;primary purpose&rdquo; standard, but there are others &mdash;&nbsp;for instance, whether legal advice is &ldquo;one of the significant purposes&rdquo; of the communication.&nbsp; We&rsquo;ve discussed that&nbsp;test, which the&nbsp; D.C. Circuit adopted in 2014, <a href="https://www.thelawforlawyerstoday.com/2014/08/court-upholds-attorney-client-privilege-for-in-house-counsel/">here</a> and <a href="https://www.thelawforlawyerstoday.com/2015/01/privilege-covers-lawyer-notes-from-gm-ignition-switch-investigation-district-court-finds/">here</a>.&nbsp; Over at <a href="https://presnellonprivileges.com/2018/12/18/no-room-in-the-inn-marriotts-legal-dept-loses-privilege-over-strategic-plan-memo/">Presnell on Privileges</a>, Todd Presnell wonders whether the result in the Marriott case would have been different under that standard, and it&rsquo;s a good question.&nbsp;&nbsp;Privilege disputes can be very fact-specific, and the test the court applies can certainly dictate the outcome.

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Ethics

Legal Ethics, Professional Responsibility and the Business of Law

In-house counsel and privilege:  opinion offers some take-home lessons