Dos and Don’ts,
and Progress Against Erosion
By Richard T. White
and Susan Hackett
This article provides a brief overview of the attorney-client
privilege and a few practical ideas to protect the corporate
client’s privilege rights. While this short article cannot pro-
vide a comprehensive analysis of the problems or detailed prac-
tices counsel may employ to protect a client’s rights, it touches on
the key points.
An in-house attorney (or outside counsel acting as corporate
counsel) establishes attorney-client privilege and work-product
protections for the corporate client when rendering requested
legal advice to management. Generally, a client is also afforded
protection when the attorney is conducting investigations or
employee interviews (which collect facts) or reviewing or com-
menting on factual matters in an effort to render counsel to the
client in anticipation of litigation. This includes interviewing
employees and others to better understand legal problems or
engaging in research before providing advice.
On a practical level, before the attorney-client privilege can
attach to a lawyer’s communications with clients, the following
requirements must be satisfied:
The corporation that wishes to assert the privilege must be
the lawyer’s client.
The lawyer receiving the client communication must be a prac-
ticing member of the bar or a subordinate of such a person.
The lawyer to whom the communication is made must be act-
ing as a lawyer (and not, for instance, as a business person or
business department’s representative).
The communication must be made without non-client and
non-essential third parties present. (It could be made, for in-
stance, at a crowded restaurant, but not at a table with other
non-clients around to overhear; or it could be conducted as an
e-mail exchange, but not if non-client, ‘‘unnecessary’’ parties
are copied or are later forwarded the e-mail.)
The communication must be made for the purpose of secur-
ing legal s