It is also more difficult to determine the lawyer in corporate communications. In some jurisdictions and situations, privilege may include paralegals and legal service assistants. In some companies, certain departments or groups, such as regulatory, internal or escalated investigations, act in a quasi-legal role or at the request of the legal department. In other cases, lawyers cannot be grouped into a single legal department, but may be dispersed across different departments of the company. In addition, there may also be situations where in-house counsel hires a third party to work on certain matters, such as hiring a forensic expert to conduct an internal investigation. To determine when privileges apply, it is important to understand the nature of the client`s business and its organizational structure. The waters become murkier if the potential customer is a business unit. In the corporate context, solicitor-client privilege exists between external lawyers and the company. However, the exercise of this right by a corporation is necessarily more complex than when a person is involved, since a corporation is an artificial “person” created by law and can only act through a representative, including officers, directors and employees. Although there is no single authority on solicitor-client privilege, it has been defined as follows: “(1) Where legal advice of any kind (2) is sought by a professional lawyer in his capacity as such, (3) the related communications, (4) the communications (5) of the client, (6) are protected at all times at his own initiative, (7) against disclosure by [client] or legal counsel; (8) unless protection is waived. 8 It is important to note that privilege may also be invoked in situations where counsel is not present in the communication, for example, when a request from in-house counsel is issued by non-lawyers or employees. See Se.

Pennsylvania Transp. Auth. v. Caremarkpcs Health, L.P., 254 F.R.D. 253, 258 (A.D. Pa. 2008) (“If the client is a corporation, privileged communications may be shared by partners other than lawyers to transmit information requested by the lawyers”) (citing SmithKline Beecham Corp. v. Apotex Corp., 232 F.R.D. 467, 477 (E.D.

Pa. 2005)). Trust. A company`s right to exercise solicitor-client privilege is not absolute. An exception to privilege has been created if the shareholders of the corporation wish to breach the solicitor-client privilege of the corporation. The applicability of solicitor-client privilege in the corporate environment is often the most difficult to determine in the context of email, a form of communication that is now ubiquitous and often accounts for the majority of documents produced at the time of discovery. Corporate emails often involve multiple people with long chains of communications and multiple attachments. It is only when a lawyer attends a meeting or communication that the privilege does not automatically extend. Clark Boardman Callaghan, American Law of Products Liability §53:34 (3d.

2020). “You can`t properly invoke solicitor-client privilege by simply copying a lawyer in an email.” Meade v. Gen. Motors, LLC, 250 F. Supp.3d 1387, 1393 (ND Ga. 2017); see also Se. Pennsylvania Transp. Auth., 254 F.R.D., at p. 258 (“What is otherwise routine and non-privileged communication between officers or employees who direct the general affairs of the corporation does not obtain privileged status simply because internal or external counsel are “copied” from correspondence or memos”) (quoted SmithKline, 232 F.R.D. at 478).

Communication with outside counsel is often easy to separate and identify. When Company A engages Law Firm B to litigate a dispute, it is clear that communications between Company A and Law Firm B are likely to be protected by solicitor-client privilege (and often also by the work product doctrine). However, the application of solicitor-client privilege is more nuanced for in-house counsel. In-house counsel are often asked to provide comments beyond legal advice. They often hold leadership positions in companies and engage in day-to-day business decision-making outside of their role as lawyers. It is important to note that just because someone has a J.D. or an Esq. behind their name does not mean that any communication with that person is privileged. The privilege may only apply if that person is acting in the exercise of his or her legal functions.

When faced with the prospect of producing documents in litigation, it is paramount to determine which documents are subject to solicitor-client privilege and to prevent those documents from being accidentally disclosed. Such disclosure can have serious consequences for the interests of both counsel and the client, including a finding that the privilege has been waived. See, for example, Tucker v. CompuDyne Corp., 18 N.E.3d 836, 842 (Ohio Ct. 2014) (“Accidental disclosure of a privileged document itself indicates that no reasonable precautions were taken to protect privilege.”); Maxtena, Inc. v. Marks, 289 F.R.D. 427, 446 (D. Md. 2012) (concluded that failure to take reasonable steps to protect against disclosure resulted in a waiver of any privilege or protection that would have been associated with the record).

[1] At the same time, if a lawyer is too restrictive or indiscriminately refuses documents, he or she risks losing credibility with opposing counsel and the court, which may make it more difficult to assert privilege when necessary. Because of the risks associated with accidentally disclosing documents OR withholding documents that are not effectively protected, lawyers should carefully consider how the jurisdiction applies the privilege and establish a clear plan for which documents to submit, documents to withhold, and documents to redact on the basis of privileges. What happens if the communication is passed on to third parties after a privileged exchange between lawyer and client? Has the privilege been waived? Maybe. Unlike a client`s constitutional rights, which can only be waived intentionally and knowingly, solicitor-client privilege can be waived by negligent, unintentional or accidental disclosure.27 Solicitor-client privilege is the oldest privilege recognized by Anglo-American jurisprudence. In fact, the principles of the privilege of testimony date back to the Roman Republic, and its use was already firmly entrenched in English law during the reign of Elizabeth I in the 16th century. Privilege, which is based on the concept of honour, precluded any statement by counsel against the client.1 Because privilege, not attorney, has privilege, the client has the ultimate power to invoke or waive it.24 If the client is a corporation, privilege is generally considered a matter of control of the business. at 395-96 (stating that solicitor-client privilege only protects the disclosure of client-to-client communications, but not the disclosure of the underlying facts by those who contacted the lawyer). ↩ There are certain exceptions to public policy in the application of professional secrecy. Some of the most common exceptions to this privilege are: an express contract is not required to establish a solicitor-client relationship; The relationship may be implicit from the behaviour of the parties.

However, the relationship cannot exist unilaterally in the mind of the potential client, unless there is a “reasonable presumption” that the relationship exists between lawyer and client. The implied relationship can be evidenced by several factors, including, but not limited to, the circumstances of the conversation, the payment of fees to an attorney, the degree of sophistication of the potential client, the request for and receipt of legal advice, and the history of legal representation between the alleged client and the practitioner.