The ACC Docket January/February 2008 issue reported that the US House of Representatives approved HR 3013, The Attorney-Client Privilege Protection Act, on
ACC argues the merits of privilege protection with tips on the ACC web site on privilege protection. One tip is to not place the “attorney-client privileged” notice on every email or document just because it is written by an attorney. Marking documents shows intent that the communication be confidential, but when arguing truly privileged documents, it may be difficult when the legend is everywhere.
Another tip is to memorialize that someone requested legal advice when responding by stating something like: “In response to your request for legal counsel…” When responding, an attorney should not respond to too broad an audience, and warn others about forwarding messages with headers forbidding distribution. Broad email distribution or discussion of legal advice in the presence of a party not necessary for the legal consultation (such as in an elevator where conversations may be overheard) indicates waiver of privilege.
The attorney-client privilege excepts from production in litigation, communications between an employee during the scope of employment with an attorney for legal advice. The privilege allows the attorney to learn in confidence all the facts about a legal issue so that the attorney may provide legal advice without worrying that the information will be used in litigation. When the communication does not involve a legal matter, such as a solicitation for general business advice, the privilege does not apply.
In the corporate environment, there should be segregation of attorney work product from the documents that contain facts such that when asked to produce documents, the production of factual reports does not result in a waiving of privileged materials. Work product privilege protects factual investigations, legal research, mental impressions, attorney evaluations made in anticipation of or preparation for litigation.
Remind employees that the corporate counsel is not an attorney for any individual employee.
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