In times of crisis like many companies are facing now, there is particular risk that the decisions made today may be subject to dispute tomorrow. Poor communication practices may later impair companies’ assertions of the attorney-client privilege and work product protections in those disputes. With this current crisis demanding rapid advice in remote working environments, in-house counsel may struggle later to piece together proof that today’s communications and documents are privileged. The heightened scrutiny some courts apply to in-house lawyers’ communications can make this task even harder. But maintaining good privilege practices by using these simple strategies will help preserve and, if needed, prove your company’s privilege:
1. Think about how changed work practices may impact your privilege protections. We’re all getting the work done now a little differently than we did in the past. Do you know the confidentiality protocols of the video chatting software you’re now using, and how to use the privacy settings? Is anyone else in the room, or able to overhear, lawyer-client communications taking place during a video conference? Are face-to-face meetings that used to literally be face-to-face now being recorded and placed on another company’s server? Are employees now performing any work from their home computer, or their spouse’s work computer? Forwarding documents to their personal email addresses or the email addresses of others in their family to print? The good privilege protocols of the office setting may be overlooked in these different times. Think about how you and your business clients’ work practices have changed, and what impact those changes could have on the protection of privilege. And advise those clients on how to make sure your advice remains protected despite those changes.
2. Remember what’s protected and what isn’t. The central issue in many privilege fights is over the purpose of the document. The attorney-client privilege generally protects confidential communications between a lawyer and client (or their representatives), but only when made for the primary purpose of securing or providing legal advice. The work product protection applies to materials prepared by or for a party or its representative, but only in anticipation of litigation.
3. Talk, don’t write. This may not be as easy with people no longer just down the hall. Remind employees that, even when working from home, particularly sensitive communications may best be delivered over the phone or in a virtual meeting. This avoids inadvertent distribution or production. And even if the other side doesn’t end up with a company’s bad document, the court deciding the privilege dispute may still see it.
4. Use lawyers to direct legal matters and communications. If your company is gathering information for the purpose of obtaining legal advice, use in-house (or outside) lawyers to substantively direct the work flow. Have employees write directly to the lawyers, and encourage them not to merely cc the lawyers or include lawyers in a long list of recipients. If hiring non-lawyer consultants, make sure the statements of work and engagement agreements make the legal purpose of the work clear, require the work to be confidential, and reflect that the work is being done at the direction of the lawyer.
5. Memorialize legal purpose of meetings and communications. For meetings, use calendar appointments and include a short note about the legal purpose of the meeting. For emails, use the subject line or opening sentence to note the legal purpose for which the information is needed, the legal issue on which advice is given, and the lawyer whose legal advice is sought. For documents, include a header or footer that says who prepared it and when, and like with email, include the legal purpose at the beginning of the document. Try to avoid, if possible, replacing workplace in-person communications with texts, which can be much more difficult to preserve and review.
6. Use the “privileged and confidential” or “work product” words judiciously and appropriately. Don’t rely on a footer that appears at the end of every email. Especially for sensitive information that is put in writing, include the privilege claim, in bold letters, in a prominent spot. Consider adding “do not forward,” if clients may need that reminder.
7. Give legal advice. Make sure to use legal skills and training when advising business clients. Consider referencing, even in passing or at the bottom of the communication, the applicable statute, regulation, contract, or case. Ideally, the legal nature of the communication will be apparent from the face of the document.
8. Segregate legal advice. This strategy can be harder to implement when moving fast, but it may make or break the privilege claim. In an opinion that should scare in-house lawyers everywhere, a court found that the company’s in-house lawyers waived the attorney-client privilege for an important strategic memo by “intertwining” the legal advice with the business advice. See RCHFU, LLC v. Marriott Vacations Worldwide Corp., 2018 WL 3055774, (D. Colo. May 23, 2018). The court noted that the in-house lawyers had the “duty” to “take steps to protect their advice,” which they could have done by “blocking the advice into separate paragraphs or pages, including it in a confidential addendum or even a separate memorandum.” Keep this opinion in mind when contributing legal advice to business documents, and make sure that redaction, if needed, would be an easy task. And for important privileged communications that need to be emailed, start a new thread. Remember, some courts are less willing than others to disentangle the legal from the business advice.
9. Be mindful of the duty to preserve evidence. If a company is creating “work product”—materials created in anticipation of litigation—then it may also have a duty to preserve documents, including electronically stored information. See Fed. R. Civ. P. 37(e) (setting forth remedies when “electronically stored information that should have been preserved in the anticipation or conduct of litigation is lost because a party failed to take reasonable steps to preserve it, and it cannot be restored or replaced through additional discovery”). Consider sending out a document hold memo and working with IT departments to make sure that information is preserved, once the company reasonably anticipates litigation. Make sure that employees working remotely are only using company devices and company email for company documents.
10. Involve outside counsel. Unlike the presumption for in-house lawyers serving dual business and legal roles, courts usually presume that the reason a company contacts an outside lawyer is for legal advice. Involving outside counsel, for example, in an internal investigation, can help prove the legal purpose of the communications.
Remember that at the courthouse, the burden to prove the privilege will be on the in-house lawyer, and may require document-by-document sworn testimony. And while privilege rules may vary from jurisdiction to jurisdiction, one consistent thread in opinions requiring production is that the in-house lawyer’s declaration was too generic. Simply submitting a conclusory or blanket declaration—all of these documents were for the purpose of providing legal advice—will not suffice. Taking these steps now will help you in your duties to protect and preserve your company’s privileges.