Privilege is something that, by definition, can be easily taken advantage of. But when it comes to lawyer-client privilege between in-house counsel and clients, the company, it’s not as easily preserved. “The burden is on the organization to prove that communications and documents shared with in-house counsel are protected,” say Thomas Zeno and Emily Root of Squire Sanders. They have some tips on how to best keep the company’s legal documents private:
Explicitly Ask for Legal Advice
Tell the business side to be overly clear in communications seeking counsel’s assistance. Zeno and Root suggest employing formal language and use the example of, “Joe, I’d like your legal advice on …” Even though this may sound “stilted,” the authors note that it’s the best way to demonstrate to a court that the communication was intended for the sole purpose of legal advice, and not business or editorial advice.
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