As an in-house counsel, you can implement precautionary measures to ensure that privileged client communications and documents remain protected from disclosure. To assist you in this regard, Ally Law, a premier global network of over 60 law firms, has summarized attorneyclient privilege in select global jurisdictions to alert you to certain of basic and unique aspects of this law in your area. For the complete list, visit www.ally-law.com.
Best practices to keep in mind as you review the compendium include the following:
- Keep communications relating to legal advice separate from business orientated communications
- Communicate legal and business advice in separate e-mails or separate documents
- Label confidential and privileged legal communications with company employees as “privileged and confidential” or “attorney/client communication”
- Limit the dissemination of confidential communications and confidential documents
- Carefully choose who will attend company meetings
- Avoid handling matters that are normally the responsibility of the business executive
- Warn the client that business advice is not protected by the privilege and that routinely copying in-house counsel on internal non-legal communications will not protect the business communication as privileged
- Hire outside legal counsel to conduct internal investigations for the purpose of providing legal advice.
This compendium is focused on the attorney-client privilege in the context of in-house counsel’s internal communications and with third-parties. It is not intended to be legal advice but to convey general information about the privilege commonly encountered by in-house counsel. Consult your Ally Law member firm for more information.
The basic law of attorney-client privilege is as follows, although specifics may vary by jurisdiction:
The attorney-client privilege protects confidential communications between a client and an attorney (both in-house and outside legal counsel). The privilege applies both to communications by the client to the attorney and to communications by the attorney to the client, if made in confidence and for the purpose of seeking or rendering legal advice. All communications between the client and legal counsel, so long as they are made confidentially and for the purpose of obtaining legal advice, enjoy a “seal of secrecy” and are shielded from the view of third parties no matter how probative, damaging or embarrassing the privileged communication may be. The party asserting the protection of the attorney-client privilege bears the burden of proving that the privilege applies. This requires proof not only of the existence of the attorney-client relationship but also that the communication was made in confidence, for the purpose of obtaining or providing legal advice, and that the privilege has not been waived. The privilege extends only to the confidential communication itself, not to the underlying facts.
Attorney-Client Privilege Summaries
For the summaries in select jurisdictions to follow, we address basic questions and unique aspects of the attorney-client privilege specific to any particular jurisdiction.
AUSTRALIA: VICTORIA AND AUSTRALIAN CAPITAL TERRITORY: Russell Kennedy
AUSTRALIA: WESTERN STATES: Civic Legal
CHINA: R&P China Lawyers
CHINA: HONG KONG: Boase Cohen & Collins
CANADA: ALBERTA: Bryan & Company
15 CANADA: QUEBEC: Spiegel Sohmer
CALIFORNIA: Musick Peeler
COLORADO: Moye White
ILLINOIS: Much Shelist
KANSAS: Evans & Dixon
MASSACHUSETTS: Rich May, P.C.
MISSOURI: Evans & Dixon
NEW YORK: Phillips Nizer
NORTH DAKOTA: Moye White
OHIO: Vorys, Sater, Seymour and Pease LLP
PENNSYLVANIA: Obermayer, Rebmann, Maxwell & Hippel LLP
TEXAS: Vorys, Sater, Seymour and Pease LLP
Europe, Middle East, Africa
GREECE: Your Legal Partners
SWITZERLAND: Blum & Grob
UK: ENGLAND AND WALES: Edwin Coe