How Do You Analyze Privilege When an In-House Lawyer Also Has an Executive Business Position?

February 13, 2008

Because in-house lawyers frequently provide non-legal advice, nearly every court views their privilege assertions with some skepticism. Courts’ difficulty in sorting legal from business advice increases when an in-house lawyer also has an official executive position in the company.

In Rumain v. Baruch College of the City University of New York, No. 06 Civ. 8256 (PCK) (MHD), 2007 U.S. Dist. LEXIS 92921 (S.D.N.Y. Dec. 14, 2007), the court analyzed e-mails to and from John Dugan, who acted both as counsel to Baruch’s president and as the college’s Dean of Faculty and Staff Relations. The court recognized that Dugan “plays multiple roles at the College, including in-house counsel and supervisor of labor-management relations.” Id. at *1. The court also noted that despite Dugan’s statement that he has “‘no authority to make employment decisions at the College,'” the record “reflects that he can involve himself in such decisions” and did so in connection with the incident at issue in the litigation. Id. (citation omitted). The court reviewed many e-mails in camera, and held that some e-mails deserved privilege protection and some did not. For instance, the court found undeserving of protection two e-mails that did “not address any legal issues or call upon Mr. Dugan for legal advice,” but instead involved “a purely administrative matter, generically of a budgetary nature.” Id. at *4. In contrast, the privilege covered e-mails which contained “a discussion of a possible settlement of plaintiff’s prior lawsuit.” Id. at *6. In some situations a single e-mail contained both “a reference to legal matters, which is protected by the privilege” and “a reference to a budgetary matter, which is not.” Id.

In-house lawyers should try to articulate the legal nature of any protected communications, and should be especially careful if they play two formal roles with their employer.