Court Explains Higher Privilege Burden Facing In-House Lawyers

November 3, 2010

Most (if not all) courts recognize that in-house lawyers face a higher burden than outside lawyers in establishing the attorney-client privilege’s applicability. The use of e-mail adds another dimension to this issue.

In Valente v. Lincoln National Corp., No. 3:09cv693 (MRK), 2010 U.S. Dist. LEXIS 90983, at *6 (D. Conn. Sept. 2, 2010), the court recognized that “the line between business advice and legal advice is blurry when an attorney work[s] in-house for a corporate client.” The court explained that the privilege therefore protects only communications that “either explicitly or implicitly seek specific legal advice about” actual information employees send the in-house lawyer. Id. at *7. The court specifically rejected privilege claims for several e-mails in which employees forwarded “developing factual information” to in-house lawyers – concluding that the employees had simply “made a habit of copying in-house counsel” (along with many other individuals) on any e-mail that included factual information that might become relevant to a possible claim.” Id. at *9.

Given this higher burden, in-house lawyers should train their clients’ employees to explain in such e-mails why they are forwarding factual information to the lawyer. If the employees need legal advice about the facts, they should explicitly ask for it.