Attorney Client Privilege in the Corporate and Business World: What’s Protected?

If you speak to your attorney, you probably already know that everything you say to him or her is private and confidential. But in the context of a business and its attorney, the attorney client privilege can get a bit more confusing.

Humans and Corporate Representatives

The problem is a practical one. Companies are legal human beings, but they aren’t actual human beings. That means that companies have to speak through people. Those people, in speaking to their corporate attorney, can often forget that they, individually, are not represented by the attorney, but rather, it is the company that is represented, and thus protected by confidentiality.

This isn’t always a problem. An agent of the company authorized to speak on behalf of the company who discusses the company and its legal matters to the attorney, is shielded by the privilege.

But that agent, be it a CEO, owner, manager, or officer of a company, can often lose the distinction between individual or corporate.

Imagine a corporate director speaks with the corporate attorney about a big contract the company is negotiating. That is of course confidential. Then imagine that while speaking, that director then starts saying things about his own divorce, or about whether he individually would be allowed to use corporate funds for a personal pet project.

That director is now speaking with the attorney in matters outside of company business. As such there may not be any confidentiality.

Duty to the Company

This can get particularly dicey in situations where disclosing what was said to an attorney, will hurt an individual officer, director or employee, but help the company as a whole. The company can opt to waive the privilege, even over the individual’s objections, who may not want his or her communications with the corporate attorney disclosed.

Lower Level Employees

Lower level employees only have privilege when they are talking with the company attorney about corporate business, but also, when the communication comes at the request of the company itself (usually through a superior or officer). The communication must relate to the employee’s duties.

And no, simply CCing an attorney on an email or correspondence doesn’t magically transform the communication into being privileged; it is the content of the communication that matters.

Former Employees

Former employees can create a legal challenge. Often, the other side of a lawsuit will seek confidential communication between the company and the attorney, through deposition testimony of a former employee.

The company may have a hard time preventing the former attorney from disclosing what the company attorney told him, so long as the communication when made to the attorney, otherwise would have qualified as valid attorney client communication between the attorney and the company.

This can pose a risk to companies, and the best bet is to try to keep the authority for employees to speak with the companies’ attorneys, as limited and as small as possible.

Get effective and helpful corporate counsel. Call the West Palm Beach commercial litigation lawyers at Pike & Lustig today.

Sources:

leg.state.fl.us/Statutes./index.cfm?App_mode=Display_Statute&Search_String=&URL=0000-0099/0090/Sections/0090.502.html

fgcu.edu/generalcounsel/legalmatters/attorney-clientprivilege