HR professionals routinely use legal counsel to obtain advice on compliance issues, risk mitigation, and many other legal issues. Whether it arises in the context of a one-off accommodation question or a months-long harassment investigation, the attorney-client privilege is a vital tool for protecting confidential communications between legal counsel and HR professionals. The attorney-client privilege allows HR professionals to disclose and discuss sensitive information and troubling facts with the company’s counsel without concern that the communication may one day be seen and scrutinized by a judge, jury, or the public. But don’t assume that any conversation with a lawyer in the room, or copied on an email, will be privileged and protected from disclosure. To effectively leverage the benefits of the attorney-client privilege, HR professionals need to understand what it is and how to use it.
Defining Attorney-Client Privilege
The attorney-client privilege is a doctrine that protects certain written and verbal communications between an attorney and a client from being revealed to third-parties. As the U.S. Supreme Court famously said, the attorney-client privilege exists to “encourage full and frank communication . . . and thereby promote broader public interests in the observance of law and administration of justice.” In simpler terms, the attorney-client privilege allows clients to share the bad stuff without holding back, get legal advice, and not worry about whether their communications will be revealed to others.
For a communication to be privileged:
- There must be an attorney-client relationship;
- The communication must be made to obtain or provide legal advice;
- It must be made in confidence; and
- It must have been treated as confidential.
For example, if an HR professional calls outside counsel for advice on investigating a sensitive discrimination complaint, that communication would be privileged. But if the same HR professional emailed their non-legal coworkers, with legal counsel on copy, to vent about the manager accused of discrimination, that communication may not be privileged because there was no legal advice requested or provided.
While the privilege protects confidential information shared by the client, as well as any advice given by the attorney in response, only the client holds the privilege. In the corporate context that means only the corporation may waive the privilege.
Nevertheless, a well-meaning HR professional could inadvertently waive the privilege on behalf of the corporation (meaning a previously privileged communication would now be subject to disclosure) by disclosing the privileged communication to a third-party, or by revealing the substance of the legal advice received to a third-party. Common missteps include statements such as, “our lawyer advised us that” and “based on our counsel’s advice, we plan to” that waive the privilege.
Making Best Use of Privilege
To effectively leverage the attorney-client privilege, and to avoid a waiver, consider these best practices as you communicate with legal counsel:
Ensure your communications are intended to seek legal advice. Identify the legal issue or advice sought before putting anything in writing. It isn’t sufficient to merely “cc” a lawyer or include a label of “privileged and confidential” on a communication with counsel that doesn’t actually seek or relate to legal advice.
Only include people who have a “need to know” the legal advice. Limit the number of people involved in communications with counsel to only those employees with a need to know the legal advice being sought. Avoid mass email chains, and inform recipients they shouldn’t forward or reveal the contents of the privileged communication.
Continue to engage the attorney in on-going communications. If a lawyer is removed from an email chain, but the discussion continues and/or more people are looped in, the privilege may be inadvertently waived or lost.
Consider communicating by phone or face-to-face. A verbal conversation with counsel is far less susceptible to being revealed (and the privilege waived) than an email, text, or instant message.
Don’t reveal privileged legal advice. Even if you have taken all necessary steps to ensure your privileged emails with legal counsel are conducted properly and safeguarded as confidential, the privilege could be waived down the road if you reveal the contents of the communication. Avoid statements such as, “I asked our lawyer A, B, C” or “our lawyer agrees that the contract means X, Y, Z,” because they could cause a waiver that would require your earlier written communications with counsel to be disclosed.