Black Box Tips: Maintaining Privilege Over Legal Advice Within an Organization | Denton


This week, Lisa McCreath looks at maintaining privilege over legal advice within an organization

Life’s greatest learning opportunities often come from things going wrong. Only companies that are properly invested in learning from their mistakes are truly positioned to maximize their potential.

The aviation industry has this down to a fine art. When things go wrong, the black box flight recorder makes sure their mistakes are “data rich”. This industry’s ability to learn from its mistakes has transformed it from one of the most dangerous modes of transportation to one of the safest.

The law is no different. As part of the world’s largest law firm, our litigation team is also ‘data rich’, so here we use our knowledge of why things go wrong to help you avoid litigation in the first place. or identify opportunities to fight your customer’s litigation. corner.

Maintain privilege over legal advice within an organization

Maintaining privilege over legal advice provided within an organization is difficult, particularly when electronic forms of communication allow easy and rapid dissemination of information.

The following practical steps should be considered.

  1. Is communication privileged? The fundamental principle is that confidential communications between the client and the lawyer for the purpose of obtaining legal advice are privileged. Being clear on which documents/communications are privileged is the starting point. In summary:
    • Privilege legal advice protects communications between lawyers and their clients in which legal advice is sought and given (in contentious and non-contentious matters). The client will generally be the person or core team within the firm responsible for giving instructions and authorized (expressly or by implication) to obtain legal advice on a given matter.
    • Litigation privilege protects confidential communications between attorneys, clients and third parties created for the primary purpose of existing or reasonably contemplated litigation.
  2. Mark all privileged communications as “legally privileged and confidential”. While not conclusive in determining whether a particular communication is privileged, implementing a labeling convention helps identify privileged content and alerts recipients to the confidential nature of the communication.
  3. Store privileged material separately from non-preferred material. Consider whether it would not be better to create two documents/lines of communication, one of which is clearly privileged and the other for purely commercial/administrative matters. These communications should be stored separately or encrypted to protect them from further communication.
  4. Avoid unnecessary/inadvertent dissemination of inside information. Legal advice should be shared strictly on a need-to-know basis (both internally and externally). In the event that advice needs to be shared outside of the client’s team (for example, to a parent company, insurer or accountant), specific advice should be taken to protect the lien.
  5. Maintain control over information gathering and document creation. In particular, employees who are not part of the client’s team should not create reports or documents relevant to the advice, but may provide factual material to the client’s team.
  6. Finally, choose your language very carefully if in doubt about the dominant subject of a communication. Unless you are certain that privilege will apply to the communication or document being prepared, avoid expressing opinions about the client’s position and keep written communications as factual as possible.

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