A guide to leveraging attorney-client privilege as an HR professional

Vikrant Shetty

June 9, 2023

4:40 pm

A guide to leveraging attorney-client privilege as an HR professional

A legal principle known as the attorney-client privilege prevents some written and verbal exchanges between a client and an attorney from being made public. In plainer terms, the attorney-client privilege enables clients to receive legal counsel, be open and honest about their problems, and so do so without fear of their conversations being made public.

For instance, if an HR expert consults with outside counsel for guidance on looking into a delicate discrimination accusation, that conversation would be solicited or given. Suppose the same HR person emailed non-legal co-workers with legal counsel on copy to rant about the manager charged with discrimination. In that case, the attorney-client privilege might not protect such communication.

Utilizing Privilege to the Fullest:-

a)Make sure that the purpose of your communications is to seek legal counsel. Before writing anything, identifies the legal issue or advice sought. It is not sufficient to simply “cc” a lawyer or labels a communication with counsel as “Privileged and confidential” when the communication does not seek or relate to legal advice.

b)Don’t talk about legal advice. Even if you have taken every precaution to ensure that your privileged emails with legal counsel are carried out correctly and kept confidential, revealing the communication contest could result in the privileged being waved in the future.

The Generality of Attorney-Client Privilege and How Important It Is to HR Departments

The communication between the client and the attorney regarding information related to legal representation is protected by this privilege. This privilege does not belong to lawyers. They are solely meant for clients. Whether a communication’s “primary purpose” is to provide legal advice is a crucial inquiry used by the court to determine the presence of attorney-client privilege. Frequently, outside counsel will perform legal duties. Employers and HR departments typically seek legal advice rather than business advice when they hire outside counsel.

For instance, the attorney-client privilege will generally protect most communications with outside counsel. An employer can request that outside counsel conduct racial quality analysis of their entire business before filing a complaint to determine potential liability. However, these communications will not be protected if the employer hires an independent consulting firm to conduct the same analysis, and if the complaint is filed, they may be discovered.

Recent research:-

It has been held that the attorney-client privilege has applied to businesses for a long time. See United States v. Upjohn Co., 449 U.S. 383 (1981). However, it is not easy to ascertain the boundaries of this protection. It is determined on a case-by-case basis, depending on the subject matter of each communication, whether the Attorney-client privilege safeguards the communications of an in-house counsel not protected by the privilege. The corporate client must demonstrate that the in-house counsel’s communication was written to provide legal advice and to be kept confidential for the attorney-client privilege to safeguard the communication.

Conclusion:-

HR professionals frequently seek legal counsel for guidance on various legal; issues, including risk mitigation and compliance. An attorney-client privilege is a crucial tool for safeguarding confidential communication between HR professionals and legal counsel, whether in a one-time accommodation question or a months-long harassment investigation. HR professionals can talk to the company’s lawyer about sensitive information and troubling facts under the attorney-client privilege without worrying that the conversation might one day be seen by a judge, jury, or the public. However, do not assume that any email or conversation with a lawyer present will be confidential or protected from disclosure. HR professionals need to know the attorney-client privilege and how to use it to get the most out of its benefits.

Only the client owns the privilege, which safeguards the client’s confidential information and any advice the attorney provides in response. It indicates that only the corporation can waive the privilege in a corporate setting.

A legal principle known as the attorney-client privilege prevents some written and verbal exchanges between a client and an attorney from being made public. In plainer terms, the attorney-client privilege enables clients to receive legal counsel, be open and honest about their problems, and so do so without fear of their conversations being made public.

For instance, if an HR expert consults with outside counsel for guidance on looking into a delicate discrimination accusation, that conversation would be solicited or given. Suppose the same HR person emailed non-legal co-workers with legal counsel on copy to rant about the manager charged with discrimination. In that case, the attorney-client privilege might not protect such communication.

Utilizing Privilege to the Fullest:-

a)Make sure that the purpose of your communications is to seek legal counsel. Before writing anything, identifies the legal issue or advice sought. It is not sufficient to simply “cc” a lawyer or labels a communication with counsel as “Privileged and confidential” when the communication does not seek or relate to legal advice.

b)Don’t talk about legal advice. Even if you have taken every precaution to ensure that your privileged emails with legal counsel are carried out correctly and kept confidential, revealing the communication contest could result in the privileged being waved in the future.

The Generality of Attorney-Client Privilege and How Important It Is to HR Departments

The communication between the client and the attorney regarding information related to legal representation is protected by this privilege. This privilege does not belong to lawyers. They are solely meant for clients. Whether a communication’s “primary purpose” is to provide legal advice is a crucial inquiry used by the court to determine the presence of attorney-client privilege. Frequently, outside counsel will perform legal duties. Employers and HR departments typically seek legal advice rather than business advice when they hire outside counsel.

For instance, the attorney-client privilege will generally protect most communications with outside counsel. An employer can request that outside counsel conduct racial quality analysis of their entire business before filing a complaint to determine potential liability. However, these communications will not be protected if the employer hires an independent consulting firm to conduct the same analysis, and if the complaint is filed, they may be discovered.

Recent research:-

It has been held that the attorney-client privilege has applied to businesses for a long time. See United States v. Upjohn Co., 449 U.S. 383 (1981). However, it is not easy to ascertain the boundaries of this protection. It is determined on a case-by-case basis, depending on the subject matter of each communication, whether the Attorney-client privilege safeguards the communications of an in-house counsel not protected by the privilege. The corporate client must demonstrate that the in-house counsel’s communication was written to provide legal advice and to be kept confidential for the attorney-client privilege to safeguard the communication.

Conclusion:-

HR professionals frequently seek legal counsel for guidance on various legal; issues, including risk mitigation and compliance. An attorney-client privilege is a crucial tool for safeguarding confidential communication between HR professionals and legal counsel, whether in a one-time accommodation question or a months-long harassment investigation. HR professionals can talk to the company’s lawyer about sensitive information and troubling facts under the attorney-client privilege without worrying that the conversation might one day be seen by a judge, jury, or the public. However, do not assume that any email or conversation with a lawyer present will be confidential or protected from disclosure. HR professionals need to know the attorney-client privilege and how to use it to get the most out of its benefits.

Only the client owns the privilege, which safeguards the client’s confidential information and any advice the attorney provides in response. It indicates that only the corporation can waive the privilege in a corporate setting.

Vikrant Shetty

June 9, 2023

4:40 pm

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