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Need-To-Know Rules For In-House Counsel

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November 16, 2020

The in-house lawyer achieves attorney-client privilege protection upon proving an attorney-client relationship with the entity that employs the person with whom she communicates, the communication is confidential and intended to remain confidential, and the communication is made for legal advice purposes. Those are the basics. But there are some added complexities, which are surveyed in this Today’s General Counsel column by Presnell on Privileges writer Todd Presnell. Some circuit courts have categorized those basic privilege elements in finer detail, adding waiver components, which can be complex and counterintuitive. One example: the “need-to-know” provision. “Resist the tell-all mindset when distributing legal advice,” says Presnell, because if the lawyer or anyone else shares those communications with individuals who don’t need to know, the privilege may be waived.

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