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By Todd Presnell
May 26, 2022
Todd Presnell is a trial lawyer in Bradley’s Nashville office. He is the creator and author of the legal blog Presnell on Privileges, presnellonprivileges.com, and provides internal investigation and privilege consulting services to in-house legal departments. tpresnell@bradley.com
Published in Today's General Counsel, June 2022
The pandemic ushered in a panoply of behavioral changes in the workplace, ranging from virtual conferences to repetitive use of now tiresome phrases such as “these uncertain times” and “the new normal.” These changes continue to evolve as organizations grapple with permanent work from home, all-office or hybrid office solutions. In the area of corporate communications, a rising concern is whether these behavioral transformations altered lawyers’ ethical duties of confidentiality and protection measures for the corporate attorney/client privilege. The answer evokes another aphorism — the more things change, the more they stay the same.
In-house lawyers with heightened privilege and confidentiality concerns are right to express their uneasiness with communicating in a non-office, remote setting. Fewer in-person meetings necessarily increases written communications through email, texts and other messaging platforms. This inevitably includes more employees copying in-house lawyers to “make it privileged.” When considering the company’s responses to future discovery requests, the company and its lawyers have more communications to review and produce, and more communications to wrangle with over privilege objections.
The ability to schedule a virtual meeting allows — and encourages — the organizer to invite more employees. For example, the traveling sales representatives who could not attend in-person meetings that involve in-house counsel can now join by video from a laptop computer from a hotel room or airport lounge. The increased number of attendees at gatherings where lawyers discuss legal issues raises confidentiality and privilege waiver concerns, especially when some join from unknown public places and through unprotected WiFi systems.
In contrast to these evolving technologies, the ethical confidentiality elements of the attorney/client privilege have remained static. Rules of professional conduct require all lawyers to maintain the confidentiality of their client’s information, which includes, but is broader than, client communications protected by the privilege.
The rule imposes obligations on lawyers to take reasonable precautions to prevent the unauthorized or inadvertent disclosure of privileged or confidential client information. An in-house lawyer can reasonably ask whether proper precautions exist in an atmosphere of increased electronic communications and amplified video conferences with invitees joining from wherever, sitting beside whomever.
The corporate attorney/client privilege has not changed because of workplace advancements either. It remains narrow, protecting confidential communications made for legal advice purposes. In-house lawyers must still ensure that they have the proper attorney/client relationship with the entity that employs the employees with whom they communicate about legal issues. They should take precautions to avoid losing confidentiality by putting too many persons on an email chain, or having employees join virtual video conferences from insecure places. Lawyers should improve training so employees understand that their actions can have privilege-waiver consequences. The legal advice component requires greater attentiveness because the line between an in-house attorney’s business and legal dealings within the corporate structure is likely blurrier in a world of increased written communications and virtual meetings.
If the ethical rules and the foundational elements of the attorney/client privilege have not changed, then why the heightened concern when working remotely? The concern arises because the new work environments allow greater opportunity to breach our obligations and waive privilege protections. So, while in-house lawyers should heighten their awareness of day-to-day privilege-protection protocols, they should specifically consider, or reconsider, the following five practice pointers:
In sum, in-house lawyers should have legitimate concerns about privilege protection as varied forms of remote work evolve. But rules are rules, and privilege is privilege. The workplace changes have simply exacerbated lawyers’ and employees’ opportunity to run afoul of those mandates. In other words, the more things change, the more they stay the same. We just have to be more vigilant in protecting the privilege.
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