How Attorney-Client Privilege Works for Companies
Honesty between attorneys and clients is of paramount importance. If clients cannot tell the absolute truth to their attorneys, then they risk their lawyer having to deal with nasty surprises at trial. One way the law facilitates candid discussions between attorneys and their clients is with the attorney-client privilege. This privilege creates a veil of privacy over communications between attorneys and clients, so that attorneys cannot be forced to testify about things the client has told them.
This same privilege exists when the attorney is working for a company. However, it gets a little more complex. This is because when an attorney works for an organization, the organization itself is the client. This raises the question of how far the attorney client privilege extends because the organization has to speak through its executives and employees. Fortunately, the Supreme Court has provided an answer to this question in the case Upjohn v. United States.
Attorney-Client Privilege in General
In general, the attorney-client privilege is one of the policies that keep conversations between lawyers and clients secret. This privilege prevents attorneys or clients from being made to expose the details of their conversations as a result of discovery requests or other attempts to compel testimony. However, not every interaction between attorneys and clients is covered by the privilege.
In order to qualify for attorney client privilege, four things must be met. There must be (1) a communication (2) made in confidence (3) between a lawyer and client or their agents (4) for the purpose of obtaining legal advice.
A communication means that a lawyer’s observations are not covered by the privilege. For instance, a lawyer whose client hides a murder weapon and then tells the lawyer where it is cannot disclose the location, but if the lawyer happens to discover the murder weapon, that would not be privileged.
Made in confidence means that the conversation cannot be public. That does not necessarily mean that the lawyer and the client are the only two people who were present, but it generally requires that the other people present are there to facilitate communication between the lawyer and the client. One example of this would be a client bringing an accountant to a meeting.
The communication being between a lawyer and client or their agents means that the lawyer and the client themselves do not necessarily have to speak directly to each other. If the lawyer has a secretary call the client to give them information, that would still be protected.
For the purpose of obtaining legal advice merely means that only conversations about legal matters are privileged. Clients cannot claim privilege for conversations that have nothing to do with the law.
The Upjohn Doctrine
This four-factor test can be complicated by having a corporate client, because it becomes unclear when the “client” is talking to the attorney. The Supreme Court weighed in on this issue in Upjohn v. US, which centered around the question of whether a lawyer’s conversations with employees during an internal investigation were privileged. Courts had previously held that the privilege only applied when the lawyer talked with members of the company’s “control group,” which amounted to members of upper management. The Supreme Court rejected this notion in Upjohn, and instead extended the attorney-client privilege to any employee whose decisions were capable of substantially affecting the company’s legal position, a much broader test.
If your company is concerned about upcoming litigation, contact a Florida business litigation attorney at Pike & Lustig, LLP today. Our firm is here to provide honest, candid advice about how best to handle your situation.