In-House Counsel Communications: Protecting Attorney-Client Privilege and Work Product With Employee Statements

Best Practices During Litigation for Internal Communications and Taking Employee Statements

Recording of a 90-minute CLE webinar with Q&A

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Conducted on Thursday, October 22, 2020

Recorded event now available

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Course Materials

This CLE course will prepare in-house counsel to protect confidential business communications during investigations, discovery, depositions, and litigation through the proper exercise of the attorney-client privilege. The panel will discuss issues that arise regarding business advice versus legal advice, discoverable facts versus privileged communications, proving the applicability of attorney-client privilege, and other essential matters to assist in-house counsel.

Description

The in-house attorney's dual role as legal and business adviser to the corporation raises complex legal questions regarding conflicts of interest and the attorney-client privilege. A recent court decision illustrates the vulnerability of the attorney-client privilege, solidifying the fact that certain exceptions to the privilege can override the confidentiality of business communications in certain circumstances.

To increase the likelihood of success in asserting the attorney-client privilege in investigations, discovery, depositions, and future litigation, in-house counsel should carefully distinguish legal services from business advice in routine work matters. Counsel must also clearly indicate when acting in a professional legal capacity.

Once litigation has ensued, in-house counsel must make strategic determinations regarding which communications are potentially privileged and whether and how to invoke the privilege to protect those communications.

Listen as our panel of experienced practitioners explains how in-house counsel can distinguish between discoverable facts and privileged communications—and between business advice and legal advice. The panel will also provide strategies for supporting the application of the attorney-client privilege to certain communications.

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Outline

  1. Business advice versus legal advice
  2. Discoverable facts versus privileged communications
  3. Proving that attorney-client privilege applies to certain communications
  4. Preparing in-house counsel for depositions

Benefits

The panel will review these and other notable issues:

  • What steps can in-house counsel take to attempt to preserve the attorney-client privilege in certain communications?
  • What are the limitations of and exceptions to attorney-client privilege?
  • How can discoverable facts and privileged communications be distinguished?
  • What are the best practices for in-house counsel to make distinctions between business advice and legal advice?
  • How can in-house counsel prepare to address the privilege issues that arise during depositions?

Faculty

Hayes, Michael
Michael B. Hayes
Partner
Montgomery McCracken Walker & Rhoads

Mr. Hayes is a Partner at Montgomery McCracken, where his practice focuses on complex commercial litigation, internal...  |  Read More

McKay, Kenneth
Kenneth E. McKay
Shareholder
Baker Donelson

Mr. McKay has experience in a wide range of litigation areas. He concentrates on commercial litigation and real...  |  Read More

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