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 video webinar with Q&A

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Conducted on Thursday, November 11, 2021

Recorded event now available

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Course Materials

This CLE course will prepare counsel (in-house and outside) to protect the attorney-client privilege over confidential communications with company employees and representatives in investigations and litigation, including document discovery and depositions. 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.


In-house counsel are frequently required to become involved in business decision-making, programs, and initiatives, in addition to serving as trusted legal advisors for their clients. The in-house counsel’s dual role as legal and business adviser to the corporation raises complex legal questions regarding the attorney-client privilege and potential conflicts of interest. Once an internal investigation, or a government inquiry, or civil litigation ensues, these and similar privilege questions and related issues become very immediate and very important to resolve, so the corporation can adequately protect and properly assert the privilege in the matter.

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

Once litigation (or a full-blown government inquiry or investigation) ensues, in-house counsel and any retained outside counsel must make strategic, informed decisions 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 counsel can distinguish between discoverable facts and privileged communications--and between business advice versus legal advice—with an eye towards protecting and preserving the privilege whenever possible. The panel will also provide strategies for supporting the application of the attorney-client privilege to certain communications.



  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


The panel will review these and other notable issues:

  • What steps can in-house counsel take to protect and preserve the attorney-client privilege over communications with company employees?
  • What limitations and exceptions to the attorney-client privilege are particular to the corporate context, and how are they continuing to evolve?
  • How can discoverable facts and privileged communications be distinguished in litigation and investigations?
  • 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 corporate privilege issues that arise during depositions?


Hayes, Michael
Michael B. Hayes

Litigation Chair
Horn Williamson

Mr. Hayes has been practicing in Philadelphia for more than 20 years. Previously, he was a partner with Montgomery,...  |  Read More

McKay, Kenneth
Kenneth E. McKay

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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