Like it or not, in-house counsel find themselves in a difficult situation. Much of a corporation s communication with outside and in-house counsel involves mixed legal and business advice. Corporations need comprehensive advice from counsel to ensure compliance with a myriad of complex laws and regulations. But it is often difficult to explain to corporate management that a court may interpret communications from a corporation to a lawyer as being for some purpose which does not qualify for the attorney-client privilege and that sensitive communications may have to be disclosed to a competitor during legal proceedings. But there are steps in-house counsel can take to minimize the likelihood that a corporation will be forced to disclose sensitive communications.
Communication needs to be with a client or prospective client.
There is generally little argument about whether in-house counsel s employer is a client. There should be no doubt that in-house counsel s client is the corporation or business entity, not individual executives in their individual capacity. Communication between in-house counsel and other corporate employees is also privileged as long as the communication is necessary to provide legal advice to the corporation. The communication must be with a lawyer who is a member of a bar of a court, or the lawyer s subordinate. The lawyer must be acting in a capacity as a lawyer.